Co-authored by: Brianna Robert & Luc Shay
Attorneys Jon Biller and Brianna Robert successfully argued, on behalf of another plaintiff-property owner, a Motion in Limine before the Connecticut Superior Court, J.D. of Hartford. See Kallmeyer v. Kleen Energy Sys., No. X07-CV-12-5036401-S, 2023 WL 9054174 (Conn. Super. Ct. Dec. 28, 2023). In December of 2023, Superior Court Judge Cesar A. Noble ruled in favor of Attorney Biller’s and Attorney Robert’s client by denying the defendant’s, O&G Industries Inc.’s (“O&G”), Motion in Limine.[1] A Motion in Limine is a pretrial motion whereby a court can disallow a party from presenting certain evidence on an issue at trial or rule on certain evidentiary issues pretrial.[2]
The Kallmeyer v. Kleen Energy Sys. case arose out of a loss suffered by a homeowner after the explosion of a nearby power plant damaged the homeowner’s property.[3] Biller, Sachs & Robert represented the homeowner against the parties charged with carrying on the construction at the power plant.[4]
The defendant advanced several arguments to the court in favor of its motion.[5] Specifically, the defendant argued that the plaintiff should not be allowed to present evidence on the cost to repair the plaintiff’s property; on stigma damages resulting from the explosion; on damages stemming from loss of use of the property; or on certain testimony from one of the plaintiff’s experts.[6]
Pursuant to the stigma damages issue, the defendant O&G Industries argued that a homeowner is not entitled to stigma damages for the loss in value to his home unless he or she actually sells the home and suffers a loss.[7]
Judge Noble accepted the arguments made by Attorneys Biller and Robert that stigma damages, which result in a loss of value to a Connecticut property owner as a result of the negligence of a third party, are recoverable whether the property is sold or not. In adopting Biller, Sachs, & Robert’s argument, Judge Noble held, “The plaintiff is not required to sell the property to recover damages as a result of stigma.”[8]
Another important issue was the defendant O&G’s argument that it could limit its payment to the homeowner to the pre-loss value of the home as determined by the town assessor or the defendant’s own appraiser.[9] O&G had hired an appraiser and then argued that damages should be limited to that appraiser’s determination of the pre-loss, market value of the home.[10] Once again, ruling in our client’s favor, Judge Noble rejected O&G’s argument.[11]
Instead, Judge Noble wrote that an injured plaintiff could elect to calculate damages using diminution in value or repair costs, at his option.[12] The court held, “[T]he plaintiff need offer only evidence of the cost of repairs or diminution in value. If the former, it is the defendant’s burden to demonstrate that the cost of repair” would be an inadequate measure of damages.[13]
This is an important precedent for Connecticut property owners whose homes or businesses have been damaged by the negligent conduct of another party. Limiting damages to the market value of the property, or to the assessor’s determination of value, often leads to inadequate compensation to the injured party. The rule enunciated by Judge Noble as a result of Biller, Sachs & Robert’s efforts allow a property owner to recover the costs to repair their property as long as the repair cost does not exceed the value of the property. The injured party, at its option, can claim a diminution in value, or repair cost, as well as a claim for stigma damages to the property itself.
Ultimately, the court denied the defendant’s motion and ruled in favor of Biller, Sachs & Robert on every issue for which the defendant O&G sought relief.[14] This decision represents another important victory for Biller, Sachs & Robert clients and for Connecticut property owners.
[1] Id. at *3.
[2] See generally Conn. Practice book § 15-3
[3] See Kallmeyer, 2023 WL 9054174, at *1
[4] . See Am. Compl. at ¶ 2, Kallmeyer v. Kleen Energy Sys., No. X07-CV-12-5036401-S (Conn. Super. Ct. Aug. 14, 2023)
[5] Kallmeyer, 2023 WL 9054174, at *1
[6] Id.
[7] See Mot. in Lim. at 11, Kallmeyer v. Kleen Energy Sys., No. X07-CV-12-5036401-S (Conn. Super. Ct. Jul. 24, 2023)
[8] Kallmeyer, 2023 WL 9054174, at *2
[9] See Mot. in Lim. at 9, Kallmeyer, No. X07-CV-12-5036401-S.
[10] Id.
[11] Kallmeyer, 2023 WL 9054174, at *2.
[12] Id.
[13] Id. (Emphasis added).
[14] Id. at *2-3