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Susan Behan v. Sonitrol Corporation et al.,

                   Susan Behan v. Sonitrol Corporation et al.
                                HHDCV095031971S
          SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF HARTFORD  AT HARTFORD  2014 Conn. Super. LEXIS 664,  March 18, 2014, Filed

NOTICE:
   Decision text below is the first available text from the court; it has not been editorially reviewed by LexisNexis. Publisher\'s editorial review, including Headnotes, Case Summary, Shepard\'s analysis or any amendments will be added in accordance with LexisNexis editorial guidelines.

OPINION
[*1]    Short Name:Behan v. Sonitrol Corp.

    Other Parties:

    Opinion No.: 126231

    Conn.Sup. Cite:

    As-is Docket Number:HHD-CV-09-5031971 S

    Other Docket Numbers:HHDCV116019178S

    As-is Other Docket Numbers: HHD-CV-11-6019178 S

    Caption Date:March 18, 2014

    Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Scholl,  Jane S., J.

   Opinion Title:MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT
Defendant Sonitrol\'s Motion for Summary Judgment (#176 in Docket No. CV 09-5031971, Plaintiff\'s Objection #195; #133 in Docket No. CV11-6019178, Plaintiff\'s Objection #156)

   I. BACKGROUND

   In these consolidated actions the plaintiff, Susan Behan, bring claims
against the defendant, Sonitrol Communications Corp., a.k.a. Sonitrol of
Hartford, among others. The complaints allege various claims stemming from a
fire that destroyed the plaintiff\'s home and the personal property therein. The
plaintiff claims that the defendant Sonitrol Communications Corporation, a.k.a.
Sonitrol of Hartford, provided fire alarm equipment and monitoring service to
the plaintiff\'s home which would detect fire or smoke and alert Sonitrol, which
would dispatch the proper emergency personnel to her home. The plaintiff claims
[*2] that the equipment failed to work properly, and the appropriate authorities
were not contacted, so that the fire spread, causing the complete destruction of
her home. The plaintiff claims that a substantial amount of the damage caused by
the fire could have been prevented if the heat/smoke and fire alarm system
operated as Sonitrol represented it would. The plaintiff makes claims of breach
of contract (Sixth Count), negligent misrepresentation (Seventh Count),
recklessness (Eighth Count), fraudulent misrepresentation (Ninth Count), and
CUTPA (Tenth Count), against Sonitrol.

   Sonitrol has moved for summary judgment on all counts of the plaintiff\'s
complaint in both actions directed to it. The parties submitted memoranda of law
and evidence in support of their positions, and oral argument on the motions was
heard by the court on November 25, 2013.

   II. DISCUSSION

   \"Practice Book §17-49 provides that 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  [*3] view the evidence in the light most
favorable to the nonmoving party . . . The party moving for summary judgment has
the burden of showing the absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter of law. In ruling on a
motion for summary judgment, the court\'s function is not to decide issues of
material fact . . . but rather to determine whether any such issues exist . . .
The courts hold the movant to a strict standard. To satisfy his burden the
movant must make a showing that it is quite clear what the truth is, and that
excludes any real doubt as to the existence of any genuine issue of material
fact . . . Once the moving party has met its burden [of production] . . . the
opposing party must present evidence that demonstrates the existence of some
disputed factual issue . . . [I]t [is] incumbent [on] the party opposing summary
judgment to establish a factual predicate from which it can be determined, as a
matter of law, that a genuine issue of material fact exists . . . The presence .
. . of an alleged adverse claim is not sufficient to defeat a motion for summary
judgment.\" (Citation and internal quotation marks omitted.)  [*4] The Episcopal
Church v. Gauss, 302 Conn. 408, 421-2 (2011).

