2009 Ct. Sup. 17263, 48 CLR 707
No. X07-HHD-CV07-5012262S, X07-HHD-CV07-5010699SConnecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
October 27, 2009
MEMORANDUM OF DECISION
BERGER, J.
I
In this action, the plaintiff, Vigilant Insurance Company (Vigilant), seeks to recover monies paid to its insured, Conning Company (Conning), based upon the alleged failure of the defendants, Deloitte
Touche, LLP (D T), and PricewaterhouseCoopers, LLP (PwC), to uncover embezzlement by one of Conning’s employees. Vigilant alleges the following undisputed facts. Jeffrey F. Grous, who held several positions in the accounting and finance department at Conning, including controller, embezzled approximately $5.4 million from Conning from 1996 to 2004. For these losses, Vigilant paid Conning approximately $5.2 million as the fidelity insurer of Conning and its parent company, Swiss Re American Holding Company (SRAH). On July 2, 2001, SRAH acquired Conning from Metropolitan Life Insurance Company, Inc. (Met Life).
Met Life engaged D T to conduct audits for Met Life and its subsidiaries, including Conning, for the fiscal year ending December 31, 2000. According to the complaint, D T specifically agreed to conduct audits in accordance with auditing standards generally accepted in the United States of America (GAAS); to perform an examination in accordance with the attestation standards established by the American Institute of Certified Public Accountants (AICPA); to issue an attestation report on management’s written assertion regarding the effectiveness of Met Life and its subsidiaries’ internal control over financial reporting; to perform an examination of management’s assertions regarding Met Life and its subsidiaries’ policies and procedures relating to information barrier controls; and, as Conning is a broker-dealer and investment advisor, to conduct a study of practices and procedures, related to internal control reporting, and other requirements of Rule 17a-5 of the Securities Exchange Act of 1934 (SEC Rule 17a-5).[1]
Additionally, PwC conducted audits of Conning from at least 2001 to CT Page 17264 2004. Vigilant’s complaint alleges that PwC agreed to conduct audits in accordance with GAAS; to consider Conning’s internal controls; to note significant deficiencies in internal control; to design the audit to obtain reasonable assurance of detecting errors, fraud or other illegal acts that would have a material effect on financial statements; and to report on internal controls as required by SEC Rule 17a-5. Grous’ embezzlement was not discovered through the audits performed by D T or PwC.
On May 21, 2007, Vigilant filed a four-count complaint against PwC. The first count alleges professional negligence under a theory of equitable subrogation, the second alleges breach of contract under equitable subrogation, the third alleges professional negligence under assignment and the fourth alleges breach of contract under assignment. On August 8, 2007, Vigilant filed a two-count complaint against D T. The first count alleges breach of contract under equitable subrogation and the second count alleges breach of contract under assignment. These cases have been consolidated.
All parties have filed motions for summary judgment, whether partial or full. The court will address the respective motions in turn.
II
“Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must 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.” (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. v. Better Benefits, LLC, 292 Conn. 111, 119, 971 A.2d 17
(2009).
III A. 1.
CT Page 17265
On June 9, 2009, D T moved for summary judgment on grounds similar to its previous motion to strike, i.e., both counts of Vigilant’s complaint sound in negligence and not breach of contract, therefore, the six-year statute of limitations for contract actions, General Statutes §52-576, [2] is not applicable. Hence, as this suit was commenced on August 3, 2007, approximately six and one-half years after D T issued its audit opinion letters, dated February 5, 2001, Vigilant is barred from bringing suit by the three-year statute of limitations for negligence, General Statutes § 52-577.[3] This court denied the motion to strike on June 12, 2008.[4]
“Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations [are] not in dispute.” (Citation omitted; internal quotation marks omitted.) Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 8, 965 A.2d 556, cert. denied, 291 Conn 913 A.2d (2009).
Looking now at the evidence, as opposed to being confined to the four corners of the complaint, it is clear that merely stating that D T will perform the audit pursuant to GAAS is no more than spelling out that D T will follow the professional standards. Nevertheless, the material facts that surround the statute of limitations issue are in dispute. The parties’ experts disagree as to whether the engagement letter simply prescribes that D T will perform audits in accordance with professional standards or whether it requires D T to do more. Specifically, the parties’ experts have different opinions as to the “Other Services” encompassed in the engagement letter on pages nine through eleven, which are enumerated in Vigilant’s complaint in paragraphs twenty and twenty-one.[5]
For example, James J. Kern, Vigilant’s expert, stated in his report, dated April 6, 2009, on page three, “D T’s engagement letter . . . states, among other things, that D T will perform an examination of management’s assertions regarding the effectiveness of the Company’s internal controls over financial reporting in accordance with the attestation standards established by the AICPA.” In the same report on page sixteen, Kern concluded that “D T . . . failed to obtain a sufficient understanding of Conning Co.’s internal control, which represents a further failure to comply with GAAS and the terms of the engagement letter.” (Emphasis added.)
