46 Conn.Supp. 101, 738 A.2d 1179,
25 Conn. L. Rptr. 300
Superior Court of Connecticut,
Judicial District of Hartford.
George WYER et al.
v.
SONITROL SECURITY SYSTEMS OF HARTFORD, INC.
No. CV980578088S.
Aug. 16, 1999.
Homeowners brought breach of contract action against security system company
arising from burglary of home. Company moved for summary judgment. The
Superior Court, Judicial District of Hartford, Rittenband, J., held that:
(1) fact issues as to proximate cause of damages and discussions as to
obtaining a higher limit of liability from company precluded summary
judgment, and (2) liquidated damages provisions in contract were not
enforceable.
Motion denied.
West Headnotes
[1] KeyCite Notes
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
228k185(6) k. Existence or Non-Existence of Fact Issue. Most Cited
Cases
Trial court may appropriately render summary judgment when documents
submitted demonstrate that there is no genuine issue of material fact
remaining between the parties and that moving party is entitled to judgment
as a matter of law.
[2] KeyCite Notes
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
228k185(2) k. Presumptions and Burden of Proof. Most Cited Cases
Party moving for summary judgment has burden of showing absence of any
genuine issue of material fact.
[3] KeyCite Notes
228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
228k185(2) k. Presumptions and Burden of Proof. Most Cited Cases
To satisfy burden of showing absence of any genuine issue of material fact,
as required for summary judgment, movant must make showing that it is quite
clear what the truth is and that there is no doubt as to existence of a
genuine issue of material fact.
[4] KeyCite Notes
372 Telecommunications
372IV Special Services or Activities
372k463 k. Alarm Systems. Most Cited Cases
Homeowner could not claim benefits of contract for home security services
and at same time deny that liquidated damages section of contract was
inapplicable to her since she did not sign contract; it was inconsistent for
homeowner to claim breach of a contract to which she was not bound by a
portion thereof because she did not sign contract.
[5] KeyCite Notes
228 Judgment
228V On Motion or Summary Proceeding
228k181 Grounds for Summary Judgment
228k181(15) Particular Cases
228k181(19) k. Contract Cases in General. Most Cited Cases
Genuine issues of material fact existed as to whether homeowners' damages
arising from burglary were proximately caused by alleged failure of alarm
system and whether security system company dissuaded homeowners from
obtaining a higher limit of liability despite absolute right to obtain the
same, precluding summary judgment in homeowners' breach of contract action
against company arising from burglary.
[6] KeyCite Notes
115 Damages
115IV Liquidated Damages and Penalties
115k75 Construction of Stipulations
115k77 k. Intent of Parties. Most Cited Cases
115 Damages
115IV Liquidated Damages and Penalties
115k75 Construction of Stipulations
115k79 Certainty as to Amount of Actual Damage
115k79(1) k. In General. Most Cited Cases
115 Damages
115IV Liquidated Damages and Penalties
115k75 Construction of Stipulations
115k80 Proportion of Sum Stipulated to Actual Debt or Damage
115k80(1) k. In General. Most Cited Cases
Liquidated damages provisions in contract for home security services were
not enforceable, where damages arising from burglary and theft of jewelry
were not uncertain or difficult to prove, there was evidence that homeowners
did not intend to liquidate damages in advance, and actual damages of $6800
were greatly disproportionate to amount of liquidated damages claimed by
security system company, that being approximately $198.
Erik S. Young, Malborough, for the plaintiffs.
Halloran & Sage, for the defendant.
RITTENBAND, J.
I
INTRODUCTION
This appears to be a case of first impression in Connecticut at least as to
the factual situation involved.
II
FACTS AND PROCEDURE
The plaintiffs, George Wyer and Beth Wyer, allege that in May, 1994, they
contracted with the defendant, Sonitrol Security Systems of Hartford, Inc.
(Sonitrol), for the installation and monitoring of a security system for
their residence in Marlborough. The plaintiffs allege that the security
system was improperly hooked up and was not properly functioning. They
further allege that on February 27, 1995 their residence was burglarized,
the illegal entry was not detected by the security system and that it failed
to signal an alarm for law enforcement response, thereby causing $6800 in
jewelry to be stolen.