   It is undisputed that the cause of the fire, the time and duration of the
fire, are all unknown. When the fire department responded, the house was already
consumed by fire. It is also undisputed that there is no fire hydrant near the
plaintiff\'s home and that in order to fight a fire at that location, the fire
department must pump water from a pond a mile away into a tanker truck for
delivery to the residence. It is also undisputed that on the day of the fire,
Sonitrol did not receive any signal from the plaintiff\'s home. Sonitrol had
received a monthly automated signal up to November 19, 2008 but no monthly
signal was received after December 12, 2008 when the plaintiff changed her
telephone service provider to Comcast.

   A. Causation

   In each count of her complaint against Sonitrol the plaintiff alleges that:
\"Damages caused by the fire to the Behan home and the personal property in it
that could have been prevented if the heat/smoke and fire alarm system in the
home had worked . . . was caused by the defendant Sonitrol of Hartford\'s breach
of contract . . .\" (Sixth count paragraph 9); \"was caused by the defendant
Sonitrol of Hartford\'s  [*5] negligent misrepresentation . . .\" (Seventh count
paragraph 9); \"was caused by Sonitrol of Hartford\'s reckless, wanton and/or
willful misconduct . . .\" (Eighth count paragraph 9); \"was caused by the
defendant Sonitrol of Hartford\'s fraudulent misrepresentation . . .\" (Ninth
count paragraph 9); and \"was caused by the defendant Sonitrol of Hartford . . .\"
unfair and deceptive trade practices or acts (Tenth count paragraphs 9, 15).
Sonitrol claims that it is entitled to summary judgment because there is no
genuine issue of material fact that the plaintiff cannot establish causation as
required in order to prevail. Sonitrol claims that the plaintiff cannot provide
any evidence that if an alarm signal had been received by Sonitrol, and
transmitted to the local fire department, her damages would have been in any way
reduced or diminished.

   The Supreme Court in Rawls v. Progressive Northern Insurance Company, 310
Conn. 768, 776-7 (2014), recently reiterated the principles applicable. \"In
order to make out a prima facie case of negligence, the plaintiff must submit
evidence that, if credited, is sufficient to establish duty, breach of duty,
causation, and actual injury . . . A defendant\'s duty  [*6] and breach of duty
is measured by a reasonable care standard, which is the care [that] a reasonably
prudent person would use under the circumstances . . . After the plaintiff
establishes that the defendant did not exercise reasonable care, the plaintiff
has the burden of proving that the defendant\'s negligence caused the plaintiff\'s
injuries. To do so, the plaintiff first must establish causation in fact, that
is, that the injury would not have occurred but for the actor\'s conduct . . .
The plaintiff then must show proximate cause . . . Proximate cause requires that
the defendant\'s conduct [was] a substantial factor in bringing about the
plaintiff\'s injuries and that there was an unbroken sequence of events that tied
[the plaintiff\'s] injuries to the [defendant\'s conduct] . . . Proximate cause
does not require the plaintiff to remove from the realm of possibility all other
potential causes of the accident . . . Instead, the plaintiff must establish
that it is more likely than not that the cause on which the plaintiff relies was
in fact a proximate cause of the accident . . . The more likely than not
standard ensures that the causal connection . . . [is] based [on] more than
conjecture  [*7] and surmise.\" (Citations and internal quotation marks omitted).

