Girolametti v. VP Buildings, Inc. , 332 Conn. 67 ( 2019 )

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JOHN GIROLAMETTI, JR., ET AL. v. MICHAEL
HORTON ASSOCIATES, INC.
(SC 20032)
(SC 20033)
(SC 20036)
JOHN GIROLAMETTI, JR., ET AL.
v. VP BUILDINGS, INC., ET AL.
(SC 20034)
(SC 20035)
Robinson, C. J., and Palmer, McDonald, D’Auria and Ecker, Js.
Syllabus
The plaintiff property owners sought to recover damages from the defendant
contractor and subcontractors for, inter alia, their alleged negligence
in connection with a commercial construction project. Prior to the
commencement of the present actions, the plaintiffs and the general
contractor, R Co., pursuant to a contract between them, entered into
arbitration to resolve various disputes regarding the project, which
resulted in an award in favor of R Co. R Co. and five of the defendant
subcontractors thereafter moved for summary judgment in the plaintiffs’
actions on the basis of res judicata, contending that all of the claims
raised in the underlying actions had been or could have been raised
and resolved during the arbitration between the plaintiffs and R Co.
The trial court granted R Co.’s motion for summary judgment but denied
the defendant subcontractors’ motions for summary judgment, conclud-
ing, with respect to the defendant subcontractors, that they were not
parties to the arbitration and were not in privity with R Co. The defendant
subcontractors thereafter appealed from the denial of their summary
judgment motions to the Appellate Court. The Appellate Court reversed
the trial court’s denial of the summary judgment motions, concluding
that the defendant subcontractors were in privity with R Co. for purposes
of res judicata and, therefore, that the plaintiffs’ claims were barred
because they could have been raised during the arbitration. In so con-
cluding, the Appellate Court adopted a rebuttable presumption that
subcontractors are in privity with a general contractor on a construction
project for purposes of res judicata. On the granting of certification,
the plaintiffs appealed to this court. Held:
1. The Appellate Court correctly determined that, when a property owner
and a general contractor enter into binding, unrestricted arbitration to
resolve disputes arising from a construction project, the subcontractors
are presumptively in privity with the general contractor for purposes
of precluding subsequent litigation against the subcontractors concern-
ing the project under the doctrine of res judicata: adopting a rebuttable
presumption of privity under such circumstances, but allowing parties
to contract around it if they so choose, fosters a fair and efficient system
for resolving construction disputes, and the value of arbitration would
be undermined if arbitration awards were not presumptively final as to all
subcontractors, as owners would otherwise be able to bring subsequent
actions against subcontractors in different forums, leading to the ineffi-
cient proliferation of proceedings and potentially inconsistent outcomes;
moreover, there was no merit to the plaintiffs’ claim that it would be
unfair to adopt such a presumption because many of the potential
sources of dispute between a property owner and a subcontractor either
cannot be raised and resolved in an arbitration between the property
owner and the general contractor or will not be apparent before the
arbitration has concluded, as the plaintiffs failed to provide legal author-
ity for the proposition that subcontractors typically owe property owners
a duty independent of the general contractor that would provide the
basis for a direct action against the subcontractors or that such claims
could not be raised in arbitration between the owner and general contrac-
tor regardless of whether subcontractors could be compelled to partici-
pate in arbitration, and the record in the present case was devoid of
any indication that the plaintiffs sought and were denied permission to
raise such claims in their arbitration with R Co.; furthermore, the plain-
tiffs could not prevail on their claims that the Appellate Court improperly
ignored this court’s prior precedent in concluding, on the basis of the
defendant subcontractors’ contractual relationship with R Co., that they
were in privity with R Co., and that a presumption of privity was ill
suited for the complexities of the commercial construction industry.
2. The plaintiffs could not prevail on their claim that the presumption of
privity should not apply in the present case because the parties did not
intend to structure their legal relationships in such a manner, and,
accordingly, the Appellate Court correctly concluded that the defendant
subcontractors and R Co. were in privity and that the trial court improp-
erly denied the defendant subcontractors’ motions for summary judg-
ment on the basis of res judicata: the record indicated that the plaintiffs
anticipated, or reasonably should have anticipated, that their arbitration
with R Co. would be the proper forum for addressing any claims that
they may have had against the defendant subcontractors at that time,
as the standard form construction contract that the plaintiffs chose to
use provided that the general contractor would be responsible for all
of the subcontractors’ work and would be answerable to the owner for
such work, the contract contained an arbitration clause that allowed
for the unrestricted submission of virtually all claims and disputes, and
the plaintiffs’ conduct throughout the arbitration process indicated an
expectation that R Co. could be held accountable for the conduct of its
subcontractors; moreover, the arbitrator’s finding that the construction
contract did not obligate R Co. to perform or to be responsible for all
design and engineering aspects of the project did not represent a finding
that R Co. and the defendant subcontractors were not in privity with
respect to the engineering work on the project, as that finding merely
indicated that the plaintiffs had outsourced certain site, plumbing and
electrical work and that R Co. was not responsible to the plaintiffs for
the work of those contractors.
Argued December 14, 2018—officially released June 25, 2019
Procedural History
Action, in the first case, to recover damages from the
defendant Michael Horton Associates, Inc., for alleged
negligence, brought to the Superior Court in the judicial
district of Danbury, where the defendant Michael Hor-
ton Associates, Inc., filed apportionment complaints
against the defendant Rizzo Corporation et al., and
action, in the second case, to recover damages for, inter
alia, the defendants’ alleged negligence, brought to the
Superior Court in the judicial district of Danbury, where
the cases were transferred to the judicial district of
Waterbury, Complex Litigation Docket; thereafter, the
plaintiffs in the first case filed an amended complaint
asserting claims against the defendant Rizzo Corpora-
tion et al.; subsequently, in the first case, the court,
Agati, J., granted the motion for summary judgment
filed by the defendant Rizzo Corporation and denied the
motions for summary judgment filed by the defendant
Michael Horton Associates, Inc., et al.; thereafter, in
the second case, the court, Agati, J., denied the motion
for summary judgment filed by the defendant Blue-
Scope Buildings North America, Inc., et al.; subse-
quently, the plaintiffs and the defendant Michael Horton
Associates, Inc., et al. in the first case, and the defendant
BlueScope Buildings North America, Inc., et al. in the
second case, filed separate appeals with the Appellate
Court, Sheldon, Mullins and Bishop, Js., which affirmed
the decision of the trial court granting the motion for
summary judgment filed by the defendant Rizzo Corpo-
ration in the first case, reversed the decisions of the
trial court denying the motions for summary judgment
filed by the defendant Michael Horton Associates, Inc.,
et al. in the first case, reversed the decision of the trial
court denying the motion for summary judgment filed
the defendant BlueScope Buildings North America, Inc.,
et al. in the second case, and remanded both cases with
direction to grant those motions for summary judgment,
from which the plaintiffs, in both cases, on the granting
of certification, appealed. Affirmed.
