author: PETERS, J.

text:
    COMMISSIONER OF LABOR v. C.J.M. SERVICES, INC., ET AL.
    (AC 22090)
    Lavery, C. X, and Bishop and Peters, Js.

      Argued May 2 —
    officially released October 15, 2002

      Glenn A. Woods, assistant attorney general, with whom were Edward F. Reynolds, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Judith A. Brown, assistant attorney general, for the appellant (commissioner).

      Steven B. Kaplan, for the appellees (named defendant et a!.).
   Opinion

PETERS, J.

This is a case about unpaid employees of a subcontractor working on a public works project. It presents the question of whether the commissioner of labor, who has the authority to collect unpaid wages on behalf of employees pursuant to General Statutes § 31-72 (wage collection statute), is permitted to sue the general contractor and its surety to enforce payment on a labor and materials bond pursuant to General Statutes §§ 49-41 (public works statute) and 49-42 (bond enforcement statute). The trial court answered this question in the negative. We disagree and, accordingly, reverse the judgment of the trial court in part.

This appeal arises out of an action commenced by the plaintiff, the commissioner of labor (commissioner), on December 18, 1998, to collect unpaid prevailing and overtime wages that were owed to eighty employees of Big Bell Development Corporation (subcontractor). They had performed work on a public works project for removal of asbestos from certain Hartford public schools. The commissioner sought recovery from the general contractor, C.J.M. Services, Inc. (general contractor), and from the Insurance Company of the State of Pennsylvania (ICSP) on the payment bond for the project.

In his amended complaint, the commissioner alleged, inter alia: (1) ICSP was liable, as surety on the payment bond, for tbe payment of labor performed on the project (count one); (2) the general contractor was liable, as a matter of statutory law, as an “employer,” as defined in General Statutes § 31-71a (l), for payment of wages under General Statutes §§ 31-53 (prevailing wage statute) and 31-76c* *** (overtime wage statute) (count two); and (3) the general contractor, as a matter of contract law, was liable for payment of wages pursuant to its contract for the project (count three). In each count, the commissioner relied on his authority to bring an action pursuant to the wage collection statute.

On July 23, 1999, the trial court granted the defendants’ motion to strike each count of the amended complaint. The court did so on two grounds. First, the court concluded that the commissioner had no authority to bring suit, on behalf of a subcontractor’s employees, against the general contractor or its bonding company. Second, the court concluded that the general contractor was not an “employer” as statutorily defined and, therefore, was not liable as alleged by the commissioner. Because the general contractor was not liable, its surety, ICSP, also was not hable.

On September 7, 1999, without waiving his appellate rights to challenge the court’s striking of the counts in the earlier complaint, the commissioner filed a second amended complaint. In that complaint, count one (amended count one) was brought against only the general contractor and alleged that, as was previously alleged against ICSP, the general contractor was hable pursuant to the payment bond. It also alleged that the general contractor was an “employer” as statutorily defined. On January 31, 2000, the court granted the general contractor’s motion to strike amended count one.

On appeal to this court, the commissioner claims that each of the stricken counts was legally sufficient to survive the defendants’ motions to strike. Specifically, he argues that: (1) he has authority under the wage collection statute to collect unpaid wages on behalf of the subcontractor’s employees; (2) ICSP, as a surety on the labor and materials bond, is hable for payment of wages to the subcontractor’s employees; (3) the general contractor is hable for payment of wages to the subcontractor’s employees; (4) there were disputed factual issues about the general contractor’s alleged liability as a de facto direct employer of the subcontractor’s employees; and (5) the amended prayer for relief, which included a request for injunctive relief, made all the stricken counts legally sufficient to withstand a motion to strike.

The standard applicable to our review of a trial court’s granting of a motion to strike is well established. “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002); Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 537-38, 778 A.2d 93 (2001); Donar v. King Associates, Inc., 67 Conn. App. 346, 349, 786 A.2d 1256 (2001).

Due to the multiplicity of counts and allegations in this case, we will start with a road map to the discussion to follow. Each of the stricken counts alleges a different theory of liability and a different basis for the commissioner’s authority to bring suit. The legal sufficiency of each count must therefore be addressed separately. With respect to count one, we will address jointly the liability of the surety and the general contractor both as originally pleaded and as amended. Thereafter, we will address the merits of counts two and three. Finally, we will address the merits of the commissioner’s claim for equitable relief as stated in the amended complaint.

I

COUNT ONE AND AMENDED COUNT ONE

Count one and amended count one alleged, respectively, that ICSP and the general contractor were liable to the subcontractor’s employees pursuant to the payment bond secured for the public works project. The commissioner claims that the allegations contained in these counts were legally sufficient to withstand a motion to strike. We agree.

A

Commissioner as Claimant under Count One

Because it is a jurisdictional issue, we first address whether the commissioner has the authority to enforce payment on the bond. The trial court concluded that he did not. Resolution of the issue requires statutory construction and our review is therefore plenary. Boynton v. New Haven, 63 Conn. App. 815, 819, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001).

The commissioner’s claim is entirely statutory. His right to sue depends upon three remedial statutes that intersect under the circumstances of this case. These are the wage collection statute, § 31-72, the public works statute, § 49-41, and the bond enforcement statute, § 49-42. Each of them was designed to help unpaid employees to be made whole. As remedial statutes, each of them must be construed broadly in favor of employees whom the legislature intended to benefit. See Mytych v. May Dept. Stores Co., 260 Conn. 152, 160-61, 793 A.2d 1068 (2002); Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 463, 704 A.2d 222 (1997); Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696, 651 A.2d 1286 (1995).

The principles of statutory construction by which this court is guided are well settled. “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Coregis Ins. Co. v. Fleet National Bank, 68 Conn. App. 716, 720, 793 A.2d 254 (2002).

The legislative history of these statutes confirms their remedial purpose. With respect to the wage collection statute, our legislature has stated clearly that its purpose is to protect employees. See 32 S. Proc., Pt. 6,1989 Sess., p. 1925, remarks of Senator James H. Maloney (stating that amendment to § 31-72 was “a bill in support of our working men and women in the State of Connecticut”). Since its inception, the legislature has amended this statute to increase the power of the commissioner to initiate the collection of unpaid wages. In 1989, our General Assembly eliminated the requirement that each employee assign his or her claim to unpaid wages to the commissioner. See 32 H.R. Proc., Pt. 15, 1989 Sess., pp. 5200-5204, remarks of Representative Joseph A. Adamo; 32 S. Proc., supra, pp. 1924-25. That amendment, in effect, empowered the commissioner to proceed with the collection of unpaid wages absent assignment from employees. See 32 S. Proc., supra, p. 1925.

The public works statute and the bond enforcement statute were modeled after remedial federal legislation known as the Miller Act. See 40 U.S.C. §§ 270a through 270d. Our courts have often relied on federal interpretations of the Miller Act for guidance as to the scope of our own legislation. Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 716, 687 A.2d 506 (1997); American Masons’ Supply Co. v. F.W. Brown Co., 174 Conn. 219, 223-24, 384 A.2d 378 (1978). Federal courts construe the statutory requirements of the Miller Act broadly. The United States Supreme Court has stated that the federal Miller Act is “highly remedial in nature . . . [and] entitled to a liberal construction and application in order properly to effectuate the [legislative] intent to protect those whose labor and materials go into public projects.” Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S. Ct. 890, 88 L. Ed. 1163 (1944).

Bearing in mind the dictates of the principle of broad construction, we turn to an examination of our own statutes for the protection of employees. The wage collection statute, § 31-72, authorizes the commissioner of labor to bring a civil action to recover twice the amount of wages due and empowers him to take “any legal action necessary” to recover unpaid wages on behalf of employees. The public works statute, § 49-41, requires general contractors on public works projects to obtain a bond to ensure payment to all employees working on the projects. The bond enforcement statute, § 49-42, authorizes employees on a public works project to bring suit on a payment bond to collect unpaid wages. Our Supreme Court has observed that the bond related statutes were enacted for the protection of employees and material suppliers who cannot avail themselves of otherwise available remedies, such as liens. Blakeslee Arpaia Chapman, Inc. v. EI Construc tors, Inc., supra, 239 Conn. 714; Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 757, 674 A.2d 1313 (1996); KMK Insulation, Inc. v. A. Prete & Son Construction Co., 49 Conn. App. 522, 527, 715 A.2d 799 (1998).