   Sonitrol cites Vastola v. Connecticut Protective System, Inc., 133 Conn. 18
(1946). There the defendant had installed a burglar system in the plaintiff\'s
restaurant premises. Burglars were able to enter the premises and burglarize the
property without setting off the alarm. The plaintiff sued the alarm company to
recover the money stolen from the restaurant. The trial court concluded that the
defendant was negligent in the installation of the system and that its
negligence was a substantial factor in causing the loss sustained by the
plaintiff. The Supreme Court reversed. It held that: \"The question is not
whether there could be a causal relationship between the failure of the bell to
ring, caused by the defendant\'s negligence, and the burglary, which directly
caused the loss, but whether the meager facts found in this particular case
reasonably support an inference that the defendant\'s negligence was a proximate
cause of the loss by burglary. The plaintiff was bound to remove the issue of
proximate cause from the realm of speculation by establishing facts affording a
logical basis for the inferences which he claims . .  [*8] . The inferences
which might be drawn from the facts contained in this finding are highly
speculative. 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.
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. We conclude that for the court to
have found proximate cause upon the facts contained in the finding would be to
find it upon no more substantial basis than a surmise or conjecture. This the
law will not permit . . . The defendant\'s undertaking was to install a proper
burglar alarm system which would, under the circumstances of this case, cause a
bell over the entrance door to ring. It did not agree to afford further
protection. In  [*9] Nirdlinger v. American District Telegraph Co., 245 Pa. 453,
91 A. 883, a similar action for damages caused by the defendant\'s negligence,
the defendant undertook to equip the plaintiff\'s house with a burglar alarm and
to protect it from burglarious entry by the dispatch of guards thereto when
warned by automatic signals. One of the issues discussed is whether a ringing of
the alarm would have prevented the loss. The court said (p. 460): \'But this is
pure speculation. Whether that would have been the result had the apparatus been
in working order can never be known. It would depend upon contingencies without
number, any one of which would have been sufficient to disappoint it. Certainly
there is nothing in the case from which a legal inference could be derived that
the loss would have been averted had the electrical alarm been in order.\' \"
(Citations omitted.) Id., pp. 20-22.

   Similarly here, since no one knows how the fire started, when it started,
where it started in the home, and even if the smoke alarm was operational, any
conclusion that the proper operation of the alarm system would have reduced in
any way the plaintiff\'s damages is extremely speculative.

   In opposition to the motion,  [*10] the plaintiff cites the opinion of Peter
Chen. In his affidavit he states that he is a senior engineer. Based on his
investigation he concludes that: 1) the fire area of origin was the first floor
living room at the northeast corner of the structure; 2) even with a singular
smoke alarm placed at a location furthest from the origin of the fire, smoke
would have taken approximately two minutes to sound the Sonitrol smoke alarm
thereby sending a signal to Sonitrol; 3) it would have taken a maximum of
approximately 8 minutes for the fire department to arrive and begin fire
suppression efforts if at least a singular smoke alarm had been connected to the
Sonitrol System and control panel; and 4) based upon the foregoing, the fire
would have been contained to certain areas of the house and certain other areas
of the property would not have been consumed by fire. Yet a review of his
affidavit, as well as portions of his deposition testimony, indicate that there
is no factual basis for his opinions and that they are simply theoretical. Chen
states that the fire area of origin was the first floor living room at the
northeast corner of the structure, and he bases this on his opinion that the
[*11] back of the building was more consumed than the front. His affidavit does
not set forth any other factual basis for any of his conclusions. His analysis
is based on a premise that is itself prefaced in speculation (\"if at least a
singular smoke alarm had been connected to the Sonitrol System and control
Panel,\" Affidavit of Peter Chen, paragraph 7. c. (emphasis added)). His analysis
regarding the spread of the fire used a theoretical fire source as well as a
theoretical structure with theoretical features. Our Code of Evidence allows for
an expert to give his opinions \"provided sufficient facts are shown as the
foundation for the expert\'s opinion.\" Code of Evidence Sec. 7-4(a). Here there
has not been sufficient facts shown for Chen\'s opinion.

   Jeffrey Zwrin, another of the plaintiff\'s experts, claims that Sonitrol\'s
failure to supervise the system and to report an automatic test failure signal
was a significant proximate cause of the damages sustained. He also opines that
\"had Sonitrol complied with its statutory duties and industry standards, and if
Sonitrol properly recommended, designed, installed, programed, serviced, tested,
inspected, maintained, repaired, monitored, and completed  [*12] The System\'s
installation and its Central Station monitoring responsibilities, including
proper monitoring of the automated test signaling; and had Sonitrol not acted
deceptively in furtherance of their own objective, that the fire would have been
detected in its incipient stages and the damages sustained would have been
significantly minimized and contained.\" Affidavit of Jeffrey Zwrin, CPP, CFPS,
CFE, DABFE, CHS-III, SET, RI, paragraph 9.q. Yet his affidavit is devoid of a
factual basis other than the fact the Sonitrol records showed an absence of the
automated monthly test signal being received by Sonitrol for more than thirty
days before the fire.

