2003 WL 1908252 (Conn.Super.), 34 Conn. L. Rptr. 562
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.



Superior Court of Connecticut,
Judicial District of Ansonia-Milford.
James TOTH dba Shelton Pawn and Jewelry,
v.
Walter K. CLARK dba Dictograph Security Systems.
No. CV02077296S.
April 1, 2003.
Lyons, Tuccio & Gallant, Ansonia, for James Toth.
Howd & Ludorf, Hartford, and Pete Rotatori, III, Naugatuck, for Walter K.
Clark.
Trotta, Trotta & Trotta, New Haven, for Monital Signal Corp.


HOLDEN, J.
Presently before the court is the defendant Clark's motion for summary
judgment filed on October 24, 2002, and the plaintiff's objection thereto
filed on November 27, 2002. The plaintiff is James Toth, doing business as
Shelton Pawn and Jewelry (Shelton Pawn), while the defendants are Walter
Clark, doing business as both Dictograph Security Systems (Dictograph) and
as Western Connecticut Security Systems (Western) and Monitol Signal Corp.
(Monitol).
The plaintiff's fourteen-count, second amended complaint was filed on
November 8, 2002. [FN1] The complaint alleges the following: On August 22,
2000, the plaintiff and Dictograph and/or Western entered into an alarm
monitoring service agreement whereby Dictograph and/or Western agreed to
monitor signals received from the plaintiff's alarm system located at 549
Howe Avenue, Shelton, Connecticut (premises). In turn, Diotograph and/or
Western entered into an agreement with Monitol whereby Monitol would provide
the monitoring service for the plaintiff's premises and would, upon
receiving a signal from the plaintiff's alarm, direct calls to the proper
authorities. On December 10, 2000, the plaintiff's premises was burglarized
and, despite receiving two separate signals from the plaintiff's alarm
system, the defendants failed to notify the police department, the fire
department, and/or the representatives of the plaintiff.


FN1. The court recognizes that the plaintiff filed the operative complaint
after Clark filed his motion for summary judgment. Nevertheless, because
Clark has chosen not to amend his motion for summary judgment, the court
will apply the motion so far as possible to the plaintiff's second
amended complaint. Practice Book § 10-61.


Based on these allegations, the plaintiff has brought the operative,
fourteen-count, second amended complaint. Counts one through six are brought
against Clark d/b/a Dictograph, counts seven through twelve against Clark
d/b/a Western, and counts thirteen and fourteen against Monitol. The
plaintiff's claims are breach of contract (counts one and seven), negligence
(counts two, eight, and thirteen), gross negligence (counts three, nine, and
fourteen), fraudulent misrepresentation (counts four and ten), negligent
misrepresentation (counts five and eleven), and violations of the
Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a
et seq. (counts six and twelve).
On October 24, 2002, Clark filed a motion for summary judgment on counts one
through six, the claims against him doing business as Dictograph. [FN2]
Clark moves on the ground that: 1) the plaintiff's claims are expressly
barred by the parties' contract; and 2) if Clark is found to be liable, the
contract limits the defendant's liability to $250.00. Clark has filed a
corresponding memorandum in support of its motion and has attached copies of
the parties' contracts.


FN2. The court notes that Clark has not moved for summary judgment on
counts seven through twelve, which are against him doing business as
Western.


On November 27, 2002, the plaintiff filed an objection and a corresponding
memorandum of law in opposition to Clark's motion for summary judgment. The
plaintiff has also attached copies of the parties' contracts.

DISCUSSION
The court begins its analysis with a determination of the applicable law. In
this case, both contracts contain a choice-of-law provision which provides:
"This agreement is to be governed by the laws of New York." With respect to
choice-of-law provisions, Connecticut has adopted the analysis set forth in
1 Restatement (Second), Conflict of Laws § 187, p. 561 (1971). See Elgar v.
Elgar, 238 Conn. 839, 850, 679 A.2d 937 (1996). The Restatement provides in
pertinent part:
The law of the state chosen by the parties to govern their contractual
rights and duties will be applied, even if the particular issue is one which
the parties could not have resolved by an explicit provision in their
agreement directed to that issue, unless either (a) the chosen state has no
substantial relationship to the parties or the transaction and there is no
other reasonable basis for the parties' choice, or (b) application of the
law of the chosen state would be contrary to a fundamental policy of a state
which has a materially greater interest than the chosen state in the
determination of the particular issue and which, under the rule of § 188
would be the state of the applicable law in the absence of an effective
choice of law by the parties.
1 Restatement (Second), Conflict of Laws § 187(2), p. 561 (1971). Because
neither party contests the validity of these provisions, the laws of New
York will govern the contracts at issue in this case.
Although New York contract law will govern the contracts, our Appellate
Court has explained that "in a choice of law situation the forum state will
apply its own procedure." Paine Webber Jackson & Curtis, Inc. v. Winters, 22
Conn.App. 640, 650, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1057
(1990).
Thus, the court now turns to the standard for summary judgment under
Connecticut law.
"The party seeking summary judgment has the burden of showing the absence of
any genuine issue [of] material facts which, under applicable principles of
substantive law, entitle him to a judgment as a matter of law ... and the
party opposing such a motion must provide an evidentiary foundation to
demonstrate the existence of a genuine issue of material fact." (Internal
quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual
Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). "[A]lthough the party
seeking summary judgment has the burden of showing the nonexistence of any
material fact ... a party opposing summary judgment must substantiate its
adverse claim by showing that there is a genuine issue of material fact
together with the evidence disclosing the existence of such an issue ... It
is not enough, however, for the opposing party merely to assert the
existence of such a disputed issue. Mere assertions of fact ... are
insufficient to establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court [in support of a
motion for summary judgment]." (Internal quotation marks omitted.) Id.
Clark asserts that the court should grant summary judgment as to counts one
through six because the parties' contract expressly bars the plaintiff's
actions against Clark. Specifically, Clark contends that the contract did
not guarantee that the monitoring services would prevent burglary.
Furthermore, Clark argues, the contract expressly provides that Clark would
not be liable for the negligence of his employees. Finally, Clark argues in
the alternative, that the parties' contract limits Dictograph's liability to
$250.00.
The plaintiff counters that although New York law provides that limitation
of liability clauses are enforceable in claims based on negligence, they are
not enforceable in tort or breach of contract claims that are the result of
gross negligence.