It is undisputed that the subcontractor’s employees themselves would have been entitled to enforce payment on the bond against both the general contractor, as principal, and ICSP, as surety on the bond. See, e.g., American Masons’ Supply Co. v. F.W. Brown Co., supra, 174 Conn. 226-27 (holding that persons supplying labor or materials to a subcontractor on a public works project may seek reimbursement under a statutory payment bond provided by the general contractor). The question before us is whether the commissioner has statutory authority to bring such an action on their behalf. This is an issue of first impression.

Textually, the wage collection statute provides that “[w]hen any employer fails to pay an employee wages . . . [t]he Labor Commissioner may collect the full amount of any such unpaid wages ... as well as interest. ... In addition, the Labor Commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages . . . .” (Emphasis added.) General Statutes § 31-72. All of the parties maintain that the literal language of the statute supports their respective positions.

The commissioner construes the language allowing the commissioner to pursue “any legal action necessary” as a broad grant of authority that necessarily includes the enforcement of a payment bond pursuant to the bond enforcement statute. The defendants argue, however, that the commissioner’s authority under the wage collection statute is limited to initiating civil actions against the direct employer of the unpaid employees. We agree with the commissioner.

The defendants emphasize that the wage collection statute commences with the language, “[w]hen any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i . . .” and further states that “the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. ...” General Statutes § 31-72. At best, the opening phrase is ambiguous. “Any” may denote breadth rather than limitation. The reference to “an employee” may well reflect a deliberate choice not to use “its employee.”

We are persuaded that a broader construction of the statutory language is appropriate. Ambiguities in a remedial statute must be resolved in favor of the persons whom the statute is intended to protect. The statute as a whole is more coherent if the dispute about the meaning of the disputed language is resolved in favor of the commissioner. See State v. Anonymous, 237 Conn. 501, 514-15, 680 A.2d 956 (1996). In light of this interpretation, the further statutory reference to the liability of “the employer” for costs and attorney’s fees, in our view, does not limit the scope of “any employer.” Furthermore, even if we were to interpret the opening phrase to refer to situations in which an employer has failed to pay its direct employee, we are not persuaded that that phrase restricts the latter part of the section that grants authority to the commissioner to bring “any legal action necessary.”

The defendants’ argument for a narrower construction of the wage collection statute is unavailing because it is unsupported by applicable legal authorities. It is true that other cases in which the commissioner has initiated legal action pursuant to the wage collection statute have involved civil actions brought against employers for unpaid wages for which the employers were directly liable. See, e.g., Butler v. Hartford Technical Institute, Inc., supra, 243 Conn. 454; Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 690; Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 758 A.2d 869 (2000), appeal dismissed, 258 Conn. 453, 782 A.2d 97 (2001). These cases, however, concerned employees on private worksites. We see no reason to draw a negative inference from their holdings. They do not govern the enforcement of a payment bond on a public works project pursuant to a remedial statute.

We therefore construe the wage collection statute to empower the commissioner to initiate any necessary legal action. In our view, this construction is consistent with the purpose that our legislature intended to implement.

Even if the defendants’ construction of the text of the wage collection statute is not persuasive, they question the propriety of any reliance on the public works and bond enforcement statutes, §§ 49-41 and 49-42. They claim that our Supreme Court, in Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10, 688 A.2d 306 (1997), held that these statutes do not apply to the employees of a subcontractor. We disagree with this interpretation of Dysart.

In Dysart, our Supreme Court disallowed a claim by an endorsee of the wage checks of the employees of a subcontractor. The court did so, however, not on general principles, but on the ground that the claimant failed to prove an assignment of the employees’ rights to payment. The court expressly declined to consider whether assignees, as a class, were disqualified from enforcing payment on a bond. Id., 16.

Dysart recognized “the need of every general contractor to protect itself against excessively remote and, from its perspective, undetermined claims.” Id., 19. In this case, unlike the third party claimant in Dysart, the commissioner initiated the present action on behalf of the subcontractor’s employees, rather than on his own behalf. A case brought on behalf of persons who fall within the scope of statutory protection is not a case in which a claim for relief is “excessively remote” or “undetermined.” Dysart does not govern this case.

Finally, we consider the combined guidance that all three statutes provide for determining the commissioner’s authority to proceed with his cause of action. “Because the legislature is always presumed to have created a harmonious and consistent body of law, the proper construction of any statute must take into account the mandates of related statutes governing the same general subject matter.” (Internal quotation marks omitted.) Common Fund v. Fairfield, 228 Conn. 375, 381, 636 A.2d 795 (1994); Felia v. Westport, 214 Conn. 181, 187, 571 A.2d 89 (1990).

We are persuaded that the statutory scheme created by our legislature was intended to ensure that employees on public works projects are paid the wages to which they are entitled. To limit the commissioner to a direct claim against the subcontractor would be inconsistent with the requirement that a payment bond be posted for the protection of these employees. Indeed, it is only realistic to recognize that individual unpaid employees may not have the wherewithal, or the legal assistance, to bring effective recovery actions on their own behalf.

In conclusion, we find persuasive the commissioner’s argument that the plain language of the wage collection statute permitting the commissioner to bring “any legal action necessary,” and the legislative intent that remedial statutes relating to public works projects be construed broadly, sustain his authority to proceed. The commissioner was a proper claimant to enforce payment on the bond on behalf of the subcontractor’s employees.

The trial court’s ruling on the defendants’ motion to strike was not limited to a determination of the commissioner’s authority to bring a cause of action. The court also determined that the commissioner had alleged no substantive basis for imposing liability on any of the named defendants. We now turn, therefore, to the questions of liability.

B

Liability of ICSP under Count One

Count one alleges that ICSP, as surety, was hable pursuant to the payment bond that it had issued with respect to the asbestos removal project. The commissioner argues that ICSP is hable to the subcontractor’s employees for payment of wages pursuant to the pubhc works statute and the bond enforcement statute. We agree.

In its memorandum of decision, the trial court characterized count one as asserting a claim only under “[the prevailing wage statute] and the provisions of the contract.” The court reasoned that because the general contractor was not the “employer” of the subcontractor’s employees, the general contractor could not be held hable as alleged. The commissioner did not appeal from the court’s ruling in favor of the general contractor, but rather amended count one as to that defendant in his second amended complaint. We address those allegations as modified in part I C of this opinion.

The court failed to acknowledge that count one also alleged liability of ICSP pursuant to the payment bond. Paragraph five of count one expressly states that “[t]he Defendant ICSP is liable for the payment of labor performed on the above-mentioned project pursuant to the Bond . . . .” Paragraph six then states that written notice was sent to the defendants pursuant to the bond enforcement statute. We therefore consider the legal sufficiency of the commissioner’s claim against ICSP under the payment bond.

The language of the public works statute and the bond enforcement statute establishes the liability of a surety on a bond. First, the public works statute requires that all such projects be bonded in the amount of the contract and that the surety or sureties on the bond must be approved by the officer awarding the contract. Second, the bond enforcement statute sets out a procedure that requires a claimant to serve notice of claim on both the principal and the surety that issued the bond. General Statutes § 49-42. Once notice has been properly served, if the surety refuses to pay, then the claimant may bring an action on the payment bond in the Superior Court. Id.

Our Supreme Court repeatedly has recognized the liability of a surety pursuant to a payment bond under the public works statute and the bond enforcement statute. See Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 239 Conn. 714—17; American MasonsSupply Co. v. F. W. Brown Co., supra, 174 Conn. 220-21. In Blakeslee Arpaia Chapman, Inc., the court specifically stated that coverage of a payment bond by a surety could not fall below the statutory requirements. Furthermore, the court stated that “if there is any ambiguity, it must be interpreted most strongly against [the surety].” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 717.

Count one alleged that ICSP was the surety on the payment bond for the public works project. The bond, a copy of which was attached to the complaint, specifically stated that it was “executed pursuant to the provisions of: [public works statute]. . . [bond enforcement statute] . . . and the rights and liabilities hereunder shall be determined and limited by said sections . . . .” Count one further alleged that ICSP was liable “pursuant to the Bond,” that employees of a subcontractor had not been paid, that written notice of claim had been sent to ICSP pursuant to the bond enforcement statute, and that “both the principal and the surety [had] refused and/or neglected to tender payment.”

