678 A.2d 516 | Conn. Super. Ct. | 1995
This is an action to recover monetary damages under an indemnity agreement. On September 25, 1978, the plaintiff, Republic Insurance Company, and the defendants, Pat DiNardo Auto Sales, Inc., Patrick M. DiNardo, Julia DiNardo and Salvatore J. DiNardo, entered into an indemnity agreement. The agreement provided in part that the defendants would indemnify the plaintiff "from and against any and all liability, loss, costs, damages, attorney's fees and expenses of what ever kind or nature which [the plaintiff] may sustain or incur by reason or in consequence of executing any such bond or bonds as surety. . . ."
On October 26, 1978, the plaintiff, as surety, and the defendants, as principals, executed a surety bond for the completion of subdivision improvements for the town of Monroe (town), by the defendants. The plaintiff executed the surety bond in consideration for the defendants' signing the indemnity agreement. The defendants breached the terms of their contract with the town. As a result of the breach, the town filed an action against the defendants and against the plaintiff, pursuant to the bond. The plaintiff filed a cross complaint against the defendants. The defendants failed to file a responsive pleading to that cross complaint. The issues in the cross complaint were neither joined nor adjudicated. On May 13, 1991, in accordance with the findings of the attorney trial referee, the court, Spear,J., rendered judgment against the defendants and the plaintiff. In satisfaction and discharge of its obligation, the plaintiff paid the town $91,000 on May 2, 1991.
The plaintiff then brought the present action on December 18, 1992, to recover monetary damages from the defendants pursuant to the indemnity agreement. In response to the plaintiff's one count amended complaint *209 the defendants filed an answer and three special defenses; collateral estoppel, statute of limitations and failure to allege sufficient facts to prove the existence of an enforceable agreement. The plaintiff and the defendants filed trial memoranda in support of their respective claims. The court requested that the parties submit supplemental trial memoranda discussing the applicability of Public Acts 1993, No. 93-370 (P.A. 93-370), to the present action. Both parties complied with this request.
The defendants contend that because the plaintiff filed a cross complaint in the earlier action brought by the town, collateral estoppel bars the present action. "[C]ollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Citations omitted; internal quotation marks omitted.)Mulligan v. Rioux,
The plaintiff claims that it is entitled to recover monetary damages pursuant to its indemnity agreement with the defendants. The defendants claim that the statute of limitations for contract actions, General Statutes §
The indemnity agreement in the present action states that the defendants will indemnify the plaintiff "from and against any and all liability, loss, costs, damages,
attorney's fees and expenses of whatever kind or nature which [the plaintiff] may sustain or incur by reason or in consequence of executing any such bond or bonds as surety. . . ." (Emphasis added.) By its very terms, the agreement indemnifies against both loss and liability. See Balboa Ins. Co. v. Zaleski,
In Balboa, the Appellate Court addressed the issue of whether an action for indemnification based upon an agreement indemnifying against both loss and liability was barred by the statute of limitations on contract actions contained in §
In the present case, the defendants argue that, according to Balboa, the plaintiff could have sued upon the agreement as soon as the underlying contract with the town was breached. This breach occurred more than six years before this indemnity action was brought and, therefore, the action would be barred by the statute of limitations. The plaintiff argues that the cause of action accrued at the time of the payment, May 2, 1991, and that the statute of limitations would not bar the action.