   \"[T]he genuine issue aspect of summary judgment requires the parties to bring
forward before trial evidentiary facts, or substantial evidence outside the
pleadings, from which the material facts alleged in the pleadings can
warrantably be inferred . . . A material fact has been defined adequately and
simply as a fact which will make a difference in the result of the case.\"
(Citations and internal quotation marks omitted.) Buell Industries, Inc. v.
Greater New York Mutual Ins., 259 Conn. 527, 556 (2002). It is appropriate for
the court  [*13] to consider the opinions of experts in determining a motion for
summary judgment. See, Barrett v. Danbury Hospital, 232 Conn. 242, 253 (1995).
\"Although an affidavit by an expert may be considered in opposition to a motion
for summary judgment, conclusory affidavits, even from expert witnesses, do not
provide a basis on which to deny such motions.\" (Citations and internal
quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual
Ins., 259 Conn. 527, 557 (2002). Even acknowledging that \"[o]n summary judgment
the inferences to be drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion . . . A party may not,
however, rely on mere speculation or conjecture as to the true nature of the
facts to overcome a motion for summary judgment.\" (Citations and internal
quotation marks omitted.) Id., p. 558. \"Further, [i]n order to render an expert
opinion the witness must be qualified to do so and there must be a factual basis
for the opinion . . . An expert\'s uncertainties in the essential facts will make
an opinion based on them without substantial value.\" (Citations and internal
quotation marks omitted.) Porter v. Thrane, 98 Conn.App. 336, 340 (2006).

   The  [*14] plaintiff has not submitted admissible evidence which raises a
question of fact as to the cause of the plaintiff\'s damages.

   B. Sixth Count: Breach of Contract

   \"[T]he elements of a cause of action founded on breach of contract [are] (1)
the formation of an agreement, (2) performance by one party, (3) breach of the
agreement by the opposing party and (4) damages . . . [T]he nonbreaching party
may recover only for damages that are direct[ly] and proximate[ly] caused by a
defendant\'s breach of contract, causation is an element-and a crucial one-of the
plaintiff\'s prima facie case.\" (Citations and internal quotation marks omitted.)
McCann Real Equities v. McDermott, 93 Conn.App. 486, 503-04 (2006).

   The plaintiff claims that Sonitrol provided alarm system monitoring at her
home pursuant to a written contract and that it provided fire alarm maintenance
and repair services without a written contract whenever requested by the
plaintiff. The plaintiff alleges that the damages caused by the fire could have
been prevented if the heat/smoke and fire alarm system in the home had worked as
Sonitrol represented they would and was caused by Sonitrol\'s breach of contract
in failing to design, install and/or  [*15] modify the alarm system to comply
with state and national codes, and comply with the manufacturer\'s
specifications; in failing to provide the plaintiff with an instruction manual;
or with directions for testing the alarm system to ensure that it was operating
as Sonitrol represented; etc. (Amended Complaint, Sixth Count, paragraph 9).

   Since causation is also an element of proof on her breach of contract claim,
and, as noted above, she cannot prove causation, summary judgment is granted as
to the Sixth Count.

   C. Seventh and Ninth Counts: Negligent and Fraudulent Misrepresentation

   \"This court has long recognized liability for negligent misrepresentation. We
have held that even an innocent misrepresentation of fact may be actionable if
the declarant has the means of knowing, ought to know, or has the duty of
knowing the truth . . . The governing principles are set forth in similar terms
in 552 of the Restatement Second of Torts (1979): 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,  [*16] if he fails to exercise reasonable care or competence in
obtaining or communicating the information.\" (Citations and internal quotation
marks omitted.) D\'Ulisse-Cupo v. Board of Directors of N.D.H.S., 202 Conn. 206,
217-18 (1987).