Brian J. Donnell, with whom was Michael G. Cald-
well, for the appellants (plaintiffs in both cases).
Anita C. Di Gioia, for the appellee in Docket No.
SC 20032 (defendant Domenic Quaraglia Engineering,
Inc.).
Kevin M. Godbout, with whom, on the brief, was
Alison H. Weinstein, for the appellee in Docket No. SC
20033 (defendant Michael Horton Associates, Inc.).
Sean R. Caruthers, with whom, on the brief, was
Mark A. Milano, for the appellee in Docket No. SC 20034
(defendant Pat Munger Construction Company, Inc.).
Curtis L. Brown, pro hac vice, with whom were Dam-
ian K. Gunningsmith and, on the brief, David S.
Hardy, for the appellee in Docket No. SC 20035 (defen-
dant BlueScope Buildings North America, Inc., et al.).
Deborah Etlinger, with whom, on the brief, was Erin
E. Canalia, for the appellee in Docket No. SC 20036
(defendant Lindade Construction, Inc.).
Louis R. Pepe and Douglas M. Poulin filed a brief
for Associated General Contractors of Connecticut as
amicus curiae in Docket No. SC 20036.
Opinion
D’AURIA, J. This certified appeal poses the question
of whether and under what circumstances arbitration
of a construction dispute between a property owner
and a general contractor is res judicata as to the claims
of subcontractors1 that did not participate in the arbitra-
tion. We agree with the Appellate Court that, in the
absence of clear evidence of contrary intent by the par-
ties, subcontractors are presumptively in privity with
the general contractor on a construction project for pur-
poses of res judicata. Accordingly, we affirm the judg-
ment of the Appellate Court.
I
The relevant factual and procedural history is set
forth in full in the decision of the Appellate Court. See
Girolametti v. Michael Horton Associates, Inc., 173
Conn. App. 630, 636–46, 164 A.3d 731 (2017). We briefly
summarize that history as follows.
These five consolidated appeals arise from disputes
regarding the construction of an expansion to a Party
Depot Store located in Danbury. The plaintiffs are the
owners of the store, John Girolametti, Jr., and Cindy
Girolametti. The defendant-appellees are five subcon-
tractors on the project: Michael Horton Associates, Inc.
(Horton), Domenic Quaraglia Engineering, Inc. (Quara-
glia), Lindade Construction, Inc. (Lindade), BlueScope
Buildings North America, Inc., and its employee, Steven
Oakeson (BlueScope), and Pat Munger Construction
Company, Inc. (Munger). Other original defendants,
including the general contractor on the project, Rizzo
Corporation (Rizzo), and other subcontractors, are not
involved in the present appeals.2
In 2009, following the completion of the project and
Danbury’s issuance of a certificate of occupancy, the
plaintiffs and Rizzo, pursuant to the contract between
them (prime contract), entered arbitration to resolve
various disputes regarding the project. Rizzo contended
that the plaintiffs owed it further sums beyond the con-
tract price for extra work performed and costs incurred
in connection with the project. For their part, the plain-
tiffs sought to hold Rizzo liable for costs arising from,
among other things, Rizzo’s alleged failure to complete
the project in a timely and proper manner. They
claimed, for example, that Rizzo was responsible for
multiple construction defects, had failed to provide a
pre-engineered structure that complied with the intent
of the original design, and had eliminated some
important construction elements, jeopardizing the
building’s load carrying capacity. None of the other
defendants was formally a party to the arbitration.
In December, 2010, on the thirty-third day of what
would ultimately be a thirty-five day hearing, the plain-
tiffs decided to no longer participate in the arbitration
proceed to present their damages claims. The arbitrator
subsequently issued an award ordering the plaintiffs to
pay $508,597 to Rizzo for sums due. Rizzo’s subsequent
application to confirm the award was granted by the
trial court.
With respect to the plaintiffs’ claims, the arbitrator
found that the plaintiffs made a conscious and informed
decision to no longer attend the hearing, and intention-
ally refused to present any evidence or expert witnesses
to explain or justify any alleged damages. From this
finding, the arbitrator concluded that either the plain-
tiffs did not incur any damages or were unable to prove
their damages. The arbitrator also rejected the plain-
tiffs’ claims that the second floor of the building
remained unoccupied due to construction defects
resulting in structural problems. The arbitrator instead
concluded that the structure had passed inspection but
that Danbury zoning regulations did not permit use of
the second floor for any purpose.
The present appeals arise from two lawsuits, one
filed during the arbitration proceedings and one filed
subsequently, in which the plaintiffs sought to recover
from Rizzo and from its subcontractors. At the heart
of many of the plaintiffs’ claims in these underlying
cases are allegations of negligence in connection with
the design and construction of the steel joists used to
support the second floor of the building. In the actions
underlying these appeals, each of the defendants—who
were involved in various capacities in the design and
construction of the second floor supports—moved for
summary judgment against the plaintiffs on the basis
of, among other grounds, res judicata. That is, they
contended that all of the claims raised in the underlying
actions either had been or could have been raised and
resolved during the arbitration.
