6 Conn. App. 212 | Conn. App. Ct. | 1986
This is an appeal from the rendering of summary judgment for three third party defendants on third party complaints brought by the defendant city of New Haven.
In its third party actions, the city claimed breach of contract and negligence against Barnes, and negligence against the others. Each third party defendant filed a motion for summary judgment on the ground that the city's negligence claim was barred by the three year statute of limitations contained in General Statutes § 52-584.
The trial court thus considered two clear cut issues: (1) whether the city of New Haven was vested with governmental immunity so that the city was immune from a statute of limitations running against it; and (2) if the city was not so immune, what statute of limitations applied to the city’s third party claims against the three third party defendants.
The court granted the third party defendants’ motions for summary judgment.
The city, as third party plaintiff, appeals from the judgment rendered against it and raises the two issues considered below: (1) whether the court erred in granting summary judgment to the third party defendants and in ruling that the city, in hiring an architect or structural engineer in connection with the construction of a public school building, was engaged in a proprietary function and not a governmental function, and was therefore bound by the ordinary statutes of limitations governing negligence and contract actions respectively;
I
Whether the City Was Immune from the Special Defense of Statute of Limitations
“The Connecticut Supreme Court has repeatedly stated that, as respects public rights, ‘a subdivision of the state, acting within its delegated governmental capacity, is not impliedly bound by the ordinary statute of limitations.’ State v. Goldfarb, 160 Conn. 320, 326, 278 A.2d 818 (1971); New Haven v. Torrington, 132 Conn. 194, 204, 43 A.2d 455 (1945); Bridgeport v. Schwarz Bros. Co., 131 Conn. 50, 54, 37 A.2d 693 (1944).” (Emphasis added.) Department of Transportation v. Canevari, 37 Conn. Sup. 899, 900-901, 442 A.2d 1358 (1982). The distinction between governmental and nongovernmental functions was clearly stated in Winchester v. Cox, 129 Conn. 106, 109, 26 A.2d 592 (1942): “The functions of a municipal corporation fall into two classes, those of a governmental nature, where it acts merely as the agent or representative of the state in carrying out its public purposes,
Although this case involves the city itself rather than its board of education, the reasoning of the court in Board of Education v. Dow Chemical Co., 40 Conn. Sup. 141, 142-43, 482 A.2d 1226 (1984), concerning sovereign immunity, is instructive. “The protections offered by the doctrine of sovereign immunity have been extended to agents of the state acting in its behalf. Cahill v. Board of Education, 187 Conn. 94, 101, 444 A.2d 907 (1982). A board of education is an agency of the state in charge of education in a town. Murphy v. Berlin Board of Education, 167 Conn. 368, 372, 355 A.2d 265 (1974). Local boards of education are not agents of the state, however, in performing each and every mandated function. Cheshire v. McKenney, 182 Conn. 253, 257, 438 A.2d 88 (1980). Local boards of education act as agents of the state when fulfilling the statutory duties imposed upon them by the legislature in light of the state constitutional mandate to furnish public education. Cheshire v. McKenney, supra, 257-58. Local boards of education also are agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality in its function of mandating control over the public schools within the municipality’s limits. Id., 258-59; Cahill v. Board of Education, supra, 101-102; see General Statutes §§ 10-220, 10-240.
“In determining whether a local school board is afforded the protections consistent with the doctrine of sovereign immunity, the courts look to whether the suit would operate to control or interfere with the activities of the state. Cahill v. Board of Education, supra, 102; Lostumbo v. Board of Education, 36 Conn. Sup. 293, 295, 418 A.2d 949 (1980). The maintenance of school property is not encompassed within the educa
The Supreme Court further articulated the appropriate test as follows. “[A] local board of education is bound by and may sue or be sued on contracts in the same manner as municipal corporations. 17 McQuillin, Municipal Corporations (3d Ed. 1968 Rev.) § 49.60, p. 310; 1A Antieau, Municipal Corporation Law (1982) § 10.08; see Light v. Board of Education, 170 Conn. 35, 41, 364 A.2d 229 (1975); Milford Education Assn. v. Board of Education, 167 Conn. 513, 520, 356 A.2d 109 (1975); Waterbury Teachers Assn. v. Board of Education, 162 Conn. 390, 416, 294 A.2d 546 (1972). A breach of contract between a local board of education and its employees does not give rise to a conclusion that such an action would operate to control the activities of the state or subject it to liability. Employment contracts in such circumstances remain primarily the function of the local communities, and any damages resulting from a breach of these contracts would be paid by the community, not the state. Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Lostumbo v. Board of Education, 36 Conn. Sup. 293, 296, 418 A.2d 949 (1980); cf. Somers v. Hill, 143 Conn. 476, 479-80, 123 A.2d 468 (1956). Sovereign immunity is therefore inapplicable in this case.” Cahill v. Board of Education, supra, 102.