   The elements of a fraudulent misrepresentation are \"that a false
representation was made as to a statement of fact, that it was untrue and known
by the defendants to be untrue, that it was made to induce the plaintiffs to buy
the realty, and that they acted upon the false representation to their detriment
. . . Connecticut law has firmly established that fraud must be proven by a
standard more exacting than that of a fair preponderance of the evidence . . .
The standard of proof for some cases such as those involving the acquisition of
title by adverse possession, the termination of parental rights, libel, fraud,
or reformation of a deed or contract is that of clear and convincing proof, a
standard greater than proof by a fair preponderance of the evidence but less
than proof beyond a reasonable doubt.\" (Citations and internal quotation marks
omitted.) Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 295-96 (1984).

   As to the claims of negligent and fraudulent misrepresentation  [*17] as to
Sonitrol, Sonitrol claims that there was no representations of any kind made to
the homeowners on or after December 28, 2008 up to and including February 19,
2009. The plaintiff admitted that no representations were made to her personally
by Sonitrol or its representatives. In addition, even if any representations
were made to the plaintiff, the contract with Sonitrol clearly provides that:
\"That dealer does not make any representation or warranty, including any implied
warranty of merchantability or fitness that the system or service supplied may
not be compromised, circumvented, or the system or services will in all cases
provide signaling, monitoring and response for which it was intended.\"
Attachment 1, paragraph 5, to Exhibit A to Memorandum of Law in Support of
Motion for Summary Judgment, #177. The contract further provides that; \"This
agreement and the terms and conditions on the reverse side, constitute the
entire agreement between the parties, and SCC is not bound by any representative
or inducements not set forth in nay such documents.\" Id.

   The plaintiff claims that the language of the contract itself provides the
basis for denying summary judgment on the representation  [*18] claims since
there are issues of fact regarding the representations made by Sonitrol. She
notes that the contract provides for installation and service of an \"alarm
system\" and that it allows Sonitrol to \"make any necessary inspections, tests,
and repairs as required\" to the system. Id., paragraph 7. The plaintiff\'s
expert, Jeffrey Zwrin, opines that the system was \"incompletely installed\" and
that Sonitrol \"never made any necessary inspection, tests, and repairs, as
required, even though they knew, or should have known, that the fire alarm
system, at the Behan\'s home, was impaired and unable to communicate any fire
alarm signal emergency to the Sonitrol Central Station.\" Affidavit of Jeffrey
Zwrin, paragraph 9.m., August 9, 2012.

   Viewing the evidence in the light most favorable to the plaintiff, issues of
fact exist as to the claims of negligent and fraudulent misrepresentation
against Sonitrol. However, the plaintiff must prove that such misrepresentations
were the cause of her loss and, as found above, she cannot do so. Therefore,
summary judgment is granted as to the Seventh and Ninth Counts.

   D. Eighth Count: Reckless, Wanton and Wilful Misconduct

   \"Recklessness requires a conscious  [*19] choice of a course of action either
with knowledge of the serious danger to others involved in it or with knowledge
of facts which would disclose this danger to any reasonable man, and the actor
must recognize that his conduct involves a risk substantially greater . . . than
that which is necessary to make his conduct negligent . . . More recently, we
have described recklessness as a state of consciousness with reference to the
consequences of one\'s acts . . . It is more than negligence, more than gross
negligence . . . The state of mind amounting to recklessness may be inferred
from conduct. But, in order to infer it, there must be something more than a
failure to exercise a reasonable degree of watchfulness to avoid danger to
others or to take reasonable precautions to avoid injury to them . . . Wanton
misconduct is reckless misconduct . . . It is such conduct as indicates a
reckless disregard of the just rights or safety of others or of the consequences
of the action . . . While we have attempted to draw definitional distinctions
between the terms wilful, wanton or reckless, in practice the three terms have
been treated as meaning the same thing. The result is that willful, wanton,
[*20] or reckless conduct tends to take on the aspect of highly unreasonable
conduct, involving an extreme departure from ordinary care, in a situation where
a high degree of danger is apparent.\" (Citations and internal quotation marks
omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832-3 (2003). \"Recklessness is a
state of consciousness with reference to the consequences of one\'s acts . . . It
is more than negligence, more than gross negligence . . . The state of mind
amounting to recklessness may be inferred from conduct. But, in order to infer
it, there must be something more than a failure to exercise a reasonable degree
of watchfulness to avoid danger to others or to take reasonable precautions to
avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is
such conduct as indicates a reckless disregard of the just rights or safety of
others or of the consequences of the action . . . It is at least clear . . .
that such aggravated negligence must be more than any mere mistake resulting
from inexperience, excitement, or confusion, and more than mere thoughtlessness
or inadvertence, or simply inattention.\" (Citation and internal quotation marks
omitted.) Fricilli v. Westport, 264 Conn. 266, 277-78 (2003).

