JUDGES: ARNOLD, J.
OPINIONBY: ARNOLD
OPINION: MEMORANDUM OF
DECISION MOTION FOR SUMMARY JUDGMENT ( # 118)
The plaintiff, United States Fidelity and Guaranty Co., an insurer
subrogated to the rights of Lorenzo, Angelina, Gennaro and Rita Contadino,
filed a one-count complaint in September 28, 1993 sounding in negligence
against the defendant Sonitrol Services Corp. The complaint alleges that the
defendant contracted with the Contadinos to install, maintain and monitor a
central station fire
alarm system at property in Byram, Connecticut.
The property was consumed and destroyed by fire. The complaint alleges that
the damages were the result of an inadequate and malfunctioning fire
alarm system. The defendant filed a motion for summary judgment as to
damages on September 15, 1995. The plaintiffs filed a memorandum in
opposition on March 8, 1996.
The standard of
[*2]
a trial court's decision to grant a motion for summary judgment is well
established. "Practice Book § 384 provides that
HN1
summary
judgment shall be rendered forthwith if the pleadings, affidavits and any
other proof submitted show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving party." Barrett v.
Danbury Hospital, 232 Conn. 242, 654 A.2d 748 (1995).
The defendant argues that the written fire
alarm system installation
and service agreement contained a limitation of damages clause limiting
damages to $ 250.00, and the clause is valid and enforceable. Printed in
capital letters on the front of the
contract is a clause which
states, in relevant part, "Client acknowledges that Sonitrol's liability is
limited as set forth in paragraph [sic] 12, and accepts the limits set forth
therein. Client acknowledges that the system installed is as requested and
is suitable for his purpose, and unless defects or omissions are called to
Sonitrol's attention, in writing, within five (5) days after
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completion of installation accepts the system as is. Client acknowledges
that additional protection may be obtained at additional cost. Sonitrol
makes no guaranty, representation or warranty including that of
merchantability or fitness for particular purpose. . . ." Paragraph twelve
states that Sonitrol is not an insurer, and insurance is the buyer's
responsibility, that contractual payments are unrelated to the value of
client's property, that it is impractical and extremely difficult to fix
actual damages resulting from Sonitrol's breach or a failure or malfunction
of the system, and states that "if SONITROL should be found liable for any
loss or damage due from failure to perform any of its obligations or a
failure of the equipment to properly operate, SONITROL'S liability shall be
limited to a sum equal to the total of six monthly payments or two hundred
fifty dollars, which ever is the lesser . . . ." The paragraph concludes by
stating that if the owner wishes Sonitrol to assume greater liability than
the above, the owner could obtain a higher limit by paying an additional
amount to Sonitrol.
The plaintiff argues that the clause is a liquidated damages clause, and as
such it
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does not meet the three-prong test for a valid liquidated damages provision
outlined in Berger v. Shanahan, 142 Conn. 726, 732, 118 A.2d 311 (1995).
HN2"[A]
contractual provision fixing the amount of damages to be paid in the event
of a breach is enforceable if it satisfies certain conditions. . . . (1) The
damage which was to be expected as a result of a breach of the
contract
was uncertain in amount or difficult to prove; (2) there was an intent on
the part of the parties to liquidate damages in advance; and (3) the amount
stipulated was reasonable in the sense that it was not greatly
disproportionate to the amount of the damage which, as the parties looked
forward, seemed to be the presumable loss which would be sustained by the
contractee in the event of a breach of the
contract." Berger v.
Shanahan, supra, 142 Conn. 732.
A number of Connecticut Superior Court cases have addressed the issue of
liquidated damages provisions in fire and theft
alarm installation,
testing and monitoring agreements. The provisions have been upheld. Benjamin
v. Detect, Superior Court, Judicial District of Danbury, 1996 Conn. Super.
LEXIS 248 (Jan. 26, 1996, Moraghan, J.); Convenient
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Petroleum Corp. v. Sonitrol Communications Corp., Superior Court, Judicial
District of Hartford/New Britain, 1992 Conn. Super. LEXIS 1737 (June 12,
1992, Wagner, J., Conn. L. Rptr. 556); Hanover Insurance Co. v. American
District Telegraph Co., Superior Court, Judicial District of New Haven, 1991
Conn. Super. LEXIS 2790 (Dec. 4, 1991, Stengel, J., 5 Con. L. Rptr. 324);
Hunter's Consignment, Inc. v. Sonitrol of Western Connecticut, Superior
Court, Judicial District of Danbury, 1994 Conn. Super. LEXIS 203 (Nov. 14,
1994, Mihalakos, J., 12 Conn. L. Rptr. 687).
The plaintiff argues that there is an issue as to the second and third prong
of the test. The plaintiff provides an affidavit from Lorenzo Contadino
stating that no one from Sonitrol pointed out to him paragraph 12C on the
back of the form.
HN3"Where
there is definitive
contract language, the determination of what the
parties intended by their contractual commitments is a question of law."
Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 158, 595 A.2d 872
(1991). Furthermore, "in situations in which the parties have their
agreement in writing, their intention is to be determined from its language
and
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not on the basis of any intention either my have secretly entertained."
(Internal quotation marks omitted.) Thompson & Peck, Inc. v. Harbor Marine
Cons. Corp., 203 Conn. 123, 130, 523 A.2d 1266 (1987); Water & Way
Properties v. Colt's Mfg. Co., 230 Conn. 660, 666, 646 A.2d 143 (1994) ("the
inquiry must focus on the intention expressed in the lease and not on what
intention existed in the minds of the parties."). The affidavit stating that
Sonitrol did not point out the language to him does not create a genuine
issue of material fact as to intent. Furthermore, the
contract
language is plain and unambiguous, and the plaintiff cannot now question the
intent of the parties.
As to the third prong, the reasonableness of the amount stipulated, the
Second Circuit, in interpreting Connecticut law in a case similar to the one
before the court, stated that,
HN4"[t]he
supplier . . . is paid for its equipment and services, and the price does
not generally include a sum designed to anticipate the possible need to pay
the purchaser the value of the property that the system is to protect. The
owner or custodian of the property is in a far better position than the
alarm system seller
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to know the property's value and to bargain with an insurance company for
appropriate coverage and an appropriate premium." Leon's Bakery, Inc. v.
Grinnell Corp., 990 F.2d 44, 49 (2nd Cir. 1993). The property owners in the
instant case understood that it was their responsibility to procure such
fire insurance, and they did purchase said fire insurance. In addition, the
plaintiff premises owners were given the option of purchasing greater
protection with higher damage limits, but they chose not to pay for the
extra protection.
Accordingly, partial summary judgment is granted in favor of the defendant,
Sonitrol, limiting the damages recoverable by the plaintiff, if any, to a
maximum of $ 250.00.
ARNOLD, J.