During the pendency of this action, however, the General Assembly enacted P.A. 93-370, which, if applicable, renders moot the dispute as to the time the cause *211
of action accrued. P.A. 93-370, now codified as General Statutes §
The effective date of P.A. 93-370 is October 1, 1993. See General Statutes §
The legislature enacted P.A. 93-370 in response to the Appellate Court's decision in Protter v. BrownThompson Co.,
"When the language [of a statute] is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." Oller v. Oller-Chiang,
Since P.A. 93-370 was enacted during the pendency of this civil action, there is a question as to whether *213
and to what extent that enactment is retroactive. On occasion, the legislature itself has determined this issue with specific language in its legislation. See, e.g.,Champagne v. Raybestos-Manhattan, Inc.,
The Supreme Court has repeatedly addressed the issue of retroactivity in the absence of statutory guidance: "We begin our analysis by restating the general proposition that statutes of limitation are presumed to apply retroactively. See Moore v. McNamara,
In the context of the present case, these principles are contradictory. If "the statute of limitations in effect at the time [the] action is filed governs the timeliness of the claim"; id.; then that statute is §
What was said in Roberts v. Caton, supra,
In considering whether there is any basis for disregarding the legal presumption of retroactivity of this purely procedural statute, prior appellate case law does not provide an apt analogy with respect to the retroactive application of a statute of limitations to a common law action in the commercial context. See, e.g., Statev. Ross,
The defendants also claim that the plaintiff failed to prove that there was any consideration for two of the defendants, Julia DiNardo and Salvatore DiNardo, signing the indemnity agreement. With respect to this claim, Julia DiNardo and Salvatore DiNardo correctly observe that there was no evidence that either of them was an owner of Pat DiNardo Auto Sales, Inc., the third indemnitor.
The indemnity agreement provides, inter alia, "that Whereas, the undersigned [Pat DiNardo Auto Sales, Inc., Julia DiNardo, and Salvatore DiNardo], hereinafter referred to as indemnitors, have requested and do hereby request the REPUBLIC INSURANCE COMPANY . . . hereinafter referred to as Company, to execute or procure the execution of such bonds, undertakings and *219 recognizances (all of which will hereafter be included within the term bond) as have been, and such as may hereafter be, applied for . . . by the indemnitors or any one of them . . . and the Company, upon the express condition that this instrument be executed, and in consideration thereof, has executed or procured the execution of, and may from time to time hereafter execute or procure the execution of, such bond or bonds, it being understood that all such bonds shall be covered hereunder, whether or not it is specifically so stated or agreed at the time the application is made.
"NOW, THEREFORE, in consideration of the premises and the sum of One Dollar . . . this day paid by the Company to each of the indemnitors receipt of which is hereby acknowledged, the indemnitors, and each of them . . . jointly and severally, do hereby covenant and agree. . . .
"To indemnify the Company from and against any and all liability, loss, costs, damages, attorney's fees and expenses of whatever kind or nature which the Company may sustain or incur by reason or inconsequence of executing any such bond or bonds as surety or co-surety. . . ."
"[C]onsideration has been defined as a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." Finlay v. Swirsky,
The plaintiff has requested that it be awarded prejudgment interest and attorney's fees. With respect to the plaintiff's claim for interest, the law is that "[i]n its discretion in civil actions for the detention of money after it becomes payable, the trial court may award prejudgment interest. General Statutes §
With respect to the plaintiff's claim for attorney's fees, "`[t]he general rule of law known as the "American rule" is that attorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. SeeAlyeska Pipeline Service Co. v. Wilderness Society,
Here, the indemnity agreement expressly provides for the recovery from the indemnitor defendants of attorney's fees incurred by the plaintiff in the defense of the action brought on the bond by the town. With respect to such attorney's fees, the agreement provides that "the indemnitors . . . do hereby covenant and agree . . . [t]o indemnify the Company from and against any and all liability, loss, costs, damages, attorney's fees and expenses of whatever kind or nature which the Company may sustain or incur by reason or in consequence of executing any such bond or bonds as surety . . . and which it may sustain or incur . . . in defending . . . any action, suit or other proceeding which may be brought in connection therewith. . . ." Moreover, this agreement also provides in paragraph nine "[t]hat if the surety . . . executing any such bond . . . shall bring suit, action or proceeding to enforce any of the covenants or agreements herein contained, the cost, charges and expenses, including attorneys and counsel fees incurred by such surety . . . in prosecuting such suit, action or proceeding shall be included in any judgment or decree that may be rendered against the indemnitors therein." Accordingly, the plaintiff is entitled to compensation for the attorney's fees it incurred in defending the action brought by the town and in prosecuting this action.
A provision for attorney's fees in a contract means reasonable attorney's fees. Crest Plumbing HeatingCo. v. DiLoreto,
The plaintiff is awarded $91,000 in damages plus $40,000 interest plus $18,896.20 attorney's fees. Judgment is rendered in favor of the plaintiff and against the defendants in the amount of $149,896.20.