This action has been brought in two counts. Count one is in negligence, and
count two is in breach of contract. This court has already, orally, granted
summary judgment as to count one based upon the fact that the statute of
limitations had expired in favor of the defendant as to the negligence claim
when the suit was instituted on or about February 18, 1998. That oral
granting of summary judgment to the defendant on the first count is hereby
ratified and reaffirmed.
As for the second count, breach of contract, the defendant has moved for
summary judgment on two grounds. First, the defendant claims that there is a
liquidated damages clause in the contract which limits a judgment to a sum
equal to the total of one half of the year's monitoring payments or $500,
whichever is less, "as liquidated damages and not as a penalty." The
defendant claims that one half of the year's monitoring payments amounts to
$198.44.
Second, the defendant claims that, as a matter of law, the failure of an
alarm system is not the proximate cause of damages allegedly sustained as a
result of the theft and relies on Vastola v. Connecticut Protective System,
Inc., 133 Conn. 18, 47 A.2d 844 (1946).
The plaintiffs have countered with a brief in opposition to these two claims
and have added the claim that plaintiff Beth Wyer, wife of the named
plaintiff, was not a signatory to the contract, and, therefore, cannot be
held liable for the liquidated damages defense.
III
STANDARD OF REVIEW
[1] "A trial court may appropriately render summary judgment when the
documents submitted demonstrate that there is no genuine issue of material
fact remaining between the parties and that the moving party is entitled to
judgment as a matter of law." Burns v. Hartford Hospital, 192 Conn. 451,
455, 472 A.2d 1257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn.
8, 11, 459 A.2d 115 (1983).
[2] [3] A party moving for summary judgment has the burden of showing the
absence of any genuine issue of material fact. Dougherty v. Graham, 161
Conn. 248, 250, 287 A.2d 382 (1971). To satisfy this burden, the movant must
make a showing that it is quite clear what the truth is and that there is no
doubt as to the existence of a genuine issue of material fact. Plouffe v.
New York, N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The test
that has been stated is: "In deciding a motion for summary judgment, the
trial court must view the evidence in the light most favorable to the
nonmoving party.... The test is whether a party would be entitled to a
directed verdict on the same facts." (Internal quotation marks omitted.)
Cummings & Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 1040 (1991).
IV
ISSUES
[4] First, the claim by the plaintiffs that plaintiff Beth Wyer did not
sign the contract and, therefore, is not bound by the liquidated damages
section of the contract is without merit. It is inconsistent for that
plaintiff to claim the breach of a contract to which she claims she is not
bound by a portion thereof because she did not sign the contract. No claim
has been made as to a third party beneficiary, and even if it had been made,
it is clear that by claiming that she is not bound by the liquidated damages
clause because she did not sign the contract, she is denying that she is a
part of the contract in any way. Hence, she cannot claim the benefits of a
contract and at the same time deny those provisions that are unfavorable to
her.
Second, this court finds that Vastola is not conclusive as to the facts of
the present case. Vastola overturned the finding by the trial court on
behalf of the plaintiff because the trial court had decided by inference
and/or speculation that the damages were proximately caused by the breach of
contract. The court in Vastola stated that: "It is a reasonable inference
that someone would have heard the bell if it had rung. Beyond that, it
cannot be known what would have happened. We may speculate whether the
hearer would have known that it was a burglar alarm, whether he would have
ventured to interfere, whether he would have succeeded in frightening away
the intruder in time to prevent the larceny, and whether he would have
summoned the police in time to capture or frighten away the burglar."
Vastola v. Connecticut Protective System, Inc., supra, 133 Conn. at 21, 47
A.2d 844.
However, although the Supreme Court found that the "meager facts found in
this particular case"; id., at 20, 47 A.2d 844; did not reasonably support
an inference that the defendant's negligence was a proximate cause of the
loss by burglary, the court did leave open the possibility of a finding of
proximate cause based on a different set of facts. The court stated that:
"There is no finding that there were people in the street at this early
morning hour, that there was a police officer on patrol in the neighborhood,
or that there was a police station in the vicinity." Id., at 21, 47 A.2d
844.