We conclude that the claim against ICSP, as surety on the payment bond, was legally sufficient. The commissioner had a right to seek payment for the employees of the subcontractor from ICSP. The court’s ruling to the contrary was improper.

C

Liability of General Contractor under Count One

Amended count one alleged that the general contractor was hable pursuant to the payment bond. The commissioner claims that this claim, too, was legally sufficient. We agree.

Amended count one alleged that the general contractor was the principal on the payment bond for the public works project for asbestos removal. It then alleged that the general contractor was liable for the payment of labor performed on that project pursuant to the bond. As previously noted, the bond, a copy of which was attached to the complaint, was executed pursuant to the public works statute and the bond enforcement statute. Amended count one further stated that wages were due to employees of the subcontractor, that the commissioner, on behalf of the subcontractor’s employees, served the general contractor with notice of the claim pursuant to the bond enforcement statute and that the general contractor had refused or neglected to tender payment on its bond to the subcontractor’s employees or to the commissioner.

As with the liability of ICSP, the general contractor’s liability as principal on the bond is established by the language of the public works statute and the bond enforcement statute. The public works statute expressly states that the bond “shall have as principal the name of the person awarded the contract.” General Statutes § 49-41 (a). The procedure for enforcement set out in the bond enforcement statute includes the principal on the bond, as well as the surety. A claimant must first serve notice of the claim on both the surety that issued the bond and the general contractor named as principal on the bond. General Statutes § 49-42 (a). If the surety refuses to pay, then the claimant may bring an action on the payment bond in the Superior Court. Id.

Our Supreme Court has recognized a general contractor’s liability as principal on a payment bond to those supplying labor or materials to a subcontractor. In American Masons’ Supply Co. v. F.W. Brown Co., supra, 174 Conn. 226-27, the court held that a plaintiff, who had supplied materials used by a subcontractor on a public works project, had a right of action under the bond enforcement statute against the general contractor as principal on the bond. The court reasoned that, as long as the entity to whom the plaintiff had supplied materials was a subcontractor, the plaintiffs relationship to the project was not too remote to bring a claim against the prime contractor and its surety. Id.

In the present case, it is undisputed that the entity for whom the employees supplied labor was a subcontractor. With respect to their relationship to the general contractors, we see no substantive distinction between the material suppliers in American Masons’ Supply Co. and the subcontractor’s employees here. The subcontractor’s employees were not too remote for the general contractor to be hable for payment of their wages pursuant to the bond enforcement statute.

The defendants argue, nonetheless, that the general contractor cannot be held hable for the unpaid wages of a subcontractor’s employees because the general contractor was not their direct employer. They note that the commissioner’s complaint does not allege that the general contractor was the “employer” of the subcontractor’s employees.

The defendants rely on Butler v. Hartford Technical Institute, Inc., supra, 243 Conn. 463, and Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 696, for the proposition that the term “employer,” even in the context of a remedial statute, is hmited to a person “who possesses the ultimate authority and control . . . to set the hours of employment and pay wages . . . .” Butler v. Hartford Technical Institute, Inc., supra, 462.

Butler is distinguishable for several reasons. First, the Supreme Court’s opinion was designed to avoid an unduly narrow interpretation of § 31-72. Id., 462-63. Its decision imposed liability for unpaid wages not only on a corporate employer but also on a high ranking corporate employee. Second, the court’s discussion of personal liability arose in a context other than liability under a payment bond. The court’s decision is, therefore, not relevant under the circumstances of this case.

We are persuaded that a claimant seeking recovery from a general contractor on a payment bond need not show a direct employer-employee relationship between the employee and the general contractor. None of the cases in which our Supreme Court held that a general contractor, or its surety, was liable pursuant to a payment bond required a showing of an employee-employer relationship. See Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., supra, 239 Conn. 708; American Masons’ Supply Co. v. F.W. Brown Co., supra, 174 Conn. 226-27.

We conclude that a general contractor can be held liable, as principal on a payment bond for a public works contract, to a subcontractor’s employees. We are, therefore, persuaded that the commissioner’s allegations against the general contractor in amended count one were legally sufficient to survive a motion to strike.

II

COUNT TWO

Count two of the commissioner’s complaint alleged that the general contractor, as an employer in Connecticut and as general contractor on the asbestos removal project, was liable to the subcontractor’s employees for payment of wages pursuant to the prevailing wage statute, § 31-53. The prevailing wage statute requires all employees on a public works project to be paid prevailing wages, as determined by the commissioner of labor, and sets out penalties for any person who knowingly violates that requirement. The commissioner argues that the court improperly struck this count on the theory that the statutory requirement that employees be paid prevailing wages imposes liability on the general contractor for payment of those wages. The defendants claim, however, that the only remedies under the prevailing wage statute are those expressly set out in the statute. We agree with the defendants.

Although the prevailing wage statute specifically authorizes an action by the commissioner, the statute provides only limited remedies. It does not authorize the recovery of unpaid wages. Rather, it sets out the following specific sanctions: a monetary fine; a period of disqualification from further bidding on public contracts; the termination of a contract before the completion of the project and the withholding of payment to the contractor or subcontractor. On its face, the statute does not give the commissioner the relief that he seeks.

The commissioner argues, nonetheless, that § 31-53a (b) provides a remedy because it states that employees “shall have the right of action and of intervention against the contractor and his sureties” for unpaid wages. This argument is unavailing for two reasons. First, the commissioner made no reference to § 31-53a in count two of his complaint and therefore cannot now rely on that section to support the legal sufficiency of his pleading. See Ferreira v. Pringle, 255 Conn. 330, 337-38, 766 A.2d 400 (2001). Second, even if we were to consider the prevailing wage statute, § 31-53, to encompass § 31-53a, the commissioner could not prevail. An action under § 31-53a (b) is triggered by the termination of a contract pursuant to subsection (b) of the prevailing wage statute and provides recovery for employee underpayments associated with the termination. That is not the case here.

As previously noted, the trial court did not strike count ten of the complaint, which alleged that the general contractor was independently liable under the prevailing wage statute. In that count, the commissioner alleged that the general contractor was an “employer” as statutorily defined and requested the enforcement of previously assessed civil penalties pursuant to the prevailing wage statute. Unlike count two, count ten sought to enforce the sanctions specifically set out in the statute.

Even remedial statutes are not limitless. We agree with the trial court that the allegations contained in count two were not legally sufficient to survive a motion to strike.

Ill

COUNT THREE

Count three of the commissioner’s complaint alleged that the general contractor had contractual liability for the payment of wages to employees of the subcontractor. The commissioner argues that the trial court improperly failed to accept as true the commissioner’s allegation that the general contractor had a contractual obligation. The commissioner maintains that that allegation was legally sufficient to withstand a motion to strike. We disagree.

The trial court stated in its memorandum that “[n]othing has been pointed to in the general contract specifically creating such liability on the general contractor.” In count three, the commissioner alleged only that “[the general contractor] was required to pay prevailing wages to all mechanics, laborers, and workmen on said project pursuant to the contract for said public works projects . . . .” The court accurately noted that the commissioner provided no support for this assertion. The commissioner failed to elaborate, in any way, on the parties, the terms or the specific provisions of that contract.

Although a trial court, in ruling on a motion to strike, must take as true all facts alleged; Vacco v. Microsoft Corp., supra, 260 Conn. 65; the commissioner must still plead sufficient facts that, if proven, would support his legal claim. Donar v. King Associates, Inc., supra, 67 Conn. App. 349-50. A bald assertion that the defendant has a contractual obligation, without more, is insufficient to survive a motion to strike.

IV

AMENDED PRAYER FOR RELIEF

The commissioner further claims, on remedial grounds, that the trial court improperly held that each of the stricken counts was legally insufficient. He reminds us that, in his second amended complaint, he sought equitable relief that included a prayer for affirmative injunction to enforce the state wage laws pursuant to General Statutes § 31-2 (d) (enforcement statute). We disagree.

It is dispositive that the amended prayer for relief is relevant only to amended count one. At the time when amended count one was filed, all the other counts had been stricken. These counts were expressly not repleaded in the commissioner’s second amended complaint. We have already concluded that amended count one, which alleged the general contractor’s liability pursuant to the bond, was legally sufficient to survive a motion to strike. We, therefore, need not address this claim for additional relief.