The trial court granted the motion filed by Rizzo but
denied the motions for summary judgment filed by the
other defendants. The court concluded that the plain-
tiffs’ actions against the subcontractor defendants were
not barred by res judicata because those defendants
were not parties to the arbitration and were not in
privity with Rizzo. Although it is unclear from the
court’s brief order, its conclusion that the defendants
were not in privity with Rizzo appears to be founded
on the premise that they could not have been compelled
to participate in the arbitration process.
The defendants brought an interlocutory appeal from
the court’s denial of their motions for summary judg-
ment. See, e.g., Santorso v. Bristol Hospital, 308 Conn.
338, 346 n.7, 63 A.3d 940 (2013) (interlocutory appeal
may be taken from denial of motion for summary judg-
ment based on res judicata or collateral estoppel). The
Appellate Court reversed the judgment of the trial court
with respect to the res judicata issue as to all of the
defendants. That court held that all of the defendants
were in privity with Rizzo for purposes of res judicata
and, therefore, that the plaintiffs’ claims were barred
because they could have been raised during the arbitra-
tion. See Girolametti v. Michael Horton Associates,
Inc., supra, 173 Conn. App. 630. These certified appeals
followed.3 Additional facts will be set forth as appro-
priate.
II
‘‘[T]he applicability of res judicata . . . presents a
question of law over which we employ plenary review.’’
Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010).
The Appellate Court accurately set forth the well estab-
lished legal principles that govern res judicata: ‘‘[T]he
doctrine of res judicata, or claim preclusion, [provides
that] a former judgment on a claim, if rendered on
the merits, is an absolute bar to a subsequent action
[between the same parties or those in privity with them]
on the same claim. A judgment is final not only as to
every matter which was offered to sustain the claim,
but also as to any other admissible matter which might
have been offered for that purpose. . . . The rule of
claim preclusion prevents reassertion of the same claim
regardless of what additional or different evidence or
legal theories might be advanced in support of it. . . .
In order for res judicata to apply, four elements must
be met: (1) the judgment must have been rendered on
the merits by a court of competent jurisdiction; (2) the
parties to the prior and subsequent actions must be the
same or in privity; (3) there must have been an adequate
opportunity to litigate the matter fully; and (4) the same
underlying claim must be at issue.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Girolametti v. Michael Horton Associates, Inc., supra,
173 Conn. App. 650. With respect to the first element,
a judgment rendered on the merits, the Appellate Court
also noted, and the parties do not dispute, that ‘‘[a]n
arbitration award is accorded the benefits of the doc-
trine of res judicata in much the same manner as the
judgment of a court.’’ (Internal quotation marks omit-
ted.) Id., 649; accord Haynes v. Yale-New Haven Hospi-
tal, 243 Conn. 17, 21 n.5, 699 A.2d 964 (1997).
The following principles govern the second element
of res judicata, privity, the only element at issue in the
present appeal: ‘‘Privity is a difficult concept to define
precisely. . . . There is no prevailing definition of priv-
ity to be followed automatically in every case. It is not
a matter of form or rigid labels; rather it is a matter of
substance. In determining whether privity exists, we
employ an analysis that focuses on the functional rela-
tionships of the parties. Privity is not established by
the mere fact that persons may be interested in the
same question or in proving or disproving the same set
of facts. Rather it is, in essence, a shorthand statement
for the principle that [preclusion] should be applied
only when there exists such an identification in interest
of one person with another as to represent the same
legal rights so as to justify preclusion.’’ (Citation omit-
ted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813–
14, 695 A.2d 1010 (1997).
‘‘While it is commonly recognized that privity is diffi-
cult to define, the concept exists to ensure that the
interests of the party against whom collateral estoppel
[or res judicata] is being asserted have been adequately
represented . . . . A key consideration in determining
the existence of privity is the sharing of the same legal
right by the parties allegedly in privity.’’ (Internal quota-
tion marks omitted.) Id., 813.
Consistent with these principles, this court and other
courts have found a variety of factors to be relevant to
the privity question. These factors include the func-
tional relationships between the parties, how closely
their interests are aligned, whether they share the same
legal rights, equitable considerations, the parties’ rea-
sonable expectations, and whether the policies and
rationales that underlie res judicata—achieving finality
and repose, promoting judicial economy, and pre-
venting inconsistent judgments—would be served. See
id., 812–16; see also Wayne County Hospital, Inc. v.
Jakobson, 567 Fed. Appx. 314, 317 (6th Cir. 2014)
(applying Kentucky law); DKN Holdings, LLC v.
Faerber, 61 Cal. 4th 813, 826, 352 P.3d 378, 189 Cal.
Rptr. 3d 809 (2015); Foster v. Plock, 394 P.3d 1119, 1126
(Colo. 2017). ‘‘[T]he crowning consideration, [however,
is] that the interest of the party to be precluded must
have been sufficiently represented in the prior action so
that the application of [res judicata] is not inequitable.’’
(Internal quotation marks omitted.) Wheeler v. Beach-
croft, LLC, 320 Conn. 146, 167, 129 A.3d 677 (2016).
III
Applying these principles to the facts of the present
case, the Appellate Court concluded that each of the
defendants was in privity with Rizzo for purposes of
res judicata. Girolametti v. Michael Horton Associates,
Inc., supra, 173 Conn. App. 685–86. On appeal, the plain-
tiffs contend that the Appellate Court improperly
applied a presumption—they label it a ‘‘safe harbor’’
rule—that a general contractor is in privity with all
of its subcontractors on a construction project, and,
therefore, if an owner and a general contractor choose
to arbitrate the typical postconstruction disputes at the
end of a project, then the outcome of that arbitration
will be res judicata as to all subcontractors (assuming
that the other elements of res judicata are satisfied).
The plaintiffs argue that such a rule conflicts with estab-
lished Connecticut precedent and also that, for various
reasons, adopting such a rule would be both unwise
and unfair. Because we agree that a general contractor
is presumptively in privity with its subcontractors for
purposes of res judicata, and because we perceive no
reason to depart from that presumption under the spe-
cific facts and circumstances of the present case, we
affirm the judgment of the Appellate Court.