   Causation  [*21] is also a necessary part of any proof of an action grounded
in recklessness. \"A legal, or proximate, causal connection between the conduct
and the resulting injury is a necessary element of causes of action in gross
negligence or in recklessness. See, e.g., Shinville v. Hanscom, 116 Conn. 672,
674, 166 A. 398 (1933) (\'to furnish a basis of recovery, reckless misconduct
must have been a substantial factor in bringing about the injuries complained
of\'). A prerequisite to a determination of proximate causation is a finding of
causation in fact.\" Boehm v. Kish, 201 Conn. 385, 390 (1986).

   In the absence of the ability to prove causation, the plaintiff cannot
prevail on her claims of recklessness as well.

   In addition, Sonitrol claims that there are no facts or evidence to support
the plaintiff\'s claims of recklessness against it. However, reviewing the
evidence set forth by the parties, the court finds that issues of material facts
exist whether the conduct of Sonitrol was reckless. Sonitrol claims that there
was no activity which required a conscious response of any kind by its employees
until after the fire. In support of its motion, Sonitrol submitted the affidavit
of Joel Zimmerman, vice  [*22] president of operations for Sonitrol, who states
that prior to the time of the fire Sonitrol had no knowledge that the
plaintiff\'s alarm system was not operable, that it was not connected to the
telephone lines, or that the plaintiff had switched telephone service providers.
Also, the contract with Sonitrol did not provide for monthly testing by Sonitrol
and, in fact, the contract provides that the client \"agrees to perform system
checks as instructed by dealer in order to ascertain the system is properly
functioning.\" Attachment 1, paragraph 10, to Exhibit A to Memorandum of Law in
Support of Motion for Summary Judgment, #177. The plaintiff claims that Sonitrol
was aware, through information captured by its computer, that no signal was
being received from the plaintiff\'s home and ignored it. In addition, the
plaintiff\'s expert, Jeffrey Zwrin, opines that the system installed by Sonitrol
was provided in gross deviation and in violation of the National Fire Alarm Code
and industry standards and practice. He also opines that Sonitrol\'s failure to
notify and warn the plaintiff after the failed monthly monitoring test signal
occurred was in gross deviation of the code. Therefore there  [*23] exists
issues of material fact as to the plaintiff\'s recklessness claims against
Sonitrol. However, in the absence of evidence to support the claim that such
recklessness caused the plaintiff\'s losses, the motion for summary judgment is
granted as to the Eighth Count.

   E. Tenth Count: CUTPA

   \"To prevail on a CUTPA claim, the plaintiffs must prove that (1) the
defendant engaged in unfair or deceptive acts or practices in the conduct of any
trade or commerce; General Statutes §42-110b(a); and (2) . . . [he or she] has
suffered an ascertainable loss of money or property as a result of the
defendant\'s acts or practices. General Statutes §42-110g(a) . . . The
ascertainable loss requirement is a threshold barrier which limits the class of
persons who may bring a CUTPA action seeking either actual damages or equitable
relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must
first prove that he has suffered an ascertainable loss due to a CUTPA
violation.\" (Citation internal quotation marks, and footnote omitted.) Artie\'s
Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18 (2008). Thus
causation is also an element of proof of a CUTPA claim.