On the other hand, Kent E. Barrett, D T’s expert, stated in his report, dated May 11, 2008, on page twenty-two, “Deloitte was only responsible to understanding Conning’s internal controls for purposes of CT Page 17266 designing its audit procedures . . .”[6] On page twenty-four, Barrett opines, “Deloitte was not engaged to provide assurance regarding Conning’s internal control except with regard to the limited procedures related to the calculation of aggregate indebtedness, net capital, and reserves as required by the Securities Exchange Act of 1934.” Barrett went on to state on page forty-two, “Mr. Kern appears to be operating under a mistaken impression that D T was engaged to perform an evaluation of Conning’s overall internal controls . . . However, D T was not responsible under GAAS to search for deficiencies in Conning’s internal controls . . .”[7] Because the material facts concerning the statute of limitations are in dispute, summary judgment is not proper. See Blinkoff v. O G Industries, Inc., supra, 113 Conn.App. 8. Therefore, D T’s motion for summary judgment is denied.
2.
On June 9, 2009, Vigilant moved for summary judgment on the grounds that there is no genuine issue of material fact that D T breached its contract, the engagement letter with Met Life, under which it agreed to perform specific auditing duties for fiscal year 2000 Vigilant argues first that D T failed to obtain a sufficient understanding of Conning’s internal control structure and to both document and report deficiencies concerning new vendors, wire transfers, check signing, and journal entries — all problems that allowed Grous to perpetrate his fraud schemes. Next, Vigilant argues that D T failed to communicate deficiencies which it had found to Conning’s senior management rather than just to Grous. Third, Vigilant argues that D T failed to obtain sufficient evidential matter to uncover the journal entries and the miscellaneous payable accounts and finally, fourth, that D T failed to preserve its work papers. Vigilant maintains that D T agreed to perform its audit in compliance with GAAS and that, had it not failed, it would have uncovered Grous’ embezzlement scheme.[8] It bases its motion primarily on the opinion of its expert, Kern, and D T’s failure to retain its work papers, which it argues, precludes D T from offering any evidence to controvert Kern.
In response, D T argues that it properly performed its audit under GAAS and was not retained to provide assurances that the financial statements were free from misstatements, to detect fraud, to provide assurances on internal control or to identify “reportable conditions.”[9]
Moreover, D T stresses that its own expert, Barrett, as well as Wayne Hauge, retired D T partner in charge of the Conning audit, clearly dispute Kern’s allegations.
It is clear from a review of the two experts’ reports and affidavits CT Page 17267 that Vigilant has not met its burden of proving the absence of any genuine issues of material fact.[10] Hence, summary judgment must be denied. See American Progressive Life Health Ins. Co. v. Better Benefits, LLC, supra, 292 Conn. 119.
B.
The Vigilant and PwC motions for partial summary judgment are somewhat different than the D T motions. Vigilant seeks partial summary judgment on PwC’s fifth special defense (contributory negligence), sixth special defense (third party fraud) and its indemnification counterclaim. Vigilant also moves, in the alternative, for a motion in limine to preclude any evidence concerning the above issues.
PwC moves for summary judgment on counts two (breach of contract based on subrogation) and four (breach of contract based on assignment) for the same reasons as those argued by D T. Specifically, PwC argues that the breach of contract counts are actually negligence claims and are barred by the three-year statute of limitations, § 52-577. Additionally, PwC moves for partial summary judgment on counts one (negligence based on equitable subrogation) and three (negligence based on assignment) concerning PwC’s 2001 Conning audit and the 2002 audit of its subsidiary Conning Asset Management Co. (CAM) on the grounds that they are also barred by § 52-577 as they were brought after the expiration of the statute of limitations. Finally, PwC seeks summary judgment on the claims of the 2004 audits of CAM and a second subsidiary, Conning Research Consulting, Inc. (CRCI), arguing that Vigilant cannot prove damages.
I.