[5] In the present case, in an affidavit dated June 10, 1999 by the named
plaintiff, it is clear that there were more substantial facts on which to
rely for probable cause than in Vastola. In paragraph 5 of that affidavit,
the named plaintiff states that: "Trooper Megin, the resident trooper,
responded immediately being just down the road at the time, and the
perpetrator fled, having taken most of our jewelry but leaving other
valuables in plain sight, obviously being frightened off by the motion alarm
which eventually went off and the police siren." (Emphasis added.)
The affidavit further states that if the alarm had been properly wired, the
intruder may not have entered the house at all or would have been caught by
the trooper who arrived almost at the time the perpetrator fled. The
important part of this latter statement is the factual statement that the
trooper arrived almost at the time the perpetrator fled, leading to a
reasonable inference that if the alarm had gone off properly, the trooper
would have arrived before the perpetrator fled. It may well be that the
close proximity of the trooper to the house and the time at which he arrived
just prior to the fleeing of the perpetrator may not be sufficient for the
trier of fact to draw the inference that there was proximate cause. However,
in the present case, these facts as set forth in the affidavit go beyond the
"meager" facts in Vastola. In any event, whether the trier of fact finds
these allegations or statements to be true and whether they rise under all
the circumstances of the present case to a basis for probable cause is an
issue of fact which should be decided by the trier of fact. The facts in the
present case as alleged by affidavit clearly go beyond the meager facts in
Vastola. Therefore, Vastola is not applicable to the present case, and there
is a genuine issue of fact as to the veracity or validity of these facts,
and it is an issue of fact for the trier to decide whether these additional
conditions are sufficient to warrant a finding of proximate cause after
proximate cause has been explained by the trial court in a jury case or by
its own knowledge in a court trial. It must be remembered that Vastola was a
case in which a judgment was entered for the plaintiff by the trier of fact,
namely, the judge, in a court case, and all the evidence had been produced.
The Supreme Court believed that the evidence produced was inadequate for the
trier of fact to draw the inference it did. Here, we are talking about a
motion for summary judgment, and based upon Vastola, it is clearly up to the
trier of fact to determine whether these additional facts are sufficient to
constitute proximate cause. The fact that in Vastola the issue was decided,
although incorrectly, according to the Supreme Court, by the trier of fact,
certainly indicates that it is up to the trier of fact to make this
determination and that, therefore, it is an issue of fact to be determined.
Accordingly, these issues cannot be decided, in the present case, on a
motion for summary judgment.
[6] The third issue is the enforceability of the liquidated damages
provisions. Paragraph 12A of the contract states in pertinent part that the
defendant is not an insurer and that insurance, if any, covering property
loss or damage, shall be obtained by the plaintiffs, and that the payments
provided for are based solely on the value of the services as set forth and
are unrelated to the value of the clients' property.
Paragraph 12B states further that the plaintiffs acknowledge that it is
impractical and extremely difficult to fix the actual damages which may
proximately result from the failure to perform any of the defendant's
obligations because of, among other things, the uncertain amount or value of
the plaintiffs' property or the property of others which may be lost or
damaged, the uncertainty of the response time of the police or other
authority, and, the inability to ascertain what portion, if any, of any loss
would be proximately caused by the defendant's failure to perform. The next
paragraph, 12C, describes the limitation of one half of the year's
monitoring payments or $500, whichever is less, "as liquidated damages and
not as a penalty". In New York Life Ins. Co. v. Hartford National Bank &
Trust Co., 2 Conn.App. 279, 280-81, 477 A.2d 1033 (1984), our Appellate
Court stated that: "Three conditions must be met in order to uphold a
contractual provision for liquidated damages. They are (1) that the damages
are uncertain or difficult to prove; (2) that the parties intended to
liquidate damages in advance; and (3) that the amount is reasonable because
it is not greatly disproportionate to the amount of damages which the
parties assumed at the time of their contract would be sustained if the
contract were breached."