V

CONCLUSION

In sum, we conclude that the commissioner is authorized by the wage collection statute to collect unpaid wages on behalf of a subcontractor’s employees and, in the case of a public works project, may do so by enforcing payment on the bond against a general contractor and its surety. We are, therefore, persuaded that the commissioner’s allegations in count one and amended count one relevant to enforcement of the payment bond were legally sufficient to survive a motion to strike.

The judgment on the defendants’ motion to strike counts two and three of the commissioner’s amended complaint is affirmed. The judgment as to count one of the commissioner’s amended complaint and count one of the commissioner’s second amended complaint is reversed and the case is remanded with direction to deny the defendants’ motions to strike those counts.

In this opinion the other judges concurred.

       The total amount of unpaid wages was $160,974.12.

       The plaintiff filed the original complaint on June 15, 1998, but subsequently withdrew several counts in that complaint. The original complaint is not at issue in this appeal.

       General Statutes § 31-71a provides in relevant part: “Whenever used in sections 31-71a to 31-71i, inclusive: (1) ‘Employer’ includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompetent, or the receiver, trustee, successor or assignee of any of the same, employing any person, including the state and any political subdivision thereof . . . .”

       General Statutes § 31-53 provides in relevant part: “(a) Each contract for . . . any public works project by the state ... or by any political subdivision of the state . . . shall contain the following provision: ‘The wages paid on an hourly basis to any mechanic, laborer or workman employed upon the work herein contracted to be done and the amount of payment or contribution paid or payable on behalf of each such employee to any employee welfare fund . . . shall be at a rate equal to the rate customary or prevailing for the same work in the same trade or occupation in the town in which such public works project is being constructed. Any contractor who is not obligated by agreement to make payment or contribution on behalf of such employees to any such employee welfare fund shall pay to each employee as part of his wages the amount of payment or contribution for his classification on each pay day.’
      “(b) Any person who knowingly or wilfully employs any mechanic, laborer or workman in . . . any public works project . . . [and] who fails to pay the amount of payment or contributions paid or payable on behalf of each such employee to any employee welfare fund, or in lieu thereof to the employee . . . shall be fined not less than two thousand five hundred dollars but not more than five thousand dollars for each offense and (1) for the first violation, shall be disqualified from bidding on contracts with the state or any political subdivision until the contractor or subcontractor has made full restitution of back wages . . . and for an additional six months thereafter and (2) for subsequent violations, shall be disqualified from bidding on contracts with the state or any political subdivision until the contractor or subcontractor has made full restitution of the back wages . . . and for not less than an additional two years thereafter. In addition, if it is found by the contracting officer representing the state or political subdivision thereof that any mechanic, laborer or workman employed by the contractor or any subcontractor directly on the site for the work covered by the contract has been or is being paid a rate of wages less than the rate of wages required . . . the state or contracting political subdivision thereof may (A) . . . terminate such contractor’s right to proceed with the work . . . and the contractor and his sureties shall be liable to the state or the contracting political subdivision for any excess costs ... or (B) withhold payment of money to the contractor or subcontractor. The contracting department . . . shall . . . notify the Labor Commissioner ... of the name of the contractor or subcontractor, the project involved, the location of the work, the violations involved, the date the contract was terminated, and steps taken to collect the required wages.
      ‘■(c) The Labor Commissioner may make complaint to the proper prosecuting authorities for the violation of any provision of subsection (b). . . .
      “(e) The Labor Commissioner shall determine the prevailing rate of wages . . . in each locality where any such public work is being constructed Upon award of any contract subject to the provisions of this section, the contractor to whom the contract is awarded shall certify, under oath, to the Labor Commissioner the pay scale to be used by such contractor and any of his subcontractors for work to be performed under such contract.”

       General Statutes § 31-76c provides: “No employer, except as otherwise provided herein, shall employ any of his employees for a workweek longer than forty hours, unless such employee receives remuneration for his employment in excess of the hours above specified at a rate not less than one and one-half limes the regular rate at which he is employed.”

       Our reference to the defendants in this opinion includes the general contractor and ICSP. Although the subcontractor was also a defendant named in the plaintiffs complaints, the motions to strike that are at issue in this appeal were filed only by the general contractor and ICSP. The subcontractor is not a party to this appeal.

       In their motion, the defendants also moved to strike count ten, which alleged that the general contractor was an “employer,” as statutorily defined, and remained liable for previously assessed civil penalties for violations of the prevailing and overtime wage statutes. Because the court denied the defendants’ motion to strike that count, it is not a part of this appeal.

       On May 23, 2000, on the plaintiffs motion, the court rendered partial judgment in favor of both defendants on the counts that the court had stricken. Two years later, after judgment for default had entered against the subcontractor on other counts, the court issued a memorandum of decision allowing the partial judgment of May 23, 2000 to enter.
      With regard to the subcontractor, the court rendered judgment against it as to counts four and five of the second amended complaint. Those counts alleged that the subcontractor was an employer, as statutorily defined, and was liable for the wages due to the employees who worked on the public works project, double damages, a reasonable attorney’s fee, costs and interest.

       The plaintiff argues that the general contractor was liable under three theories of liability: (1) pursuant to the payment bond, (2) pursuant to the prevailing wage statute and (3) pursuant to its contract for the project.

       In its memorandum of decision related to the plaintiffs amended complaint, the trial court characterized count one as asserting a claim “against [the general contractor] and ICSP under [the prevailing wage statute] and the provisions of the contract.” We do not read the allegations so narrowly. Count one also alleges liability pursuant to the payment bond.
      Count one provides in relevant part:
      “1. The Plaintiff ... is the Commissioner of Labor acting pursuant to statutory authority under [the wage collection statute], wherein he is authorized to collect any and all unpaid wages.
      “2. The Defendant, [general contractor], is the principal on a Labor and Materials Bond for a public works contract project ....
      “3. The Defendant, [ICSP], is the surety on the Labor and Materials Bond for said public works project ....
      “4. Said Defendants are jointly and severally liable for the payment of labor on the aforementioned project at the prevailing rate of pay owed pursuant to [the prevailing wage statute] and pursuant to said contract.
      “5. The Defendant ICSP is liable for the payment of labor performed on the above-mentioned project pursuant to the Bond described in Paragraph 3 hereinabove.
      “6. On December 31, 1997, Plaintiff sent written notice of claim on the Bond by Certified Mail to ICSP and [the general contractor] pursuant to [the bond enforcement statute] for the payment of prevailing wages and overtime on said wages due in the following amounts to the following employees of [the general contractor’s] subcontractor . . . .”
      Amended count one subsequently added the following allegations:
      “2. The Defendant, [general contractor], at all times relevant to this Complaint was an employer in Connecticut [as statutorily defined] ....
      “3. The Defendant, [general contractor], was the principal on a Labor and Materials Bond for a public works contract project ....
      “4. The Defendant, [general contractor], is liable for the payment of labor performed on the above-mentioned project pursuant to the Bond described in Paragraph 3 hereinabove . . .

       General Statutes § 31-72 provides: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive, or fails to compensate an employee in accordance with section 31-76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action.
      “The Labor Commissioner may collect the full amount of any such unpaid wages, payments due to an employee welfare fund or such arbitration award, as well as interest calculated in accordance with the provisions of section 31-265 from the date the wages or payment should have been received, had payment been made in a timely manner. In addition, the Labor Commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages, payments due to an employee welfare fund or arbitration award, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. The commissioner shall distribute any wages, arbitration awards or payments due to an employee welfare fund collected pursuant to this section to the appropriate person.”