PwC performed audits for Conning for the years 2001 through 2004, pursuant to yearly engagement letters and gave unqualified audit opinions for each year. Similar to D T, PwC’s audits were to be conducted pursuant to GAAS. Vigilant claims that PwC’s audit failed to conform to GAAS thereby resulting in a failure to detect Grous’ actions and causing losses to Conning of approximately $3.8 million and consequential. Losses of $440,000. Conning engaged PwC in 2005 to investigate whether its prior audits needed to be restated in light of the losses. It reported to the Conning board on March 31, 2006 that there were material weaknesses in the internal controls but did not believe a material adjustment was necessary. Vigilant alleges that PwC failed to comply with GAAS and the terms of its engagement letters in three areas: it failed to obtain and document a sufficient understanding of internal controls, it failed to obtain sufficient evidential matter and failed to review work performed by assistants.[11] CT Page 17268
Vigilant seeks summary judgment on PwC’s contributory negligence special defense — that Conning failed to follow its own internal controls — as to the contract counts primarily because the defense does not apply to a breach of contract claim. See Durniak v. August Winter Sons, Inc., 222 Conn. 775, 782, 610 A.2d 1277 (1992) (“[b]y its own terms, the comparative negligence statute applies only to causes of action based on negligence” [internal quotation marks omitted]). PwC apparently agrees as it states in its memorandum of law in opposition to Vigilant’s motion for summary judgment that “[t]o the extent those claims are permitted to remain in the case, the defense of contributory negligence may not apply.”
This does not end the discussion, however, as Vigilant has also brought counts in negligence. Moreover, the substantive issue also exists in the context of PWC’s indemnification counterclaim which states that Conning releases and indemnifies PwC from all “claims attributable to any knowing misrepresentation by management.” Vigilant seeks summary judgment based on its argument that Grous’ misrepresentations cannot be attributed to Conning as a matter of law pursuant to its interpretation of the audit interference rule, which, as articulated in National Surety Corp. v. Lybrand, 256 App.Div. 226, 9 N.Y.S.2d 554 (1939), and adopted in Curtis Packaging Corp. v. KPMG, LLP, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 99 0156558 (July 31, 2002, McWeeny, J.), would preclude PwC from asserting the claim (or special defense) of contributory negligence.[12] In National Surety, the court found that accountants should not be able to escape liability, when negligent, just because their client was also negligent. National Surety Corp. v. Lybrand, supra, 256 App. Div. 235-36. The court held that the defense should only be allowed “when [the client] has contributed to the accountant’s failure to perform his contract and report the truth.” Id., 236.
In Curtis Packaging, the court was faced with a somewhat similar factual situation as in the present case. See Curtis Packaging Corp. v. KPMG, LLP, supra, Superior Court, Docket No. X06 CV 99 0156558. The court found that “the majority rule is that the contributory negligence of the client is a defense only where the client’s negligence prevented the accountant from performing his duties.” Id. Additionally, it held that contributory negligence was not a valid defense to a contract claim and that Connecticut’s comparative negligence statute, General Statutes §52-572h, [13] did not apply. Id.
This court agrees that the defense of contributory negligence is not available to PwC as to the contract claims of counts two and four. CT Page 17269 Notwithstanding whether the audit interference rule really is the majority rule, [14] this court disagrees that comparative negligence does not apply in cases of pure commercial losses. In Williams Ford v. Hartford Courant Co., 232 Conn. 559, 586, 657 A.2d 212 (1995), the court concluded that “as a matter of common law . . . the policy of the comparative negligence statute, § 52-572h, applies to negligence actions where only commercial losses are sustained.” Recently, in Kramer v. Petisi, 285 Conn. 674, 682, 940 A.2d 800 (2008), while discussin Williams Ford, the court rejected the argument that “the defense of comparative negligence in an action for negligent misrepresentation” should be precluded. The court added, “Although we agreed with the Courant that our comparative negligence statute, General Statutes §52-572h(b), does not apply to purely commercial losses . . . we nevertheless concluded that the policy underlying § 52-572h(b) ought to apply to negligent misrepresentation as a matter of common law even when only commercial losses are sustained . . . We therefore held that contributory negligence is not an absolute bar to recovery for plaintiffs seeking damages for such losses resulting-from a negligent misrepresentation and that principles of comparative fault are applicable in such cases.” (Citations omitted; internal quotation marks omitted.)Id., 682.