This court finds that these provisions have not been met. The damages were
not uncertain or difficult to prove. The plaintiffs came up with the figure
of $6800 in lost jewelry as damages. The plaintiffs easily ascertained that
amount, and certainly, as in a jewelry insurance floater on a homeowner's
policy, (and the court recognizes that the defendant has rightfully claimed
that it is not an insurer) a list or inventory of the jewelry could have
been furnished and checked at or shortly after the time of the execution of
the contract. As for whether the parties intended to liquidate damages in
advance, there is evidence that the plaintiffs did not so intend despite the
language in the contract which will be described hereafter. As to whether
the amount is reasonable because it is not greatly disproportionate to the
amount of damages which the parties assumed at the time of their contract
would be sustained if the contract were breached, this court finds that the
amount is clearly greatly disproportionate. The actual damages were $6800,
and the amount of liquidated damages claimed by the defendant is only
$198.44. That is clearly greatly disproportionate. For these reasons,
failing to meet at least two of the three requirements and possibly the
third, the court finds that this language in the contract is not a proper
liquidated damages clause and, is, therefore, not enforceable.
The fourth and final issue is breach of contract by the defendant. Paragraph
12D of the contract provides that: "In the event that the client
[plaintiffs] wishes dealer [defendant] to assume greater liability, client
may, as a matter of right, obtain from dealer a higher limit by paying an
additional amount to dealer, and a rider shall be attached hereto setting
forth such higher limit and additional amount, but this additional
obligation shall in no way be interpreted to hold dealer as an insurer."
(Emphasis added.)
The court recognizes that, according to the provisions of paragraph 16 [FN1]
of the contract, anything or any statement or representation made that is
not in the contract is not part of the contract. According to paragraph 7 in
the affidavit dated May 12, 1999 by the named plaintiff, however, he claims
that he was assured by the defendant that the purchase as a matter of right
of a higher limit of liability of the defendant would not be necessary.
Paragraph 7 of that affidavit states in full: "Despite knowing of our
concerns, I was never offered nor given the opportunity to obtain any
additional coverage for the jewelry from Sonitrol as I was assured it would
not be necessary." (Emphasis added.) This representation by the defendant
may not be in the contract itself, but it certainly appears to be a breach
of that aforementioned portion of the contract because, depending upon what
was said, the defendant dissuading the plaintiff from obtaining a higher
limit of liability despite his absolute right to obtain the same would be a
misrepresentation that would constitute a breach of the contract. At the
very least, this is an issue of fact to be decided by the trier of fact.
FN1. Paragraph 16 of the contract provides: "It is mutually understood and
agreed that any representative, promise, advertising, or other statement,
condition inducement or warranty, express or implied, whether written or
verbal, not included in writing in this Agreement shall not be binding upon
any party and that the Agreement may not be altered, modified or otherwise
changed at any time except with the written consent of each of the parties
hereto, and in the form of an addendum to this Agreement. If any of the
terms or conditions of this Agreement shall be declared invalid or
inoperative, all of the remaining terms and conditions
shall remain in full force and effect."
The court also notes from the yellow copy of the contract submitted into
evidence that the terms on the back, including the limit of liability
provisions, are essentially unreadable. If the plaintiffs never saw or were
never given a readable copy of the back of the contract, it is questionable
whether those provisions apply to the plaintiffs. The court has to presume
that the plaintiffs were aware of these provisions. Otherwise, the named
plaintiff would not have requested an increase in the limit of liability.
V
CONCLUSION
For all of the foregoing reasons, there are genuine issues of material fact
which must be decided by the trier of fact as well as issues of law which do
not favor the defendant. Accordingly, the defendant's motion for summary
judgment is denied.
Conn.Super.,1999.
Wyer v. Sonitrol Sec. Systems of Hartford, Inc.
46 Conn.Supp. 101, 738 A.2d 1179, 25 Conn. L. Rptr. 300
END OF DOCUMENT