A
1
When applying the law to complex endeavors such
as large-scale commercial construction, it often is desir-
able to adopt default rules, whether in the form of legal
presumptions or standardized contracts. See E. Zamir,
‘‘The Inverted Hierarchy of Contract Interpretation and
Supplementation,’’ 97 Colum. L. Rev. 1710, 1755–56,
1768 (1997); T. Rakoff, Comment, ‘‘Social Structure,
Legal Structure, and Default Rules: A Comment,’’ 3 S.
Cal. Interdisc. L.J. 19, 20, 25–26 (1993). These default
rules help to reduce transaction costs, increase efficien-
cies, and resolve contractual ambiguities. E. Zamir,
supra, 1755–56, 1756 n.175. At the same time, to the
extent that public policy is not offended, parties retain
the flexibility and freedom to contract around default
rules to better serve their unique interests and needs.4
See id., 1769–70; see also I. Ayres & R. Gertner, ‘‘Filling
Gaps in Incomplete Contracts: An Economic Theory of
Default Rules,’’ 99 Yale L.J. 87, 87–88 (1989).
The amicus explains why adopting a default presump-
tion of privity between general contractors and subcon-
tractors is an efficient approach that mirrors the choices
that reasonable parties would have made had they
expressly considered the question at the outset. See I.
Ayres & R. Gertner, supra, 99 Yale L.J. 89–92 (default
rules should reflect either what these particular parties
actually would have chosen or what arrangements most
reasonable bargainers would prefer). The amicus notes
that the standard form contracts used in the construc-
tion industry typically make the general contractor
responsible for the work of all subcontractors.5 They
explain that owners as well as contractors benefit from
a presumption that all outstanding disputes involving
work on a project can be resolved in the context of
an owner-general contractor arbitration. Such a rule
permits owners to bring and efficiently and finally
resolve all of their claims arising from a project in a
single forum, without having to pursue individual sub-
contractors and sub-subcontractors for satisfaction.
The amicus also contends that the use and value of arbi-
tration—particularly specialized construction industry
arbitration—would be undermined if arbitration awards
were not presumptively final as to all subcontractors.
This is because owners who fail to prevail in arbitration
could bring subsequent actions against various subcon-
tractors in different forums, leading to the inefficient
proliferation of proceedings and potentially inconsis-
tent outcomes.
A number of other jurisdictions have adopted the
rule advocated by the amicus by applying at least a
rebuttable presumption that subcontractors are in priv-
ity with a general contractor for purposes of res judi-
cata. See, e.g., Columbia Steel Fabricators, Inc. v.
Ahlstrom Recovery, 44 F.3d 800, 802 (9th Cir.) (holding
that arbitration award for general contractor was res
judicata as to subcontractor, which was in privity with
general contractor), cert. denied, 516 U.S. 864, 116 S.
Ct. 178, 133 L. Ed. 2d 117 (1995); United States ex rel.
Paul v. Parsons, Brinkerhoff, Quade & Douglas, Inc.,
860 F. Supp. 370, 373 (S.D. Tex. 1994) (under Texas
law, general contractor is in vicarious liability relation-
ship with its subcontractor for purposes of res judicata),
aff’d, 53 F.3d 1282 (5th Cir. 1995), cert. denied, 516 U.S.
1094, 116 S. Ct. 817, 133 L. Ed. 2d 762 (1996); Chest-
nut Hill Development Corp. v. Otis Elevator Co., 739 F.
Supp. 692, 698 (D. Mass. 1990) (subcontractor could bind
developer with respect to issues litigated between devel-
oper and general contractor in prior arbitration); Asso-
ciated Construction Co. v. Camp, Dresser & McKee,
Inc., 646 F. Supp. 1574, 1578 (D. Conn. 1986) (applying
Connecticut law, subcontractors were deemed to be
in privity with general contractor with respect to res
judicata effects of prior arbitration between general
contractor and city because [1] claims were asserted
under project contract and [2] subcontractors had
received payment for work from which claims arose);
DKN Holdings, LLC v. Faerber, supra, 61 Cal. 4th 828
(‘‘[d]erivative liability supporting preclusion has been
found between . . . a general contractor and subcon-
tractors’’ [citations omitted]); E.W. Audet & Sons, Inc.
v. Fireman’s Fund Ins. Co. of Newark, New Jersey,
635 A.2d 1181, 1187 (R.I. 1994) (subcontractors and
prime contractor were in privity for purposes of res
judicata); cf. Kansas City, Missouri ex rel. Lafarge
North America, Inc. v. Ace Pipe Cleaning, Inc., 349
S.W.3d 399, 404–405 n.11 (Mo. App. 2011) (subcontrac-
tor is in direct privity of contract with general contrac-
tor and law adopts legal fiction that sub-subcontractor
also is in privity of contract with general contractor, for
purposes of recovery against statutory payment bond);
CDJ Builders Corp. v. Hudson Group Construction
Corp., 67 A.D. 3d 720, 722, 889 N.Y.S.2d 64 (2009)
(‘‘[a]s a general rule, a subcontractor is in privity with
the general contractor on a construction project’’). At
least one Connecticut court also has applied this rule.
See Tierney v. Renaud Morin Siding, Inc., Superior
Court, judicial district of Fairfield, Docket No. CV-08-
5014179-S (October 29, 2008) (46 Conn. L. Rptr. 599)
(homeowners who had arbitrated dispute with general
contractor were precluded from bringing subsequent
claim against subcontractor, who was deemed to be in
contractual privity with general contractor).
Although this rule primarily has been justified on the
theory that subcontractors are in privity of contract
with a general contractor, some commentators and
other legal authorities also have reasoned that the par-
ties share legal rights because general contractors are
vicariously or derivatively liable for the work of their
subcontractors. See 2 Restatement (Second), Judg-
ments § 51, comment (a), pp. 48–49 (1982) (With respect
to preclusion, ‘‘[m]any relationships between persons
result in one of them being vicariously liable for the
conduct of another, the primary obligor. Among these
relationships are that of . . . principal contractor and
sub-contractor to the extent the former is responsible
for the conduct of the latter . . . .’’); C. Ingwalson et
al., ‘‘Arbitration and Nonsignatories: Bound or Not
Bound?,’’ 6 J. Am. C. Constr. Laws., No. 1 January, 2012,
p. 3 (discussing various contract and noncontract theo-
ries according to which nonsignatories may be bound
to arbitration agreements).