I
The court will first determine whether to grant summary judgment as to
counts one through three, which claim breach of contract, negligence, and
gross negligence respectively. The court begins its analysis with the
parties' contract. "When interpreting a written contract, the court should
give effect to the intent of the parties as revealed by the language and
structure of the contract ... and should ascertain such intent by examining
the document as a whole ... Effect and meaning must be given to every term
of the contract ... and reasonable effort must be made to harmonize all of
its terms ... Moreover, the contract must be interpreted so as to give
effect to, not nullify, its general or primary purpose ..." (Citations
omitted; internal quotation marks omitted.) Hamburg v. American Ref-fuel
Co., 284 App.Div.2d 85, 89, 727 N.Y . S.2d 843, appeal denied, 97 N.Y.2d
603, 760 N.E.2d 1288, 735 N.Y.S.2d 492 (2001).
In this case, the contract provides: "The parties agree that the Company's
sole obligation under this agreement shall be to monitor signals received
from the protective system located on Customer's premises. The Company upon
receipt of a signal shall make every reasonable effort to transmit
notification of the alarm promptly to the police, fire or other authorities
and to the person or persons whose names and telephone numbers are provided
to the Company by Customer, unless there is reason to assume that an
emergency condition does not exist."
Despite these provisions, Clark's liability is limited. The contract
provides: "The Subscriber agrees that the Company will have no liability for
loss or damage to property or for personal injury or death due to any
failure of service including, but not limited to the failure in transmission
of an alarm to the Company or by the Company to others or for interruptions
of service because of ... the negligent act or negligent failure to act of
the Company, its employees or agents." The contract further provides: "If
the Company should nevertheless be found liable for loss or damage to
persons or property irrespective of the cause, whether because of the
negligent act or negligent failure to act of the Company, its employees or
agents, or on some other basis, the Subscriber agrees that such liability is
limited to $250."
"A limitation on liability provision in a contract represents the parties'
Agreement on the allocation of the risk of economic loss in the event that
the contemplated transaction is not fully executed, which the courts should
honor." Metropolitan Life Insurance Co. v. Noble Lowndes International,
Inc., 84 N.Y.2d 430, 436, 618 N.Y.S.2d 882 (1994). "Although such clauses in
commercial contracts are enforceable to limit recovery for claims on
ordinary negligence, they will not preclude recovery in tort or breach of
contract where the losses are the result of gross negligence." (Citations
omitted.) Gold Connection Discount Jewelers v. American District Telephone
Company, Inc., 212 App.Div.2d 577, 578, 622 N.Y.S.2d 740 (1995). Because the
contract limits Clark's liability for the negligence of its employees and
because New York law allows such limitation on liability, the court grants
Clark's motion for summary judgment as to count two. Nevertheless, the court
denies Clark's motion for summary judgment as to counts one and three as
such clauses will not preclude recovery in tort or breach of contract where
the losses are the result of gross negligence.