   Sonitrol claims that  [*24] this is a simple breach of contract claim which
cannot support a claim under CUTPA. \"This court and the Appellate Court
repeatedly have held, however, that a breach of contract may form the basis for
a CUTPA claim . . . our focus . . . has been on whether the defendant\'s breach
of contract was merely negligent or incompetent, in which case the CUTPA claim
was barred, or whether the defendant\'s actions would support a finding of
intentional, reckless, unethical or unscrupulous conduct, in which case the
contractual breach will support a CUTPA claim under the second prong of the
cigarette rule . . . As we have indicated, this court repeatedly has recognized
that CUTPA was intended to provide a remedy that is separate and distinct from
the remedies provided by contract law when the defendant\'s contractual breach
was accompanied by aggravating circumstances . . . Accordingly, we conclude that
the economic loss doctrine does not bar claims arising from a breach of
contract, including a breach of a contract for the sale of goods covered by the
UCC, when the plaintiff has alleged that the breach was accompanied by
intentional, reckless, unethical or unscrupulous conduct.\" (Citations and
footnotes  [*25] omitted.) Ulbrich v. Groth, 310 Conn. 375, 410-12 (2013). The
court agrees with the plaintiff that the evidence presented indicates that there
are issues of fact as to whether there are sufficient aggravating factors to
support a CUTPA claim in this case.

   Sonitrol also claims that the plaintiff\'s CUTPA claims are barred by the
three-year statute of limitations set forth in General Statutes §42-110g(f)
because the allegations in the plaintiff\'s complaint make reference to
representations made prior to August 30, 2001. The plaintiff claims that there
are issues of fact as to whether Sonitrol had a continuing duty to the plaintiff
up to the date of the fire. However, \"our Supreme Court has stated that the
continuing course of conduct doctrine does not toll the three year statute of
limitations set forth in §42-110g(f). See Fichera v. Mine Hill Corp., 207 Conn.
204, 216-17, 541 2d 472 (1988).\" Flannery v. Singer Asset Finance Company, 128
Conn.App. 507, 514, petition for cert. granted, 302 Conn. 902 (2011). But here
the plaintiff alleges a CUTPA claim based not only on the initial
representations made by Sonitrol to induce the plaintiff to enter into the
contract and the installation of  [*26] the system by Sonitrol but also on its
servicing and monitoring of the alarms system prior to and through the date of
the fire. Therefore issues of fact exist as to whether the statute of
limitations bars the plaintiff\'s CUTPA action.

   However, in the absence of proof of an ascertainable loss caused by the CUTPA
violations, the plaintiff cannot prevail on this claim. Therefore the motion for
summary judgment is granted as to the Tenth Count.

   F. Limitation of Liability Clause

   Sonitrol claims that the contract pursuant to which the plaintiff makes her
claims limits any potential liability to \"one-half year\'s monitoring payments,\"
or $158.70. The plaintiff argues that the issue of the validity of this
liquidated damage provision is not appropriate for summary judgment. The court
agrees. As Judge Corradino noted in Vloski v. American Protective Services,
Superior Court, Judicial District of New Haven at New Haven, Docket No. CV93
0353966S (Nov. 14, 1996), \"[a]ssuming the defendant is correct in its position
that the liquidated damage clause is applicable to the claims made here, it is
difficult to understand how that would entitle it to summary judgment. That is,
if the damages are properly  [*27] so limited that does not mean in the
appropriate cause the plaintiff would not be entitled to a recovery up to the
$250 maximum. If that\'s the case, how can the court grant summary judgment? It\'s
not an argument going to the issue of liability as such, just the amount of
liability is involved.\"

