Opinion
No. X04 CV 02 0103472 S
November 15, 2005
MEMORANDUM OF DECISION
The individual defendants, Barrie Wetstone and Sharon Kowal-Freilich, have moved for summary judgment on the cross claim brought against them by the defendant Milliman USA, Inc. They claim, essentially, that a common-law indemnification claim may not successfully be brought against a person from whom the plaintiff cannot recover because of the statute of limitations.
The underlying context, somewhat simplified for present purposes and as gleaned from the pleadings and undisputed facts, is an effort by the plaintiff Connecticut Education Association ("CEA") to reduce pension costs. In the mid-1990s, the CEA inquired of its attorneys, the defendants Sorokin, Gross Hyde P.C. ("Sorokin"), and the defendant Milliman, apparently its benefits administrator or advisor, whether steps to reduce or eliminate cost-of-living adjustments were permissible under applicable law. Sorokin and/or Milliman advised that such adjustments were permissible as to lump sum distributions that had not vested. The plan was implemented. A short time later, a second law firm advised that the plan may not be permissible. The plaintiff then revised its plan and allegedly incurred damages as a result.
The plaintiff brought a complaint against Milliman and Sorokin. The complaint sounded in contract and in tort. As a result of a ruling by Judge Quinn on motions for summary judgment, as well as voluntary action on the part of the parties, an amended complaint was filed on March 21, 2005. The amended complaint alleged two counts against Milliman, one in negligence and one in tort. The third count was brought against Sorokin for breach of contract. The fourth and fifth were brought against the individual defendants, lawyers with the Sorokin firm who advised the CEA. The fourth sounded in breach of contract and the fifth alleged that the individuals were liable because of a claimed misrepresentation as to the amount of malpractice insurance available. Milliman filed an answer, special defenses and cross claim on April 6, 2005. The instant motion CT Page 14064-kg concerns the cross claim against the individual defendants, which claims that they are liable to Milliman, if Milliman is liable to the plaintiff, because of their active negligence.
The CEA soon withdrew the fourth count against the individual defendants, the breach of contract claim, because of statute of limitations difficulties. The individual defendants then filed the motion for summary judgment currently under consideration. They argue that because the individual defendants cannot be liable to the plaintiff, because of the bar to the action imposed by the application of the statute of limitations, then Milliman is barred from proceeding on its common-law indemnification claim against them.
Milliman seizes on language from Crotta v. Home Depot, Inc., 249 Conn. 634 (1999), to the effect that "indemnity is not allowed against one who has a defense, such as family immunity against the original plaintiff." Id., 642. Crotta, however, raises a set of concerns entirely different from those here. In Crotta, a father took a young son shopping at Home Depot. He placed the son in a shopping cart manufactured by one defendant and supplied by the defendant Home Depot. While the father's attention was momentarily elsewhere, the son fell out of the cart and sustained injury. The boy's mother, on behalf of the boy, sued the manufacturer in product liability and Home Depot in negligence. The defendants sought to bring the father into the action on various theories, one of which was common law indemnification on the active-passive theory. See, e.g., Kyrtatas v. Stop Shop, Inc., 205 Conn. 694 (1988). The federal court in which the case had been brought certified to our Supreme Court questions including whether the doctrine of parental immunity barred bringing a common-law indemnification action against the boy's father.
The Supreme Court held that the indemnification action was barred. Crotta, supra, 641-45. Affirming the policy of parental immunity, the court reasoned that common-law indemnification served to impose liability against only another liable tortfeasor. Because public policy barred direct liability because of the relationship of the parties, public policy also barred the accomplishment of the same result indirectly. The point for our purposes is that public policy barred an indirect recovery by a child against his or her parent.
The language from Crotta which is cited by the individuals is most illuminating. It is ". . . indemnity is not allowed against one who has a defense, such as family immunity against the original plaintiff." Id., 642. The individuals italicized the language italicized here, but did not emphasize the portion I have underlined.
The circumstances here, of course, are different. No public policy prevents a business entity from recovering from an attorney. Though public policy is indeed reflected in statutes of limitations and repose, the applicable statute of limitations governing the indemnification claim is General Statutes § 52-598a, pursuant to which the statute does not begin to run until the action against the putative indemnitee has been CT Page 14064-kh decided. Thus no public policy is contravened by the maintenance of an indemnification action. No other ground has been briefed. The motion for summary judgment is, then, denied.