Adopting this default rule, but allowing parties to
contract around it if they so choose, creates a system,
both efficient and fair, for resolving complex construc-
tion disputes of this sort. Absent this sort of clear default
rule, a property owner who fails to prevail in arbitration
against a general contractor often will be able to reliti-
gate its claims by simply recharacterizing what are
essentially contract claims as violations of a subcon-
tractor’s allegedly independent, noncontractual duties.
Such fact intensive claims will be difficult for courts
to resolve on summary judgment, largely defeating the
purpose and benefits of the unrestricted arbitration
of disputes.6
2
The plaintiffs offer several arguments as to why the
Appellate Court should not have adopted a default pre-
sumption that general contractors and subcontractors
are in privity for purposes of res judicata with respect
to a postconstruction arbitration in which the subcon-
tractors did not participate. Their primary arguments
are that (1) adoption of such a rule would be unfair,
(2) any rule that grounds res judicata exclusively in
contractual privity and fails to take into account other
aspects of the functional relationship between the par-
ties is inconsistent with this court’s precedent, and (3)
a presumption of privity is inconsistent with the realities
of the construction industry. We consider each argu-
ment in turn.
The plaintiffs first argue that it would be unfair to
adopt a presumption that a general contractor is in
privity with all of its subcontractors on a project for
purposes of applying res judicata rules in this context.
The plaintiffs contend that adopting such a default rule
would be unjust because many of the potential sources
of dispute between a property owner and a subcontrac-
tor either (1) cannot be raised and resolved in an arbitra-
tion, participation in which is limited to the owner and
the general contractor, or (2) will not be apparent and
addressable at the time that the normal postconstruc-
tion disputes are arbitrated in the immediate aftermath
of a project’s completion. The plaintiffs offer, by way of
example, claims involving extended warranties, latent
defects, defects fraudulently concealed, and violations
of professional and statutory obligations.
The plaintiffs have not provided any legal authority,
however, for their assertion that subcontractors typi-
cally owe the property owner any independent stat-
utory, professional, or common-law duties that (1)
would provide the basis for a direct action against the
subcontractor and (2) cannot be raised in the arbitra-
tion between the owner and the general contractor.
When pressed at oral argument before this court, the
plaintiffs’ counsel ultimately conceded that an arbitra-
tor would not be barred from entertaining any such
claims and holding a general contractor responsible for
any such breach, regardless of whether the subcontrac-
tors themselves could be compelled to participate in the
arbitration. Counsel speculated that, in practice, most
arbitrators would be reluctant to pursue such tangen-
tially related matters. The record is devoid of any indica-
tion, however, that the plaintiffs in the present case
sought and were denied permission to raise claims of
that sort in their arbitration with Rizzo. To the contrary,
the arbitrator indicated that he would have preferred
to be able to focus on the ‘‘forest’’ and address ‘‘the
entire [p]roject as a whole’’ but was prevented from
doing so by ‘‘the personal and juvenile manner’’ in which
the plaintiffs and Rizzo approached the arbitration.
We recognize, of course, that a property owner can-
not possibly raise in arbitration claims that have not
yet arisen, such as latent defects, refusal to honor an
extended warranty or ongoing service commitment, and
the like. But for that very reason, such claims would
fail to satisfy the third element of res judicata, which
is that there must have been an adequate opportunity
to litigate the matter fully. Accordingly, an owner would
not be barred from raising claims of this sort in a subse-
quent action, regardless of the existence of privity.
In the present case, we do not understand the plain-
tiffs to allege that any failure of design or workmanship
manifested subsequent to the arbitration. Rather, their
primary claim is that, in early November, 2010, prior
to the conclusion of the arbitration, Rizzo and certain
of the defendants became aware of alleged defects in
the project design but conspired to fraudulently conceal
those defects from the plaintiffs so that they could not
be raised in the arbitration. The Appellate Court con-
cluded that any claim arising from that alleged fraud
is now barred by General Statutes § 52-420 (b), which
provides that a party seeking to vacate an arbitration
award on grounds of corruption, fraud, or undue means
must do so within a thirty day limitation period. See
Girolametti v. Michael Horton Associates, Inc., supra,
173 Conn. App. 653; see also Wu v. Chang, 264 Conn.
307, 312, 823 A.2d 1197 (2003) (after thirty day limitation
period prescribed by § 52-420 [b], court loses jurisdic-
tion to entertain claim that arbitration award was
obtained by fraud). Because we declined to certify the
question of whether the Appellate Court properly
applied § 52-420 (b) under the facts of the present case,
that question is not before us, and we express no opin-
ion as to whether the fraud exception to res judicata;
see Weiss v. Weiss, supra, 297 Conn. 472; applies in the
arbitration context.
We emphasize in this respect that the presumption
of privity is merely a default rule. If, as the plaintiffs
contend, some property owners are reluctant to agree
to arbitrate their disputes with general contractors for
fear that they will be barred subsequently from litigating
related disputes with their subcontractors, nothing pre-
cludes the parties to a construction project from negoti-
ating a contract that carves out certain issues or certain
third parties from the scope of arbitration.
The plaintiffs next argue that the Appellate Court
improperly ignored controlling authority by concluding,
solely on the basis of contractual relationships, that the
defendants were in privity with Rizzo. Specifically, the
plaintiffs contend that our decision in Wheeler v.
Beachcroft, LLC, supra, 320 Conn. 146, modified the
transactional test that governs the privity analysis for
purposes of res judicata and that, under Wheeler, there
can be no privity when the claims at issue are factually
distinct from those raised in the prior litigation or arbi-
tration. The plaintiffs’ reliance on Wheeler is misplaced.