       General Statutes § 49-41 provides: “(a) Each contract exceeding fifty thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof shall include a provision that the person to perform the contract shall furnish to the state or the subdivision on or before the award date, a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding tire contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided no such bond shall be required to be furnished (1) in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than fifty thousand dollars, (2) in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars, or (3) in relation to any general bid or sub-bid submitted by a consultant, as defined in section 4b-55. Any such bond furnished shall have as principal the name of the person awarded the contract.
      “(b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars. ”

       General Statutes § 49-42 provides in relevant part: “(a) Any person who performed work or supplied materials for which a requisition was submitted to, or for which an estimate was prepared by, the awarding authority and who does not receive full payment for such work or materials within sixty days of the applicable payment date provided for in subsection (a) of section 49-41a, or any person who supplied materials or performed subcontracting work not included on a requisition or estimate who has not received full payment for such materials or work within sixty days after the date such materials were supplied or such work was performed, may enforce his right to payment under the bond by serving a notice of claim on the surety that issued the bond and a copy of such notice to the contractor named as principal in the bond within one hundred eighty days of the applicable payment date provided for in subsection (a) of section 49-41a, or, in the case of a person supplying materials or performing subcontracting work not included on a requisition or estimate, within one hundred eighty days after the date such materials were supplied or such work was performed. The notice of claim shall state with substantial accuracy the amount claimed and the name of the party for whom the work was performed or to whom the materials were supplied, and shall provide a detailed description of the bonded project for which the work or materials were provided. If the content of a notice prepared in accordance with subsection (b) of section 49-41a complies with the requirements of this section, a copy of such notice, served within one hundred eighty days of the payment date provided for in subsection (a) of section 49-41a upon the surety that issued the bond and upon the contractor named as principal in the bond, shall satisfy the notice requirements of this section. Within ninety days after service of the notice of claim, the surety shall make payment under the bond and satisfy the claim, or any portion of the claim which is not subject to a good faith dispute, and shall serve a notice on the claimant denying liability for any unpaid portion of the claim. The notices required under this section shall be served by registered or certified mail, postage prepaid in envelopes addressed to any office at which the surety, principal or claimant conducts his business, or in any manner in which civil process may be served. If the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the Superior Court for such sums and prosecute the action to final execution and judgment. An action to recover on a payment bond under this section shall be privileged with respect to assignment for trial. The court shall not consolidate for trial any action brought under this section with any other action brought on the same bond unless the court finds that a substantial portion of the evidence to be adduced, other than the fact that the claims sought to be consolidated arise under the same general contract, is common to such actions and that consolidation will not result in excessive delays to any claimant whose action was instituted at a time significantly prior to the motion to consolidate. In any such proceeding, the court judgment shall award the prevailing party the costs for bringing such proceeding and allow interest at the rate of interest specified in the labor or materials contract under which the claim arises or, if no such interest rate is specified, at the rate of interest as provided in section 37-3a upon the amount recovered, computed from the date of service of the notice of claim, provided, for any portion of the claim which the court finds was due and payable after the date of service of the notice of claim, such interest shall be computed from the date such portion became due and payable. The court judgment may award reasonable attorneys fees to either party if upon reviewing the entire record, it appears that either the original claim, the surety’s denial of liability, or the defense interposed to the claim is without substantial basis in fact or law. Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing the payment bond shall have a right of action upon the payment bond upon giving written notice of claim as provided in this section.
      “(b) Every suit instituted under this section shall be brought in the name of the person suing, in the superior court for the judicial district where the contract was to be performed, irrespective of the amount in controversy in the suit, but no such suit may be commenced after the expiration of one year after the applicable payment date provided for in subsection (a) of section 49-41a, or, in the case of a person supplying materials or performing subcontracting work not included on a requisition or estimate, no such suit may be commenced after the expiration of one year after the date such materials were supplied or such work was performed. . . .”

       The defendants conceded this point at oral argument before this court.
      The scope of the federal Miller Act, upon which our legislation is based, provides further support for this interpretation. In J. W. Bateson Co. v. United States, 434 U.S. 586, 98 S. Ct. 873, 55 L. Ed. 2d 50 (1978), the United States Supreme Court refused to extend Miller Act protection to a sub-subcontractor’s employees on the basis that they lacked a contractual relationship with the general contractor or subcontractor. It is, therefore, implied that employees of subcontractors are protected by the Miller Act. 4 S. Stein, Construction Law (2001) § 17.02 [3] [c], p. 17-20.

       The court in Dysart did note, however, that the United States Supreme Court has held that the scope of protection under the federal Miller Act, upon which our own statutes are based, includes “an assignee of the claims of persons furnishing labor or materials on a bonded project. . . even if the assignee itself did not furnish labor or materials.” Dysart Corp. v. Seaboard Surety Co., supra, 240 Conn. 16.

       This is consistent with the liability of a surety on a payment bond under the federal Miller Act. “Once it is established that a claim covered by a payment bond is in fact due and owing . . . and the prime contractor has not paid the claim (or the subcontractor on a second tier claim), the surety must pay the claim.” 3 S. Stein, Construction Law (2001) § 17.02 [10] [b], p. 17-43.

       The trial court stated on its order granting the defendants’ motion to strike that “[s]imply amending the first count to allege that [the general contractor] was an employer, does not, in view of the definition and reasoning in the court’s memorandum of decision dated July 23, 1999, make this count sufficient . . . .” The court’s statement fails to acknowledge that amended count one also alleged the general contractor’s liability pursuant to the bond.

        Tianti is irrelevant because it concerned the distinction between an employee and an independent contractor. See Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 694.

       In light of this conclusion, we need not address the plaintiffs claim that it was deprived of the opportunity to prove that the general contractor was a de facto direct employer of the subcontractor’s employees.

       See footnote 4.

       The commissioner also invokes the overtime wage statute, § 31-76c. We do not consider, however, the legal sufficiency of the allegations in count two that relate to overtime wages. In its brief, the commissioner’s argument in support of the legal sufficiency of count two focuses solely on the prevailing wage statute, § 31-53, and the commissioner’s authority to enforce the payment of such prevailing wages. Neither the prevailing wage statute, nor its enforcement statute, § 31-53a, includes overtime wages. Electrical Contractors, Inc. v. Tianti, 223 Conn. 573, 583-84, 613 A.2d 281 (1992). The plaintiffs brief provides no support for the legal sufficiency of its allegations pursuant to the overtime wage statute and we, therefore, deem that claim abandoned. See Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995) (“[wjhere an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived”).
      In his brief, the commissioner’s only reference to enforcement of the overtime wage statute is in the context of the amended prayer for relief. We address that claim in part IV.

       General Statutes § 31-53a (b) provides in relevant part,: “If the accrued payments withheld under the terms of a contract terminated pursuant to subsection (b) of section 31-53 are insufficient to reimburse all the mechanics, laborers and workmen with respect to whom there has been a failure to pay the wages required pursuant to said section 31-53, such mechanics, laborers and workmen shall have a right of action and of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials . . . .”

       See footnote 7.

       General Statutes § 31-2 provides in relevant part: “Powers and duties of commissioner. . . . (d) The commissioner may request the Attorney General to bring an action in Superior Court for injunctive relief requiring compliance with any statute, regulation, order or permit administered, adopted or issued by the commissioner.”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    B AND D ASSOCIATES, INC. v. RICHARD J. RUSSELL
    (AC 22112)
    Foti, Mihalakos and Bishop, Js.

      Argued June 6 —
    officially released October 15, 2002

      Stuart G. Blackburn, for the appellant (plaintiff).

      Joseph A. LaBella, for the appellee (defendant).
   Opinion

BISHOP, J.

B and D Associates, Inc., the plaintiff in this negligence action, appeals from the summary judgment rendered by the trial court in favor of the defendant, Richard J. Russell. On appeal, the plaintiff claims that genuine issues of material fact exist and, therefore, that the court acted improperly in granting the defendant’s motion for summary judgment. In response, the defendant, inter alia, advances an alternate ground for affirming the judgment; he contends that an intervening force, namely, a criminal act of a third party, superseded to relieve him of liability for his negligence. We affirm in part and reverse in part.

The following facts are undisputed. The defendant, a landlord, was the owner of a building at 7 Capital Drive, Wallingford. As of February, 1997, that building was divided into two business locations, one of which was leased by the plaintiff and the other by a business named Quality Auto Care. On February 1, 1997, a fire occurred in the area of the building leased by Quality Auto Care. Although that fire caused considerable damage to the building, it did not cause significant damage to the area of the building leased by the plaintiff. Between February 1 and February 10,1997, employees of Quality Auto Care removed salvageable items from the building, and the defendant undertook some measures to secure the damaged area of the building.

On February 19, 1997, a second fire occurred. That fire, which is known to have resulted from arson, began in the area of the building leased by Quality Auto Care and eventually consumed the entire building, causing substantial damage to personal property that was owned by the plaintiff. The plaintiff’s insurer, Hartford Fire Insurance Company, indemnified the plaintiff for losses totaling $1,699,012.42, including $350,000 for lost business income. The Hartford Fire Insurance Company, asserting the rights of its insured, later commenced a subrogation action against the defendant. In that action, which sounds in negligence and is the subject of the present appeal, the defendant is alleged to have proximately caused the plaintiff’s losses by failing in its duty (1) to secure the building, especially after the first fire, (2) to repair the building adequately following the first fire and (3) to install “fire stopping” and “draft stopping” devices as required by law. The plaintiff alleged that as a result of the defendant’s omissions, it “suffered damage to its equipment and the loss of its business in an amount in excess of $1,600,000.”