II
The court now turns to counts four, five, and six, which claim
misrepresentation, negligent misrepresentation and a violation of CUTPA,
respectively. Before proceeding, however, the court finds it necessary to
determine whether these counts also fall within the scope of the contract's
choice-of-law clause.
In addressing this issue, the court finds guidance in George S. May
International Co. v. Cabinet Crafters, Inc., United States District Court,
Docket No. H-88-28 (D.Conn. August 10, 1988) (14 Conn. L. Trib. No. 45, p.
33-34). In that case, the parties entered into a lease agreement whereby the
plaintiff agreed to provide the defendant with a business-management
computer system. Id. According to the agreement, the lease would be governed
by Illinois law. Id. After the plaintiff had initiated an action against the
defendant for breach of contract, the defendant counterclaimed for, inter
alia, fraud, negligent misrepresentation, and unfair trade practices in
violation of CUTPA. Id. The court concluded that although the choice-of-law
clause would govern the lease agreement, the defendant's counterclaims
would, nevertheless, be governed by Connecticut law as they did not arise
from the lease agreement itself. Id.
In the present case, the contract contained a choice-of-law clause, which
provided that the contract would be governed by New York law. Despite this
clause, however, the court finds the reasoning in George S. May
International Co. v. Cabinet Crafters, Inc. persuasive, and thus, applies
Connecticut law to counts four through six.

A
Having determined that Connecticut law applies, the court now proceeds to
determine whether the defendant's motion for summary judgment should be
granted as to these counts. Count four is a claim for fraudulent
misrepresentation. Specifically, the plaintiff claims that during contract
negotiations, Clark induced him to sign the contract by representing that
the plaintiff's alarm would be monitored by experienced operators.
"The essential elements of a cause of action in [fraudulent
misrepresentation] are: (1) a false representation was made as a statement
of fact; (2) it was untrue and known to be untrue by the party making it;
(3) it was made to induce the other party to act upon it; and (4) the other
party did so act upon the false representation to his injury." (Internal
quotation marks omitted.) Cadle Co. v. Ginsberg, 70 Conn.App. 748, 769, 802
A.2d 137 (2002).
With respect to count four, the court finds that Clark has not presented
sufficient evidence to support his motion for summary judgment. Clark argues
that he is entitled to summary judgment on this claim because the plaintiff
cannot show that Clark knowingly made an untrue statement, which induced the
plaintiff to sign the contract. The only evidence Clark provides, however,
is the contract itself. The contract alone is insufficient because the
plaintiff's claim does not arise out of the contract, but rather out of the
communications between the parties during the contract negotiations.

B
In count five, the plaintiff's claim for negligent misrepresentation, the
plaintiff maintains that Clark, in the course of the contract negotiations,
failed to exercise reasonable care in stating that the plaintiff's alarm
would be monitored by experienced operators.
With respect to negligent misrepresentation, our Supreme Court has adopted §
552 of the Restatement (Second) of Torts (1977) "One who, in the course of
his business, profession or employment ... supplies false information for
the guidance of others in their business transactions, is subject to
liability for pecuniary loss caused to them by their justifiable reliance
upon the information, if he fails to exercise reasonable care or competence
in obtaining or communicating the information." (Internal quotation marks
omitted.) Craine v. Trinity College, 259 Conn. 625, 661, 791 A.2d 518
(2002).
Clark moves for summary judgment on the ground that the plaintiff cannot
show that Clark made untrue statements to him during the course of the
parties' contract negotiations. The only evidence Clark provides, however,
is the parties' contract. The contract is not enough because it does not
shed any light on the information that Clark may have offered the plaintiff
during the contract negotiations.

C
In count six, the plaintiff claims that Clark, in the course of the contract
negotiations, violated CUTPA by stating that the plaintiff's alarms would be
monitored by experienced operators. "[I]n determining whether a practice
violates CUTPA we have adopted the criteria set out in the cigarette rule by
the federal trade commission for determining when a practice is unfair: (1)
[W]hether the practice, without necessarily having been previously
considered unlawful, offends public policy as it has been established by
statutes, the common law, or otherwise--in other words, it is within at
least the penumbra of some common law, statutory, or other established
concept of unfairness; (2) whether it is immoral, unethical, oppressive, or
unscrupulous; (3) whether it causes substantial injury to consumers,
[competitors or other business persons] ... All three criteria do not need
to be satisfied to support a finding of [a violation of CUTPA]." (Internal
quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp.,
261 Conn. 620, 644, 803 A.2d 311 (2002).
Again, this court determines that Clark has not presented sufficient
evidence to support summary judgment. Clark contends that he is entitled to
summary judgment on this claim because the plaintiff cannot show that Clark
violated CUTPA by making untrue statements during the parties' contract
negotiations. Clark does not, however, present the court with any
documentation regarding the parties' negotiations. Instead, he relies solely
on the parties' contract. The contract alone does not shed light on whether
Clark violated CUTPA in the course of the parties' negotiations.

CONCLUSION
For the foregoing reasons, the court grants Clark's motion for summary
judgment as to count two, and thus, overrules the plaintiff's objection to
Clark's motion for summary judgment as to count two. The court denies
Clark's motion for summary judgment as to counts one, three, four, five, and
six, and accordingly, sustains the plaintiff's objection to Clark's motion
for summary judgment as to counts one, three, four, five, and six.
Conn.Super.,2003.
Toth v. Clark
2003 WL 1908252 (Conn.Super.), 34 Conn. L. Rptr. 562
END OF DOCUMENT