As we explained in Wheeler, the question of whether
the element of res judicata requiring that the prior adju-
dication involves the same underlying claim is distinct
from the privity element. Id., 156–57. It is true that,
under the unique facts and procedural history of
Wheeler, there was substantial overlap between the
privity analysis and the ‘‘same claim’’ element. Id., 165
n.20. Wheeler was a real property case, however, in
which the plaintiffs held lots distinct from those of the
parties with whom they were allegedly in privity. We
emphasized that the parties did not share any common
ownership interests with respect to each other’s lots;
there were no common chains of title, no mutual or
successive prescriptive easement rights, and there was
no privity of estate. Id., 169–70. Accordingly, the only
way that the plaintiffs could have been in privity with
prior litigants with respect to the claimed prescriptive
rights was if their use of the disputed common lawn
was so factually similar as to give rise to an identical
legal right. Id., 158, 166–68. Thus, although commonality
of use might, under different factual circumstances,
have been sufficient to establish privity, we never sug-
gested in Wheeler that factual commonality would have
been necessary if, say, the parties had been in privity
by virtue of contract or shared or successive ownership.
The present case, by contrast, is a contract matter
in which a contractual theory of privity is alleged. Inso-
far as there is contractual privity, the question of factual
commonality is simply irrelevant to the privity analysis.7
Finally, the plaintiffs contend that adopting a pre-
sumption of privity would be unwise because con-
struction projects, contracts, and relationships are
complicated; subcontractors may have duties to and
agreements with owners that are independent of and
distinct from the duties that run through the general
contractors. The plaintiffs warn that any preclusion rule
that fails to account for this reality will sound the death
knell of construction arbitration; property owners will
be loath to agree to arbitration with their general con-
tractors if doing so risks abandoning whatever indepen-
dent rights and claims they may have against the
subcontractors.
We doubt that a presumption of privity would create
a disincentive for property owners to participate in
arbitration. As the amicus explains, it is as much to the
benefit of owners as it is to subcontractors to be able
to expeditiously resolve all disputes arising from a con-
struction project in a single forum. Moreover, the fact
that other jurisdictions apply such a rule, and presum-
ably have not encountered the negative experiences
invoked by the plaintiffs, reassures us that to do so
would not be unwise.
We also are skeptical of the plaintiffs’ contention that
the rule that the Appellate Court applied is ill suited
for the complexities of many present day construction
projects, which tend to feature multiple and divergent
lines of authority running between a project owner and
various contractors and subcontractors. We observe
that the plaintiffs and Rizzo arbitrated their dispute
pursuant to the construction industry arbitration rules
of the American Arbitration Association, and that they
selected as their arbitrator Arthur G. Folster, a general
contractor and registered professional engineer with
more than forty years of experience in contract adminis-
tration and the design and construction of major build-
ing projects worth as much as $500 million. Folster had
been trained as a construction industry arbitrator and
had arbitrated a wide range of project disputes.
The award of this experienced construction arbitra-
tor suggests that, although this particular project was
indeed characterized by multiple, convoluted lines of
authority and ‘‘complicate[d]’’ legal relationships, the
type of arrangement that the plaintiffs orchestrated here
is neither normal nor desirable. Rather, the arbitrator
concluded that the administration of the prime contract
was ‘‘unique,’’ and that the administration and coordina-
tion of the project were performed in a ‘‘flawed manner
. . . .’’8 Accordingly, the fact that a presumption of priv-
ity might not dovetail with the realities of this particular
project does not count as a general strike against a
default presumption of privity.
For these reasons, we conclude that the Appellate
Court correctly determined that when a property owner
and a general contractor enter into binding, unrestricted
arbitration to resolve disputes arising from a construc-
tion project, subcontractors are presumptively in privity
with the general contractor with respect to the preclu-
sive effects of the arbitration on subsequent litigation
arising from the project.
B
Having concluded that the Appellate Court properly
adopted a rebuttable presumption that general contrac-
tors and subcontractors are in privity for purposes of
res judicata, we now consider whether the record sup-
ports the plaintiffs’ contention that the presumption
should not apply in the present case because the parties
did not intend to structure their legal relationships in
such a manner.9 We conclude, to the contrary, that
the record indicates that the plaintiffs anticipated, or
reasonably should have anticipated, that the arbitration
between themselves and Rizzo would be the proper
forum for addressing any claims that existed against
the defendants at that time.
1
The clearest evidence of the parties’ intent in this
regard is the prime contract. The plaintiffs chose to use
a standard form owner-contractor construction con-
tract published by the American Institute of Architects,
and so presumably intended that their agreement would
be governed by industry norms.
The prime contract includes the following relevant
terms: (1) ‘‘Nothing contained in the Contract Docu-
ments shall create any contractual relationship between
the Owner or the Architect and any Subcontractor or
Sub-subcontractor’’; (2) ‘‘[t]he Contractor . . . shall be
solely responsible for all construction means, methods,
techniques, sequences and procedures and for coordi-
nating all portions of the Work under the Contract’’;
(3) ‘‘[t]he Work comprises the completed construction
required by the Contract Documents and includes all
labor necessary to produce such construction’’; (4)
‘‘[t]he Contractor shall be responsible to the Owner for
the acts and omissions of his employees, Subcontrac-
tors and their agents and employees, and other persons
performing any of the Work under a contract with the
Contractor’’; and (5) ‘‘[u]nless otherwise provided in
the Contract Documents, the Contractor shall provide
and pay for all labor . . . and other facilities and ser-
vices necessary for the proper execution and comple-
tion of the Work . . . .’’ Accordingly, although other
provisions of the prime contract reserve to the owner
the right to perform work on the project with his own
forces and to award separate contracts to other contrac-
tors in connection with portions of the project, absent
such arrangements, the contract clearly provides that
the general contractor will be responsible for all of
the subcontractors’ work on the project and will be
answerable to the owner therefor.
