Opinion
LLICV156012947
06-28-2017
Gerard Cloutier v. Nathall 28 PR, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Honorable John W. Pickard, Judge Trial Referee.
This case involves a construction accident. The plaintiff, Gerard Cloutier, alleges that his foot became caught in defective carpeting on a job-site stairway causing him to fall and receive severe injuries. The plaintiff sued four different defendants, all of whom are alleged to have owned and/or possessed the job-site and to have been negligent in maintaining the stairway. One of these defendants, RDS Construction, LLC (" RDS"), was the general contractor. RDS had awarded a plumbing subcontract to the intervening plaintiff, Main Enterprises (" Main"). At the time of his injury, the plaintiff was working for Main and was paid workers' compensation benefits on account of his injuries. Main intervened to recover the benefits it paid to the plaintiff.
RDS and the other defendants have filed a two-count counterclaim against Main sounding in contractual indemnification and breach of contract. Main has filed this motion for summary judgment (#136) on both theories of liability. RDS has filed an objection. The matter was argued at the short calendar on May 24, 2017.
All the defendants will be referred to as RDS in this opinion.
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
As to the first count for contractual indemnification, the subcontract contains an indemnification section which specifically requires that Main " indemnify and hold harmless [RDS] from and against any claims, damages, losses and expenses, including but not limited to attorneys fees, arising out of or resulting from performance of the Work . . . but only to the extent caused by the negligent acts or omissions of the Subcontractor [Main] . . ." The " Work" is defined in another section which provides that Main " shall perform all the work required by and reasonably inferable from, the Contract Documents, necessary to complete the following: . . . Labor and materials to provide plumbing work." The section also provides that " The Subcontractor's Work shall include all labor, materials, equipment, services, and other items required to complete the Work . . ." Another section provides that " The subcontractor [Main] shall take all reasonable precautions with respect to its Work and shall comply with all safety measures and requirements established by [RDS]."
In the first count of the counterclaim RDS alleges in paragraphs 11 and 12 that: " 11. The plaintiff's claims herein against the defendants arise out of the intervening plaintiff Main Enterprises' performance of its obligations under said Subcontract Agreement since the plaintiff was at the premises for the purpose of performing the work required of Main Enterprises under the said Subcontract Agreement and the plaintiff was in fact engaged in activities and tasks on behalf of Main Enterprises at the time of the alleges incident. 12. In that the plaintiff's claims arise out of or are alleged to arise out of Main Enterprises' performance of its obligations under the Subcontractor's Agreement, Main Enterprises is obligated to defend and indemnify the defendants herein and to hold them harmless from and against all of the plaintiff's claims in this matter."
In support of its motion for summary judgment Main argues that the plain meaning of the subcontract provisions quoted above is that indemnification is not implicated because the plaintiff's injury does not arise out of or result from Main's providing plumbing services on the project. Main argues that its " Work" under the subcontract must be limited to plumbing work, and cannot be extended to include the safety of stairs at the jobsite.
In opposing the motion for summary judgment as to the first count, RDS argues for a broad reading of the word " Work" under the subcontract. It points to deposition testimony of the plaintiff in which he described that he performed plumbing work on the penthouse located on the roof of the building and that the materials were kept on the first floor by his employer, Main. The plaintiff testified that, on a normal day, he would need to go down to the first floor on four or five occasions to retrieve materials in order to complete his assigned task. This required him to walk over the defective carpeting on the stairway. RDS argues that Main's contractual requirement to " take all reasonable precautions with respect to its Work and shall comply with all safety measures and requirements established by [RDS]" should be interpreted to include guaranteeing a safe work environment for its employees, including the route the plaintiff took to gather materials and transport them to the area where the plumbing work was being performed on the day of the his injury. RDS argues that whether Main sufficiently complied with the safety provisions in the subcontract is a question of fact for the jury to decide.
The court agrees with RDS that there is a genuine issue of material fact as to whether the plaintiff's injury arose out of or resulted from Main's plumbing subcontract. Although Main's " Work" under the subcontract consisted of " labor and materials to provide plumbing work" there is a genuine issue as to whether the labor included the task of traveling up and down stairs several times per day to retrieve the materials, thereby exposing the plaintiff to the hazard of the defective carpeting. Main was responsible for taking all reasonable precautions with respect to its work and for taking all safety measures and requirements established by RDS. There is no information before the court regarding this issue and it remains an issue of fact for the trier.
Main's second argument as to the first count is that RDS's indemnification claim is barred by the Workers' Compensation Act and General Statutes § 52-572k. As to the Workers' Compensation Act, Main appears to concede that the exclusive remedy provision of the Act will not prevent the RDS claim because there is an independent contractual relationship between it and Main. See, Ferryman v. City of Groton, 212 Conn. 138, 145-45, 561 A.2d 432 (1989). Main's argument regarding § 52-572k is that it prevents RDS from relying on the indemnification clause in this context. Main relies upon a Superior Court case from 2006 decided by Judge Beach which involved a very similar indemnification clause to that contained in the Main subcontract. Patt v. Metropolitan District Commission, Superior Court, judicial district of Middlesex, Docket No. CV-04-4003558 (December 20, 2006) (42 Conn.L.Rptr. 522, ). Applying the reasoning used by Judge Beach, the indemnification clause will be triggered only if RDS's negligence is found to be a substantial factor in causing the plaintiff's injury. If Main's negligence is also a substantial factor in causing the plaintiff's injury, and if Main is required to indemnify RDS, Main will necessarily be holding RDS harmless for its own negligence. RDS attempts to distinguish this case from Patt by arguing that the indemnification clause here is " a permissive allocation of risk provision." The court is unconvinced by this argument and does not believe that Patt can be distinguished. The court believes that Judge Beach's reasoning is sound and that the result should be followed by this court. For these reasons, the motion for summary judgment will be granted as to the first count of the counterclaim.
General Statutes Sec. 31-275 et seq.
With respect to certain construction contracts General Statutes Sec. 52-572k provides, in part: " any covenant, promise, agreement or understanding entered into . . . that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee's agents and employees, is against public policy and void."
The second count of the counterclaim is based on breach of contract for Main's failure to abide by a provision of the subcontract that it name RDS and the other defendants as additional insureds on its comprehensive general liability insurance. RDS claims damages including attorneys fees pursuant to another provision of the subcontract. Main moves for summary judgment on this claim on the ground that RDS has waived its right to asset a breach of contract claim resulting from Main's failure to obtain proper insurance. Further, Main argues that RDS has not alleged, and cannot prove, that it suffered any damages as a result of Main's alleged breach of contract.
Article 13 of the subcontract provides, in relevant part, that the RDS and the other defendants " shall be named as additional insureds on all coverages except Workers' Compensation."
Article 14 of the subcontract provides, in relevant part, that Main is required " to indemnify and hold harmless [RDS and the other defendants] . . . from and against claims, damages, losses and expenses, including but not limited to attorneys fees arising out of or resulting from performance of the Work . . ."
With respect to waiver, Main claims that RDS waived the right to assert the breach of contract claim by permitting Main to commence work on the project without full compliance with the subcontract. The court is without any facts to evaluate this claim. Main failed to produce any evidence in support of the motion for summary judgment. The court is left to speculate about whether Main actually named RDS as an insured; and if it did not, whether RDS knew or should have known about this failure. It is Main's obligation to demonstrate that there is no issue of material fact that RDS intended to waive the insurance requirement or that RDS's conduct misled it. See an interesting discussion of this issue in Mark v. Deere & Company, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-96-0563160, (August 18, 1999) (1999 WL 669818) decided by Judge Peck.
For this reason summary judgment is denied as to the second count.