In response, the defendant filed a motion for summary judgment in which it argued that the lease contains a risk of loss provision, releasing the defendant from all liability to the plaintiff, including liability flowing from the defendant’s own negligence. Section 24 of the lease consists of the risk of loss provision and states: “Risk of Loss. It is expressly understood and agreed between the parties hereto that all goods, wares, merchandise, equipment, furnishings, tools, machinery and every other property of any other nature whatsoever, stored, used, maintained or kept on the herein leased premises, will be stored, used, maintained and kept on the herein leased premises by said TENANT, TENANT’S agents, servants, customers or by any other person or persons whatsoever solely at the risk of TENANT and/ or any of the aforementioned persons or classes of persons; and there shall be no liability on the part of the LANDLORD to said TENANT and/or to any of said persons or classes of persons, or to anyone else for any damage or loss to any of the foregoing from any cause or for any reason whatsoever.” (Emphasis added.)

On the basis of § 24 of the lease, the court rendered summary judgment in favor of the defendant. In so doing, it concluded that § 24 was clear and unambiguous, and that the use of the word “any” extinguished the possibility that a genuine issue of material fact existed as to whether the plaintiff had assumed the risk of loss. The court further concluded that in § 24, the plaintiff released the defendant from liability flowing from the defendant’s negligence. This appeal followed. Additional facts and procedural history will be set forth as necessary.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 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 view the evidence in the light most favorable to the nonmoving party. . . . 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.” (Citations omitted; internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999). Mindful of that standard of review, we consider the plaintiffs claims and the alternate ground for affirmance advanced by the defendant.

I

The plaintiff advances several arguments in support of its claim that the court acted improperly in rendering summary judgment. It argues that: (1) § 24 does not release the defendant from liability for his negligence or, alternatively, that § 24 does not release the defendant from liability for negligently failing to secure the building; (2) the court acted improperly in concluding that there was no genuine issue of material fact as to the intent of the parties at the time they entered into the lease, particularly § 24; (3) § 24 does not release the defendant from liability for negligently causing the plaintiff to lose business income; and (4) the first fire altered the scope of § 24.

The following additional legal principles are relevant to our consideration of the plaintiffs arguments. “In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998). “A determination of contractual intent ordinarily presents a question of fact for the ultimate fact finder, although where the language is clear and unambiguous, it becomes a question of law for the court.” Id., 276.

“In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. ... A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . Furthermore, a presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature. . . .

“In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . [A]ny ambiguity in a contract must emanate from the language used by the parties. ... If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670-71, 791 A.2d 546 (2002).

A

In the present case, the parties disagree over whether § 24 of the lease ever releases the defendant from liability to the plaintiff for the defendant’s negligence. We now address that issue.

“The law does not favor contract provisions which reheve a person from his own negligence. . . . Such provisions, however, have been upheld under proper circumstances.” (Citations omitted.) Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 413, 446 A.2d 799 (1982); see also Gross v. Sweet, 49 N.Y.2d 102, 106, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979) (“the law frowns upon contracts intended to exculpate a party from the consequences of his own negligence”). “[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 ....

“Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon. ... Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent ....

“By and large, if such is the intention of the parties, the fairest course is to provide explicitly that claims based on negligence are included .... That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear . . . .” (Citations omitted; internal quotation marks omitted.) Gross v. Sweet, supra, 49 N.Y.2d 107-108.

When applied to contracts to which the parties are sophisticated business entities, “the law, reflecting the economic realities, will recognize an agreement to relieve one party from the consequences of his negligence on the strength of a broadly worded clause framed in less precise language than would normally be required, though even then it must evince the unmistakable intent of the parties . . . .” (Citation omitted; internal quotation marks omitted.) Id., 108.

In the present case, § 24 is clear and unambiguous and, consequently, there is no need to look beyond the text of that section to discern each party’s intent at the time the lease was executed. The language in § 24 that “there shall be no liability on the part of LANDLORD to said TENANT . . . for any damage or loss to any of the foregoing from any cause or for any reason whatsoever” unmistakably evidences an intent to release the defendant from liability to the plaintiff, no matter how incurred, for the types of losses listed in § 24. Accordingly, we conclude that § 24 released the defendant from liability to the plaintiff for negligently causing those types of losses. Thus, the court’s decision on that issue is correct. For the reasons that follow, we conclude, however, that the court acted improperly in concluding that § 24 released the defendant from liability to the plaintiff for every loss alleged in the plaintiffs complaint.

As stated previously, the court found that § 24 had released the defendant from liability for negligently causing the plaintiff to lose business profits. That section, which previously is set forth, provides, among other things, that the defendant is responsible for losses of “goods, wares, merchandise, equipment, furnishings, tools, machinery and every other property of any other nature whatsoever, stored, used, maintained or kept on the herein leased premises . . . .” The plaintiff, on appeal, contends that lost business profits are not included in § 24 and, therefore, that the court acted improperly in granting summary judgment on that issue. In response, the defendant argues that § 24 includes intangibles such as lost profits. We agree with the plaintiff.

Although we acknowledge that in § 24, the phrase “every other property of any other nature whatsoever,” when considered in isolation, could include damage in the form of lost business profits, § 24 continues on and qualifies that phrase by requiring that such property be “stored, used, maintained or kept on the herein leased premises . . . .” Economic loss, including lost business profits, is intangible, speculative in nature and certainly cannot be stored, used, maintained or kept on any premises. Because of the restrictive language employed in § 24, we conclude that it does not encompass intangible losses such as lost business profits.

B

Finally, the plaintiff argues that as a result of the fire on February 1, 1997, additional contractual obligations were imposed on the defendant, i.e., obligations beyond those contained in the lease. Specifically, the plaintiff contends that the defendant had an obligation to better secure the areas of the property under his control to maintain them in a reasonably safe and secure condition. We disagree.

“[A] lease is a contract” between the landlord and his tenant. (Internal quotation marks omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn. App. 517, 522, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001). “[I]n interpreting a contract courts cannot add new or different terms . . . .” (Citation omitted; internal quotation marks omitted.) Bank of Boston v. Scott Real Estate, Inc., 40 Conn. App. 616, 622, 673 A.2d 558, cert. denied, 237 Conn. 912, 675 A.2d 884 (1996). Also, “[w]hen only one interpretation of a contract is possible, the court need not look outside the four comers of the contract.” (Internal quotation marks omitted.) Rund v. Melillo, 63 Conn. App. 216, 220, 772 A.2d 774 (2001).

There is no evidence that the defendant and the plaintiff renegotiated the lease after the February 1, 1997, fire. Moreover, none of the terms of the lease indicates that certain conditions, if satisfied, would place additional obligations on the defendant. The lease embodies the agreement between the parties, and it is not within the discretion of this court to alter a contract entered into in an arms length transaction. Therefore, we conclude that the fire imposed no new, additional obligations on the defendant.

II

The defendant claims an alternate ground for affirming the summary judgment in its entirety. He contends that an intervening force, namely, a criminal act of a third party, superseded to relieve him of liability for his negligence. Specifically, the defendant claims that the person who set the second fire committed an intervening criminal act sufficient to relieve the defendant of liability. An examination of the law behind intervening and superceding causes is required for that analysis.

“The terms intervening cause and superseding cause have been used interchangeably. . . . The Restatement of Torts makes clear that the doctrine is properly referred to as superseding cause, and that it embodies within it the concept of an intervening force.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 178, 700 A.2d 38 (1997), citing 2 Restatement (Second), Torts §§ 440 through 453 (1965). “A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., supra, 179.

“Regarding intervening cause, [our Supreme Court has] adopted the standard set forth in § 442B of [2 Restatement (Second), supra], that [w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.” (Internal quotation marks omitted.) Ludington v. Sayers, 64 Conn. App. 768, 774, 778 A.2d 262 (2001). “[T]o be within the scope of the risk, the harm actually suffered must be of the same general type as that which makes the defendant’s conduct negligent in the first instance. . . . Moreover, [i]f the . . . [defendant’s] conduct is a substantial factor in bringing about harm to another, the fact that the . . . [defendant] neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent [him] from being liable.” (Internal quotation marks omitted.) Id., 774-75.