Indeed, the prime contract requires the contractor to
formalize these so-called ‘‘flow down’’ obligations with
each subcontractor. Another provision provides: ‘‘By
an appropriate agreement, written where legally
required for validity, the Contractor shall require each
Subcontractor, to the extent of the Work to be per-
formed by the Subcontractor, to be bound to the Con-
tractor by the terms of the Contract Documents, and
to assume toward the Contractor all the obligations
and responsibilities which the Contractor, by these
Documents, assumes toward the Owner . . . . Said
agreement shall preserve and protect the rights of the
Owner . . . under the Contract Documents with
respect to the Work to be performed by the Subcontrac-
tor so that the subcontracting thereof will not prejudice
such rights . . . . Where appropriate, the Contractor
shall require each Subcontractor to enter into similar
agreements with his Sub-subcontractors.’’ As noted in
the opinion of the Appellate Court, although Rizzo’s
subcontract with Lindade includes the flow down provi-
sion required by the prime contract,10 the other defen-
dants’ subcontracts did not include such provisions.
This fact might be relevant to assessing the defendants’
expectations, but the question before us is whether
the plaintiffs, in view of the provisions of the prime
contract, reasonably could have expected that any
claims that they had against Rizzo’s subcontractors
could have been raised against Rizzo in the arbitration.
The answer to that question is unequivocally yes.
The arbitration provision contained in the prime con-
tract confirms this conclusion. ‘‘When the arbitration
agreement is broad . . . and there are no other limits
on the scope of the arbitration, courts have applied res
judicata based on a broad, transactional view of the
arbitrated claim.’’ G. Shell, ‘‘Res Judicata and Collateral
Estoppel Effects of Commercial Arbitration,’’ 35 UCLA
L. Rev. 623, 643 (1988). In the present case, the prime
contract includes a standard construction industry arbi-
tration clause that allows the unrestricted submission
of all claims and disputes to the arbitrator, with the
exception of claims relating to the plaintiffs’ project
architect. In addition, the arbitration provision envi-
sions and permits the joinder or other participation
of third parties who are ‘‘substantially involved in a
common question of fact or law, whose presence is
required if complete relief is to be accorded in the
arbitration.’’ That provision further undercuts the plain-
tiffs’ argument that they could not have sought relief
in the arbitration with respect to claims arising from
the work of Rizzo’s subcontractors. See C. Ingwal-
son et al., supra, 6 J. Am. C. Constr. Laws., no. 1, p. 3
(‘‘[w]hen a contract providing for arbitration refers to
the role to be played by nonsignatories, or when a
pleading in a dispute between signatories refers to con-
duct of nonsignatories . . . there is an increased likeli-
hood that nonsignatories can be bound by, or claim
rights pursuant to, an arbitration clause’’).
We also think that the plaintiffs’ conduct throughout
the arbitration process further evidences an expecta-
tion that Rizzo could be held accountable for the con-
duct of its subcontractors, consistent with a finding of
privity. See footnote 9 of this opinion. In their prehear-
ing brief to the arbitrator, the plaintiffs contended that
‘‘[t]he structural issues on the project for the [p]re-
[e]ngineered [b]uilding are Rizzo’s and [Horton’s]
responsibility.’’ During discovery, the plaintiffs
requested that Rizzo provide all documents relating to
its communications and agreements with its subcon-
tractors. The plaintiffs then issued subpoenas and docu-
ment requests to Quaraglia, Munger, Oakeson, Lindade,
and Horton, among other subcontractors. Although
most of the defendants ultimately were not called to
testify, a representative of Horton, Douglas H. McClos-
key, was called and testified at length over the course
of several days of the arbitration hearing. Further, as
the Appellate Court emphasized, during the arbitration,
the plaintiffs adduced evidence of the alleged failure
of several of the defendants to meet their obligations
on the project. See Girolametti v. Michael Horton
Associates, Inc., supra, 173 Conn. App. 672 (Quaraglia);
id., 680 (Munger); id., 684 (BlueScope). In addition,
while the arbitration was pending, the plaintiffs’ struc-
tural engineer, Richard J. Marnicki, prepared a report
reviewing the building’s load bearing capacities. In pre-
paring that report, Marnicki visited the offices of and
requested engineering drawings and calculations from
several of the defendants. It seems clear, then, that
although the defendants never were formally made
party to the arbitration, the plaintiffs viewed them as
an integral part of the process, saw Rizzo as responsible
for their conduct, and were not precluded from involv-
ing the defendants in the arbitration in various capa-
cities.
2
In arguing for a contrary conclusion, the plaintiffs
contend that the conclusion of the Appellate Court that
Rizzo was in privity with all of its subcontractors is
inconsistent with the arbitrator’s factual findings. In
this respect, the plaintiffs rely heavily on the following
sentence in the arbitration award: ‘‘The [c]ontract, as
drafted by [the project architect] and executed by [the
plaintiffs], does not obligate [Rizzo] to perform or be
responsible for all design and engineering aspects of
the [p]roject.’’ The plaintiffs interpret this finding to
mean that, regardless of any default presumptions,
Rizzo was not in privity with and could not be held
responsible for the defendants’ engineering work on
the project.
The defendants respond, and we agree, that, when
read in context, the arbitrator’s statement does not rep-
resent a finding that Rizzo and its subcontractors were
not in privity with respect to engineering work on the
project. The paragraph of the award in which the sen-
tence appears begins by noting that the contractual
arrangements governing the project were complicated
by virtue of the fact that the plaintiffs chose to contract
independently with Danbury Septic for site work, with
Rieve Plumbing & Mechanical for mechanical design
and construction, and with Tucker Electrical for electri-
cal design work, and that those contractors reported
directly and exclusively to the plaintiffs. That arrange-
ment was consistent with the prime contract, which
permitted the plaintiffs to hire separate contractors and
subcontractors to perform portions of the project. Con-
sidered in that context, the most reasonable reading of
the sentence at issue is that the arbitrator was simply
noting that the plaintiffs permissibly outsourced and
supervised the referenced site work, and plumbing and
electrical work, and, therefore, that Rizzo was not
responsible to the plaintiffs for the work of those sub-
contractors. Our interpretation is supported by the fact
that site work represented one of the principal grounds
for Rizzo’s arbitration claims against the plaintiffs.11
To summarize, we find nothing in the record to rebut
the presumption that the plaintiffs reasonably should
have expected that any claims they had against Rizzo’s
subcontractors could have been raised in the context
of the arbitration. Accordingly, we agree with the Appel-
late Court that the defendants and Rizzo were in privity
for purposes of res judicata and, therefore, that the trial
court improperly denied their motions for summary
judgment on that basis.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
For brevity, we use the term ‘‘subcontractors’’ to refer both to direct
subcontractors of a general contractor and to sub-subcontractors who are
hired by and/or answerable to direct subcontractors or other sub-subcon-
tractors.