   G. Exculpatory Provisions

   Sonitrol claims that certain provisions of the contract bar this action
because all of the plaintiff\'s claims are predicated on the contract. The
contract provides: \"Dealer hereby warrants to client that in the event any part
of the equipment installed shall become defective or inoperative under normal
use within one (1) year from the date of the original invoice for this
installation, and which dealer\'s examination shall disclose to be defective or
inoperative, dealer shall replace or repair such defective part without charge
to client. In no event shall dealer be liable for more than, and client\'s
exclusive remedy for breach of this limited warranty shall be limited to, the
repair or replacement of defective equipment installed under this agreement, and
dealer shall not be liable for injuries to persons or property, including, but
not limited to, all general, direct,  [*28] special, exemplary, punitive,
incidental or consequential damage.\" Attachment 1, paragraph 10, to Exhibit A to
Memorandum of Law in Support of Motion for Summary Judgment, #177. The contract
also provides that: \"This warranty does not cover any damage to material or
equipment caused by accident, vandalism, flood, water, lightning, fire,
intrusion, abuse, misuse, an act of God, any casualty, including electricity,
attempted unauthorized repair service, modification or improper installation by
anyone other than dealer and any other cause beyond the control of dealer,
including interruption of electrical or telephone service.\" Id., paragraph 4. In
addition, the contract states: \"Client acknowledges that any affirmation of fact
or promise made by Dealer shall not be deemed an express warranty: The dealer
does not make any representation or warranty, including any implied warranty of
merchantability or fitness that the system or service supplied may not be
compromised, circumvented, or the system or service will in all cases provide
the signaling, monitoring and response for which it was intended: That the
client is not relying on dealer\'s skill or judgment in selecting or furnishing a
[*29] system suitable for any particular purpose. There are no express
warranties beyond those on the face of this agreement.\" Id., paragraph 5.

   The plaintiff claims that these provisions are inapplicable because this is
not a breach of warranty case. The court agrees. The counts against Sonitrol
sound in breach of contract, negligent misrepresentation, recklessness,
fraudulent misrepresentation, and CUTPA. \"[T]he law\'s reluctance to enforce
exculpatory provisions of this nature has resulted in the development of an
exacting standard by which courts measure their validity. So, it has been
repeatedly emphasized that unless the intention of the parties is expressed in
unmistakable language, an exculpatory clause will not be deemed to insulate a
party from liability for his own negligent acts . . . Put another way, it must
appear plainly and precisely that the limitation of liability extends to
negligence or other fault of the party attempting to shed his ordinary
responsibility . . .\" (Citation and internal quotation marks omitted.) Hanks v.
Powder Ridge, 276 Conn. 314, 322 (2005). The language of the contract does not
extend to the claims of the plaintiff here, which do not sound in breach  [*30]
of warranty.

   Therefore the existence of the exculpatory language is not a basis to grant
summary judgment in Sonitrol\'s favor and the court need not reach the issue of
its enforceability.

   H. Contractual Time Limitation

   Sonitrol claims that the plaintiff\'s claims are barred by the contractual
time limitation. The contract provides that: \"All claims, actions or
proceedings, legal or equitable, against dealer must be commenced in court
within one (1) year after the cause of action has occurred or the act, omission
or event occurred from which the claim, action or proceeding arises, whichever
is earlier, without judicial extension of time, or said claim, action or
proceeding is barred, time being of the essence of this paragraph.\" Attachment
1, paragraph 13, to Exhibit A to Memorandum of Law in Support of Motion for
Summary Judgment, #177. Sonitrol therefore claims that any act or omission
occurring prior to December 29, 2008 is barred since they were served with the
complaint in this matter or December 29, 2009. The court agrees with Judge
Eveleigh\'s conclusion in New London County Mutual Insurance v. Nissan North
America, Inc., Superior Court Judicial District of Waterbury at Waterbury,
[*31] Docket No. UWY-CV-02-4003594-S (April 23, 2007), cited by the plaintiff,
that \"[t]he court finds the phrase [without judicial extension] sufficiently
ambiguous to deny a summary judgment motion.\"

   III. CONCLUSION

   The motion for summary judgment is granted as to all counts against Sonitrol on the grounds that the plaintiff cannot prove causation but not on the other grounds cited by Sonitrol.

   Jane S. Scholl, J.