As applied to the present case, the defendant is released from liability providing: (1) the criminal act of arson is not within the scope of risk created by the defendant’s negligence; (2) the damage to the plaintiff is not of the same general type as that which makes the defendant’s conduct negligent; and (3) the defendant neither foresaw nor could have foreseen the extent of the harm.

The plaintiff alleges, and an affidavit of his expert witness suggests, that if the defendant had installed appropriate fire walls, the damage to the plaintiffs property would have been reduced substantially. The plaintiff also alleges that the defendant was under a duty to install such preventive devices and that failure to do so constituted negligence. Further, the defendant had firsthand knowledge of the damage that a fire could do to the building by virtue of witnessing the aftermath of the first fire. Moreover, the plaintiff alleges that the defendant did not make any substantial effort to secure the building after the first fire, despite the plaintiffs complaints that suspicious people had been seen hanging around the building. If those allegations prove to be accurate and the defendant was negligent, it may be found that the arson was within the scope of risk created by such negligence. Also, the damage to the plaintiffs property may be found to be of the same type as that which made his conduct negligent; in other words, failure to provide adequate security and appropriate fire prevention devices led to damage caused by fire.

“An issue of proximate cause is ordinarily a question of fact for the trier.” (Internal quotation marks omitted.) Id., 773. “It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion . . . .” (Internal quotation marks omitted.) Id., 773-74.

In the present case, we conclude that the evidence, when viewed in the light most favorable to the plaintiff, does not establish as a matter of law that the intervening criminal act of a third party (the arsonist) released the defendant from liability to the plaintiff.

The judgment is reversed only as it relates to the plaintiffs allegation that the defendant negligently caused the plaintiff to lose business profits and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We note that (1) the plaintiff was a business entity and the defendant was a business person at the time the lease was executed, and (2) there is no evidence that the defendant had significantly more bargaining power than the plaintiff. Additionally, the evidence establishes that the plaintiff, not the defendant, paid to insure itself from losses caused by fire, further evidencing the parties’ intent to relieve the defendant from liability.


author: WEST, J.

text:
    SANDRA JEAN HERSEY v. LONRHO, INC.
    (AC 22297)
    Lavery, C. J, and West and Peters, Js.
    Argued June 6 —
    officially released October 15, 2002

      James V. Sabatini, for the appellant (plaintiff).

      Timothy S. Jajliardo, with whom, on the brief, was Peter J. Ponziani, for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, Sandra Jean Hersey, appeals from the judgment of the trial court dismissing her complaint for lack of personal jurisdiction over the defendant, Lonrho, Inc. On appeal, the plaintiff claims that the court improperly failed (1) to conclude that it had jurisdiction over the defendant on the basis of the actions of its subsidiaries and (2) to pierce the corporate veil.

The following facts are relevant to our resolution of the plaintiffs appeal. In April, 1997, the plaintiff, through a certified travel agent, booked a trip for the Bahamas Princess Resort and Casino (resort) on Grand Bahama Island in the Bahamas. While registered as a guest at the hotel, the plaintiff was walking from the pool area to her hotel room when she fell into a hole containing hot or steaming water. As a result of that fall, which she attributes to the defective and dangerous condition of the grounds surrounding the pool area, the plaintiff claims to have suffered physical injury, including second degree bums, and mental anguish and economic losses, including incurred medical expenses, lost time from work and impaired future earnings. On April 15, 1998, the plaintiff filed an action against the defendant, alleging that those injuries and economic losses were proximately caused by the defendant’s negligence.

The court found that the resort is owned by two Bahamian corporations, Sunrise Properties, Ltd. (Sunrise), and Princess Casinos, Ltd. The resort was marketed and promoted in Connecticut by Princess Vacations, Inc., Sunrise, Princess Casino, Ltd., and Princess Vacations, Inc., are corporations separate from the defendant, which is a holding company incorporated in Delaware. At the relevant time, the defendant was the parent corporation of Princess Hotels, International, which was in turn the parent corporation of Princess Vacations, Inc.

On July 14, 1998, the defendant filed a motion to dismiss the complaint pursuant to Practice Book § 10-30 on the ground that the court lacked personal jurisdiction over the defendant as required by General Statutes § 33-929. The court denied without prejudice that motion to dismiss, stating that the information provided by the parties in their respective affidavits and exhibits was insufficient to determine whether the requirements of § 33-929 and of due process had been met. To answer the necessary questions of fact, the court concluded that an evidentiary hearing was required. At the conclusion of that hearing, the court granted the defendant’s renewed motion to dismiss.

We first address whether, as a matter of law, the court improperly failed to find that it had personal jurisdiction over the defendant on the basis of the in-state activities of its subsidiary corporation.

“Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [WJhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [granting] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

Practice Book § 10-30 requires a defendant to challenge personal jurisdiction by filing a motion to dismiss. See Knipple v. Viking Communications, Ltd., 236 Conn. 602, 605, 674 A.2d 426 (1996). “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991).

A motion to dismiss challenging the court’s jurisdiction requires a two part inquiry. “The trial court must first decide whether the applicable long arm statute authorizes the assertion of jurisdiction over the [defendant], If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.” (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606.

General Statutes § 33-929 (f) provides in relevant part that “[e]very foreign corporation shall be subject to suit in this state, by a resident of this state . . . whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising ... (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state . . . .”

The plaintiff claims that the requirements of § 33-929 (f) (2) are satisfied because Princess Vacations, Inc., repeatedly has solicited business in Connecticut on behalf of the resort. The plaintiff cites newspaper advertising distributed in Connecticut, the delivery and distribution of brochures to Connecticut travel agencies and the maintenance of an Internet web site. The plaintiff argues that those activities of a subsidiary corporation are sufficient to establish the requisite personal jurisdiction over the defendant as the parent corporate entity.

It is undisputed that Princess Vacations, Inc., repeatedly solicited business in Connecticut. It also is undisputed that Princess Vacations, Inc., is the wholly owned subsidiary of Princess Hotels, International, and that Princess Hotels, International, in turn, is the wholly owned subsidiary of the defendant. Whether those facts are sufficient to support jurisdiction over the defendant in the present case, however, requires us to examine the vitality of the rule enunciated in Cannon Manufacturing Co. v. Cudahy, 267 U.S. 333, 45 S. Ct. 250, 69 L. Ed. 634 (1925), that the use of a subsidiary to transact business is not sufficient to subject a nonresident parent corporation to the jurisdiction of the forum in which that business is transacted.

The plaintiff argues that the rule established by the Supreme Court in Cannon has been overruled by International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and its progeny. In support of that argument, the plaintiff refers to Brunswick Corp. v. Suzuki Motor Co., Ltd., 575 F. Sup. 1412 (E.D. Wis. 1983). In Brunswick Corp., the plaintiff obtained extraterritorial service of process on two parent corporations in Japan. In that case, the plaintiff contended that the “substantial, continuous, and systematic” activities of their wholly owned subsidiaries within Wisconsin were sufficient to establish that the foreign parents were “ ‘doing business’ ” in the state, pursuant to the requirements of that state’s long arm statute. Id., 1416. The United States District Court for the Eastern District of Wisconsin was called on to decide whether the “ ‘doing business’ ” and due process requirements for jurisdiction over the Japanese parent corporations were satisfied simply by reference to the in-state activities of their wholly owned subsidiaries. Id., 1417.

The court concluded that such jurisdiction was proper. The Brunswick Corp. court explained that “Cannon was decided twenty years before International Shoe and in a context in which extraterritorial service of process on a nonresident corporation was statutorily unauthorized and constitutionally restricted by the old territorial due process notion that a state might exercise jurisdiction only over those persons present in the forum. Because the parent corporation in Cannon had not entered the forum but rather had elected to have a separate subsidiary do business there, the only way for the plaintiff to obtain service was to establish, on traditional corporate law principles, those facts that would permit a Court to pierce the corporate veil, find the subsidiary to be the alter ego of its parent, and treat the two corporations as a single entity. Since 1925, notions of due process and personal jurisdiction have evolved considerably. . . . Except in very limited circumstances, Cannon’s use of alter ego theories for jurisdictional purposes has become an anachronism.” (Citation omitted.) Id., 1418.