Board of Education v. Dow Chemical Co., supra, is very similar to this case. In that case, a school board sought to recover for damages to the roofs of two schools allegedly caused by the use of the defendant’s insulation product. The court denied the plaintiff’s motion to strike the defendant’s special defense of statute of limitations. In so doing, the court reasoned that “a local school board acting to recover damages arising from the construction of the physical plant of a school building is not acting as a state agent and, therefore, would not be entitled to employ the doctrine of sovereign immunity as a shield from the defense of the statute of limitations.” Board of Education v. Dow Chemical Co., supra, 143.
The trial court in this case, relying on New Haven v. Torrington, 132 Conn. 194, 204, 43 A.2d 155 (1945), held that Connecticut has extended immunity from a statute of limitations defense to municipalities when
Applying this narrow definition here, it is clear that the city’s contract and negligence claims against the third party defendants concern “private rights” and not rights in which all people of the state are interested. Although the state supplies substantial financial support to the building of public schools, the construction of a public school by the city in this case is clearly a local function. The ultimate and total responsibility under the school construction contracts involved here vests with the city.
The court did not err in concluding that the umbrella of governmental immunity did not cover the city from the special defense of statute of limitations.
Which Statute of Limitations Applies
The city argues that General Statutes § 52-584a
In considering the city’s claims, we are guided by well known canons of statutory construction. “[Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” (Citation omitted.) Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 109, 214 A.2d 354 (1965). In interpreting two separate acts, if this court “ ‘can by any fair interpretation find a reasonable field
It is also clear that “[w]here the meaning of a statute is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. Holmquist v. Manson, 168 Conn. 389, 393, 362 A.2d 971 (1975); Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36 (1967); State v. Springer, 149 Conn. 244, 248, 178 A.2d 525 (1962).” Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979). Finally, if construction of a statute is necessary, “ ‘a court considers its legislative history, language, purpose and the circumstances surrounding its enactment. Delinks v. McGowan, 148 Conn. 614, 618, 173 A.2d 488; Cassidy v. Tait, 140 Conn. 156, 160, 98 A.2d 808.’ State v. Sober, 166 Conn. 81, 91n, 347 A.2d 61 [1974].” Winchester v. Connecticut State Board of Labor Relations, 175 Conn. 349, 356, 402 A.2d 332 (1978).
The city’s argument fails on all of these canons of statutory construction. In construing subsection (d) of General Statutes § 52-584a as part of the overall statute, the court made a cogent and logical conclusion. Any other interpretation would render subsection (d) meaningless. The city claims that subsection (d) was intended to make certain that this seven year statute would not be applied retroactively to any pending claim. Even under this argument, subsection (d) would become
It may be argued that the fact that contract and tort actions are specifically mentioned in General Statutes § 52-584a evidences an intent that the new seven year statute be the statute of limitations for actions involving architects and engineers. This inference is rebutted, however, by the opening phrase of General Statutes § 52-584a which states “notwithstanding any provision of the General Statutes,” by the language of § 52-584a (d), and by the entire background of § 52-584a.
A review of the state of the law at the time General Statutes § 52-584a was passed is necessary to understand clearly the law’s intent of the new act. Two emerging trends in modern tort law, the fall of the privity barrier and the death of the “completed and accepted” rule, greatly increased architect’s and engineer’s potential liability. See 2 Restatement (Second), Torts § 385; Prosser, Torts § 104. Under the “completed and accepted” rule, the liability of a design professional or builder terminated when the improvement was finished and accepted by the owner. See Mann v. Leake & Nelson Co., 132 Conn. 251, 43 A.2d 461 (1945). In Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), our Supreme Court eroded this rule by upholding a negligence action by a subsequent purchaser of a house against the defendant, who
The American Institute of Architects, the National Society of Professional Engineers and the Associated General Contractors responded to these developments by endorsing a model act, and legislatures in some thirty states passed laws incorporating some of the provisions of the act. Cotter, “Limitation of Actions Statutes for Architects and Builders — Blueprints for Non-Action,” 18 Cath. U.L. Rev. 361 (1969). Commenting upon this type of legislation, Cotter, supra, 367-68, states that “statutes requiring actions to be brought only within the stated time period may explicitly stipulate that the enactment neither extends nor limits periods otherwise prescribed for commencement of any action, and thus expressly incorporate other provisions to govern the time period for bringing the action once the injury has occurred.” (Emphasis added.) It is clear, given this history, that the model act was drafted not to preempt existing statutes of limitations but to provide these professions additional protection.