Vigilant argues that a distinction must be made between the facts o Williams Ford, which involved a car dealer and a newspaper, and the facts in the present case involving the actions of a professional and its client. However, in Somma v. Gracey, 15 Conn.App. 371, 378, 544 A.2d 668 (1988), the court stated that “[w]e see no basis for distinguishing between actions for legal malpractice and other claims sounding in negligence.” In light of these decisions, this court finds that comparative negligence principles apply to this case and the audit interference rule is not afforded any special significance.[15]
Moreover, the parties certainly differ as to the evidence and meaning of the acts of Conning’s employees in regard to this special defense. Vigilant argues in its reply brief, dated July 1, 2009, that “the chimerical `evidence’ of interference PwC cites, regarding Grous’ conduct, and accounting personnel working under him, neither exists, constitutes interference, nor prevented its audits in the least.” PwC, on the other hand, points out that Grous testified that, if he had followed the internal controls that Conning had adopted, the embezzlement would have been “difficult, if not impossible” to carry out. Additionally, Conning’s accounting manager, Deborah Smith, admitted during her deposition that she made entries on the general ledger that she knew were incorrect. Furthermore, Conning wrote management representation letters to PwC which, in relevant part, represented, “We have no knowledge of any CT Page 17270 fraud or suspected fraud . . . involving: a. Management, b. Employees who have significant roles in internal control . . .” Moreover, § 110.03 of GAAS requires that “[m]anagement is responsible for adopting sound accounting policies and for establishing and maintaining internal control . . .” Accordingly, as Vigilant cannot prove the absence of any genuine issues of material fact, its motions for summary judgment as to the special defense and the indemnification counterclaim are denied.
2.
Vigilant seeks summary judgment as to PwC’s sixth special defense, third party fraud. As noted in PwC’s memorandum in opposition to Vigilant’s partial motion for summary judgment, dated June 23, 2009, footnote 21, it will be withdrawing this special defense and this court need not further address the issue.
3.
PwC has moved for summary judgment on counts two and four alleging breach of contract for the same reasons as those argued by D T; namely that they are really negligence claims no matter how packaged and labeled by Vigilant. For the reasons previously discussed, this court denies the motion for summary judgment for these two counts.
4.
PwC also moves for partial summary judgment on counts one and three concerning PwC’s 2001 Conning audit and the 2002 CAM audit delivered on April 23, 2004 because, as negligence counts, they are barred by the three-year statute of limitations, § 52-577. First, as to the 2001 audit, this court finds no factual issue as the statute had long passed prior to this suit. As to the 2002 CAM audit, Vigilant argues that the suit is timely because PwC was still working on the file in June 2004 while PwC presents conflicting evidence that it delivered the audit on April 23, 2004. Case law certainly supports PwC’s argument that the delivery date to the client is the operative date; see, for example, Auto Services Co., Inc. v. KPMG, LLP, 537 F.3d 853, 858 (8th Cir. 2008) Arnold v. KPMG, LLP, 543 F.Sup.2d 230, 236 (S.D.N.Y. 2008); yet there is certainly a factual dispute as to whether PwC was still working on the file in June 2004. PwC’s motion for summary judgment in connection with the 2002 CAM audit is therefore denied.[16]
5.
Finally, PwC moves for summary judgment on Vigilant’s claims concerning CT Page 17271 the 2004 CAM and CRCI audits on the ground that they must fail for lack of damages.[17] The audits were completed in February 2005 for CRCI and June 2005 for CAM; Grous left his employment in March 2005 and his embezzlement was discovered in July 2005. Apparently no money was stolen in 2005. Vigilant maintains that there is a disputed material fact since “if PWC had discovered the fraud during the 2004 audits in early 2005; approximately 6 months before discovery in July 2005, then additional assets may have been recovered from Grous, thereby mitigating Conning’s damages.”[18] Likewise, Vigilant states “if PWC had detected the fraud during the 2004 audits, then Conning’s consequential damages may have been mitigated or avoided, including the costly forensic investigation.” (June 23, 2009 consolidated opposition to defendants’ motions for summary judgment and partial summary judgment). While these might be considered speculative, this court will not deprive Vigilant the opportunity to prove possible consequential damages. Accordingly, PwC’s motion is denied.
6.
Vigilant also seeks, in the alternative, by way of a motion in limine, an order that this court preclude PwC from arguing or introducing evidence concerning the issues of contributory negligence or indemnity. In light of the above discussion, this request is denied.
IV.
In conclusion, all motions for summary judgment, with the exception of PwC’s motion for partial summary judgment as to counts one and three related to the 2001 Conning audit, are denied. Vigilant’s negligence claims regarding the 2001 Conning audit are barred by the statue of limitations.
CT Page 17272
is the relevant statute of limitations. Pursuant to the parties’ tolling agreement, Vigilant brought its complaint within six years of the issuance of D Ts audit opinion letters. Therefore, the court finds that Vigilant’s suit is not barred by the statute of limitations.” Id.
“(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section . . .”
CT Page 17276