We do not find Brunswick Corp. persuasive. “[I]t is a fundamental principle of corporate law that the parent corporation and its subsidiary are treated as separate and distinct legal persons even though the parent owns all the shares in the subsidiary and the two enterprises have identical directors and officers. Such control, after all, is no more than a normal consequence of controlling share ownership.” (Internal quotation marks omitted.) SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 232, 585 A.2d 666, cert. denied, 501 U.S. 1223, 111 S. Ct. 2839, 115 L. Ed. 2d 1008 (1991). “This court has indicated that the [Cannon] rule remains viable, that inter-corporate adherence to the forms of separation will be respected even when the management personnel are the same if the identical sets of officers and directors operate in theoretically distinct capacities for each entity and the admittedly fine distinction between control by the same individuals and ‘actual corporate control’ is supported by the evidence.” (Internal quotation marks omitted.) McPheron v. Penn Central Transportation Co., 390 F. Sup. 943, 954-55 (D. Conn. 1975).

We are not alone in rejecting the holding in Brunswick Corp. that the proper jurisdictional analysis permits consideration of a nonresident’s contacts with the forum state through its wholly owned subsidiaries regardless of whether there has been adherence to corporate formalities. Brunswick Corp. has been rejected by its sister court in the western district of Wisconsin. See Insolia v. Philip Morris, Inc., 31 F. Sup. 2d 660, 671 (W.D. Wis. 1998). Further, Brunswick Corp.’s holding that the Cannon presumption of corporate separateness is no longer appropriate goes against the weight of federal case law on the subject. The prevailing view appears to be that the mere incidence of “stock ownership in or affiliation with a corporation, without more, is not a sufficient minimum contact [to satisfy due process requirement and justify the exercise of personal jurisdiction over a nonresident parent corporation].” Central States, Southeast & Southwest Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 943 (7th Cir. 2000), cert. denied, 532 U.S. 943, 121 S. Ct. 1406, 149 L. Ed. 2d 348 (2001), citing Miller v. Honda Motor Co., Ltd., 779 F.2d 769, 771-72 (1st Cir. 1985); Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1273-74 (6th Cir. 1998); Transure, Inc. v. Marsh & McLennan, Inc., 766 F.2d 1297, 1299 (9th Cir. 1985); see also Shaffer v. Heitner, 433 U.S. 186, 216, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977) (ownership of shares in corporation located in forum is not purposeful availment of that forum). Thus, even with respect to inquiries under the International Shoe Co. standard, the fundamental principle of respect for the separateness of corporate identity appears to retain its validity for jurisdictional purposes.

Recently, the United States Court of Appeals for the Seventh Circuit reaffirmed the principle that mere stock ownership in a subsidiary corporation is not sufficient to establish jurisdiction over a nonresident parent corporation. “[Wjhere corporate formalities are substantially observed and the parent does not dominate the subsidiary, a parent and a subsidiary are two separate entities and the acts of one cannot be attributed to the other. The Supreme Court, in a discussion of whether jurisdiction over the subsidiary can be leveraged into jurisdiction over the parent, has stated that [e]ach defendant’s contacts with the forum State must be assessed individually. [Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984)]. The unilateral activity of an entity cannot subject a nonresident defendant to personal jurisdiction in the entity’s forum. . . . Where two corporations are in fact separate, permitting the activities of the subsidiary to be used as a basis for personal jurisdiction over the parent violates this principle and thus due process. . . . [T]he primary purpose of the corporate form is to prevent a company’s owners, whether they are persons or other corporations, from being liable for the activities of the company. Where corporate formalities have been observed, a company’s owners reasonably expect that they cannot be held liable for the faults of the company. Thus, such owners do not reasonably anticipate being [haled] into a foreign forum to defend against liability for the errors of the corporation.” (Citations omitted; internal quotation marks omitted.) Central States, Southeast & Southwest Areas Pension Fund v. Reimer Express World Corp., supra, 230 F.3d 944.

Having declined the plaintiffs invitation to depart from the Cannon rule, we next consider whether the court improperly granted the defendant’s motion to dismiss on the ground that the court did not pierce the corporate veil. “[B]efore [a long arm] statute can be utilized as a basis for the exercise of jurisdiction over the [nonresident] foreign corporation, the corporate veil must be pierced so that acts of the domestic subsidiary can be imputed to the absent parent.” McPheron v. Penn Central Transportation Co., supra, 390 F. Sup. 949. Whether to pierce the corporate veil constitutes a factual inquiry, and we will not reverse the trial court’s findings of fact unless they are clearly erroneous. Davenport v. Quinn, 53 Conn. App. 282, 302, 730 A.2d 1184 (1999).

“Our Supreme Court discussed the concept of piercing the corporate veil in Zaist v. Olson, 154 Conn. 563, 573-74, 227 A.2d 552 (1967). Courts will disregard the fiction of separate legal entity when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock. . . . Under such circumstances the general rule, which recognizes the individuality of corporate entities and the independent character of each in respect to their corporate transactions, and the obligations incurred by each in the course of such transactions, will be disregarded, where, as here, the interests of justice and righteous dealing so demand. . . . The circumstance that control is exercised merely through dominating stock ownership, of course, is not enough. . . . There must be such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal.” (Internal quotation marks omitted.) Davenport v. Quinn, supra, 53 Conn. App. 299-300.

“When determining whether piercing the corporate veil is proper, our Supreme Court has endorsed two tests: the instrumentality test and the identity test. The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of. . . .

“The identity rule has been stated as follows: If a plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one coiporation for the benefit of the whole enterprise. . . . The concept of piercing the corporate veil is equitable in nature and courts should pierce the corporate veil only under exceptional circumstances.” (Citation omitted; internal quotation marks omitted.) Id., 300-301.

We note that the plaintiff has failed to raise any allegations that would support a court’s piercing the corporate veil in the instant case. She has not alleged that the defendant exercises control over or dominates its subsidiary companies. Indeed, at the trial level and on appeal, the plaintiffs argument with respect to the propriety of exercising jurisdiction over the defendant focused solely on the incidence of corporate ownership. “When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983).

There was no evidence adduced at trial that would support the conclusion that the corporate entities actually doing business within the state did so as agents of the defendant or that those companies were mere alter egos of the defendant. The court found that the defendant is a Delaware corporation that has never been authorized to do business in Connecticut and that it has never done business in the state under its own name or under any other name. The court also found that the defendant’s sole purpose was to act as a holding company for subsidiary corporations. The defendant had no employees, nor did it provide any services to any of its subsidiary companies. The court found that other companies, not the defendant, owned, controlled, managed or operated the resort. Although the defendant and its subsidiary companies have overlapping boards of directors, that alone is insufficient to establish the parent’s domination or control of the subsidiary beyond that which normally is associated with the incidence of corporate ownership. Even “100% stock ownership and commonality of [officers and directors] are not alone sufficient to establish an alter ego relationship between two corporations.” (Internal quotation marks omitted.) Insolia v. Philip Morris, Inc., supra, 31 F. Sup. 2d 669, quoting Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1160 (5th Cir. 1983). The court further found that there had been adherence to the corporate formalities between the defendant and its subsidiaries.

The plaintiff did not produce any evidence that calls into question any of the court’s findings. We conclude that the court’s factual findings are not clearly erroneous and that on the basis of those findings, the court properly declined to pierce the corporate veil and assert jurisdiction over the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       Actually, the defendant is the corporate parent once removed. As previously stated, Princess Vacations, Inc., is the wholly owned subsidiary of Princess Hotels, International, which in turn is the wholly owned subsidiary of the defendant.

       The plaintiff additionally warns of the consequences of allowing a parent corporation to escape liability for the actions of its subsidiaries. The corporate form is designed to insulate shareholders from liability beyond the amount of their investment in the company. Absent factual findings that would allow the court to pierce the corporate veil, we see no reason to vitiate the benefits of limited liability incidental to the corporate form. See Insolia v. Philip Morris, Inc., supra, 31 F. Sup. 2d 670. In the present case, the plaintiff has not even alleged, much less proven, that any of the subsidiaries are undercapitalized, have not kept the proper records or are mere alter egos of the parent holding company. In the absence of such findings, we cannot conclude that the corporate structure was designed for any fraudulent or improper purpose.