“Section 28-314 provides in substance that all such actions shall be brought within four years after substantial completion of the improvement. . . . Section 28-316, provides in substance that nothing in 28-314 to 28-318 shall be construed as extending the period or periods provided by the laws of Tennessee for the bringing of any action ....
“The four-year statute of limitations as imposed by § 28-314, is but an outer limit or ceiling. This is not a conventional statute of limitations. Sec. 28-316 makes it clear that these statutes do not extend the ‘period, or periods provided by the laws of Tennessee . . . for the bringing of any action.’ This wording effectively says that the limitations imposed by Sec. 28-304 (one-year personal injury) and 28-305 (three-year property damage) are applicable in a limited sense. Sec. 28-314 et seq. are simply superimposed upon existing statutes. Suits for personal injuries and for property damage must be brought within one and three years, respectively, from and after the date of injury or damage, or the date of such injury or damage was discovered or should have been discovered with reasonable care and diligence, subject to the ceiling imposed by Sec. 28-314 et seq. . . .
We conclude, from all of the above, that § 52-584a was not intended to give more time than the contract and negligence statutes of limitation may give when applicable, as in the present case. The intent of the seven year statute, and its clear mandate, was to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion, regardless of the nature of the claim, while leaving any other lesser limitations in effect.
The court was not in error in concluding that the third party plaintiff’s contract action against Barnes was barred by General Statutes § 52-576 and its negligence claims against all three third party defendants was barred by General Statutes § 52-584.
There is no error.
General Statutes § 52-584 provides in pertinent part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”
General Statutes § 52-576 provides in pertinent part: “(a) No action ... on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”
Although the court did not specifically rule on the city’s counter motion for partial summary judgment, it impliedly denied that motion when it granted the motions filed by the third party defendants.
The defendant Barnes contends that the city waived its right to claim immunity by not filing a motion to strike his statute of limitations defense. The defendants Spiegel and Van Zelm claim waiver by the city’s failure to plead immunity as a matter in avoidance of the statute of limitations. In response to defendant Barnes’ claim, the city contends that it was not required to file a motion to strike. In response to defendants Van Zelm and Spiegel, it argues that there is no waiver because the city’s complaint contained allegations constituting a claim of immunity and because the claim was fully litigated at trial.
The third party defendants’ claims of waiver were not raised during the trial court’s consideration of the motions for summary judgment. Under these circumstances, we could decline to consider the matter further. Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983). We note, however, that the issue of sovereign immunity was raised in the city’s brief before the trial court and was fully litigated. Thus, the normal rule of waiver cited in Marlin Rockwell Employees Credit Union v. Brown, 3 Conn. Cir. 569, 571, 221 A.2d 862 (1966), is inapplicable.
The city, in its reply brief to Barnes’ brief, citing McEvoy v. Waterbury, 92 Conn. 664, 666, 104 A. 164 (1918), argued for the first time that the city’s indemnification claim, based upon a breach of contract by defendant Barnes, was timely filed because the statute of limitations does not begin to run until judgment against the plaintiff is rendered. Later, in reply to Spiegel’s arguments in its brief, which Spiegel was not entitled to make since no such claim was filed against it, the city restated its claim and argued that the period of limitations on a third party contract claim does not begin to run until the third party defendant is impleaded. We decline to consider this claim of error. “Claims of error by an appellant must be raised in his original brief; Practice Book § 3060F; so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 403 n.6, 499 A.2d 64 (1985).
General Statutes § 52-584a provides in pertinent part as follows: “(a) Notwithstanding any provision of the general statutes, no action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency ... or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement. . . . (d) Nothing in this section shall be construed to extend the period prescribed by the laws of this state for the bringing of any action.”
Several other jurisdictions have construed statutes similar to General Statutes § 52-584a and have concluded that such statutes establish an outer limit only. See Lee v. Fister, 413 F.2d 1286 (6th Cir. 1969) (Kentucky law);