2
For this reason, in the remainder of this opinion we refer to the present
appellees—Horton, Quaraglia, Lindade, BlueScope, Oakeson, and Munger—
collectively as the defendants.
3
We granted certification, limited to the following question: ‘‘Did the
Appellate Court properly reverse the trial court’s denial of summary judg-
ment based on the doctrine of res judicata when it determined privity existed
between the defendant subcontractors and the general contractor after the
general contractor had arbitrated issues relating to the construction project
with the project owner[s]?’’ Girolametti v. Michael Horton Associates, Inc.,
327 Conn. 980, 175 A.3d 42 (2017); accord Girolametti v. Michael Horton
Associates, Inc., 327 Conn. 981, 175 A.3d 564 (2017); Girolametti v. Michael
Horton Associates, Inc., 327 Conn. 981, 982, 175 A.3d 42 (2017); Girolametti
v. VP Buildings, Inc., 327 Conn. 982, 186 A.3d 12 (2017); Girolametti v. VP
Buildings, Inc., 327 Conn. 983, 175 A.3d 45 (2017). We note that the plaintiffs
sought certification as to, and have briefed, various other issues that are
peripheral to the certified question, including whether and how claims of
fraud, latent defect, and unripe professional, statutory, and warranty obliga-
tions influence the res judicata analysis in a case such as this. We address
those issues only to the extent that they are encompassed within the certi-
We also granted permission to Associated General Contractors of Connect-
icut to file an amicus curiae brief.
4
Although the question before us is not entirely one of contract law, the
same contractual approach is suitable for application to noncontract matters.
See I. Ayres & R. Gertner, ‘‘Filling Gaps in Incomplete Contracts: An Eco-
nomic Theory of Default Rules,’’ 99 Yale L.J. 87, 88 n.10, 129 (1989); T.
Merrill & H. Smith, ‘‘Optimal Standardization in the Law of Property: The
Numerus Clausus Principle,’’ 110 Yale L.J. 1, 31 (2000).
5
This court has recognized as much, albeit in a different context, noting
that ‘‘most . . . construction work is often subcontracted . . . by a general
contractor who oversees the entire project and is responsible [to the owner]
for the final result.’’ (Internal quotation marks omitted.) Meadows v. Higgins,
249 Conn. 155, 167, 733 A.2d 172 (1999).
6
‘‘A submission [of a dispute to arbitration] is unrestricted when . . . the
parties’ arbitration agreement contains no language restricting the breadth of
issues, reserving explicit rights, or conditioning the award on court review.’’
(Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford
Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 89 n.3, 868 A.2d 47 (2005).
7
It also bears noting that, in Wheeler, the defendants asserted res judicata
against lot owners who were not party to the prior proceedings and, there-
fore, had no prior opportunity to litigate their claims, a consideration that
framed our preclusion analysis. See Wheeler v. Beachcroft, LLC, supra, 320
Conn. 166. In the present case, by contrast, res judicata is being asserted
against the plaintiffs, who were parties to the arbitration and arguably had
the opportunity to raise these issues therein.
8
For example, although the prime contract gave the plaintiffs’ architect,
Russell J. Larrabee, much of the responsibility for administering the contract,
in practice, Larrabee either refused or was not allowed by the plaintiffs to
perform that role. The plaintiffs also changed project engineers midstream.
The arbitrator found that matters were further complicated by the fact
that the plaintiffs contracted separately with various building and design
professionals, and that the parties kept virtually no written records of
their communications.
9
See G. Shell, ‘‘Res Judicata and Collateral Estoppel Effects of Commercial
Arbitration,’’ 35 UCLA L. Rev. 623, 663–65 (1988) (‘‘[T]he court must ask
itself what rational parties would have agreed to had the matter of preclusion
been explicitly negotiated between them. . . . If a party clearly intended
to arbitrate the transaction at issue, then that party should not later be
permitted to circumvent the prior arbitration award by suing a person who
was functionally central to the transaction but who was technically not a
party to the arbitration.’’).
10
‘‘Section 1 (b) of the agreement provides: ‘[Lindade] assumes toward
[Rizzo] all obligations, risks, and responsibilities for the Work, which [Rizzo]
assumes toward [the plaintiffs] in the Contract Documents, and shall be
bound to [Rizzo] in the same manner and to the same extent [Rizzo] is
bound to [the plaintiffs] by the Contract Documents.’ ’’ Girolametti v.
Michael Horton Associates, Inc., supra, 173 Conn. App. 639–40; see also C.
Ingwalson et al., supra, 6 J. Am. C. Constr. Laws., no. 1, p. 3 (‘‘[p]articularly
for those in the construction industry, a clear and express incorporation by
reference of one agreement into another is usually effective’’).
11
This interpretation of the award also is consistent with the position
that the plaintiffs took in the underlying litigation when responding to the
defendants’ interrogatories. For example, in response to BlueScope’s request
that the plaintiffs ‘‘identify each and every person with whom [they] con-
tracted to procure labor, services, materials and/or equipment for the [p]roj-
ect,’’ the plaintiffs responded that they had contracted directly with site
work, sprinkler, and test/inspection contractors, but that, otherwise, they
‘‘contracted only with Rizzo . . . for the design and construction . . . on
the [p]roject’’ and that, ‘‘[a]s part of its representations to the [plaintiffs],
Rizzo assumed the responsibility to contract with the required design profes-
sionals. . . . Rizzo engaged multiple entities to provide structural engi-
neering services, including . . . [Horton, Munger, VP Buildings, Inc.,
Lindade, and Quaraglia].’’ In other words, the plaintiffs themselves drew a
clear distinction during the discovery process between subcontractors who
were answerable directly to them and those, including all of the defendants,
whose responsibility ran directly through Rizzo.