Opinion
CV156008167S
12-19-2017
Christina JACKSON v. COSTCO WHOLESALE CORP. et al.
UNPUBLISHED OPINION
OPINION
Kathleen E. McNamara, Judge
FACTS
This action arises out of an alleged slip and fall in a Costco parking lot. The plaintiff, Christina Jackson, initiated a premises liability action against the defendant, Costco Wholesale Corp. (Costco), alleging that she fell over a misaligned and improperly painted curb bumper in a handicapped parking space at Costco’s Brookfield store (premises). She alleged that Costco had negligently created a dangerous condition on its premises by failing to place a fully painted curb stop in the parking lot and by allowing an uneven, misaligned, and poorly marked curb stop to exist on the premises. On March 7, 2016, Costco filed a third-party complaint against the third-party defendant, Cherry Hill Construction, Inc. (Cherry Hill), which is the subject of this motion for summary judgment.
For clarity, the court provides the following procedural background. Jackson had initially filed a four-count complaint alleging negligence against each of five defendants: Costco; Gary Michael; Dennis Michael; BL Companies, Inc.; and Graham, LTD. Jackson later amended her complaint to add defendant Cherry Hill Construction, Inc. BL Companies, Inc. and Graham, LTD are not parties to this motion for summary judgment, and Gary and Dennis Michael were withdrawn from the action on June 15, 2016.
Count one of Costco’s third-party complaint sounds in contractual indemnification and alleges the following facts. Costco hired Graham, LTD (Graham) to install curb bumpers at the premises. Graham, as the general contractor, entered into a subcontract with Cherry Hill to install the curb bumpers. Pursuant to this subcontract, Cherry Hill was required to name Costco as an additional insured; therefore, Costco was an intended third-party beneficiary to the subcontract, and Cherry Hill had an obligation to provide Costco with a defense and indemnification for Jackson’s underlying claims. To date, Cherry Hill has refused to indemnify either Graham or Costco, thereby neglecting its contractual obligations. Count two of the complaint, which sounds in breach of contract, incorporates the aforementioned allegations and specifically alleges that, because Cherry Hill has failed to honor its contractual obligation to indemnify Costco and has failed to provide Costco with a defense and indemnification under its liability policy, Cherry Hill has breached its contract with Graham, to which Costco was an intended third-party beneficiary. Finally, in count three, which sounds in common-law indemnification, Costco alleges that Cherry Hill had complete and exclusive control over the curb bumpers; that the plaintiff’s injuries were proximately caused by the primary, active negligence of Cherry Hill; that Costco had no reason to know of or anticipate Cherry Hill’s negligence; and that it reasonably relied on Cherry Hill not to be negligent. Costco alleges that it was not negligent, did not owe any duty to Jackson, and is entitled to indemnification from Cherry Hill for any amounts that it becomes obligated to pay. Costco attaches two exhibits to its third-party complaint: the subcontract agreement between Cherry Hill and Graham, including Attachment A titled Terms and Conditions and the Subcontractor Information Sheet (Exhibit A), and a letter from Graham’s counsel to Cherry Hill, which formally demands defense, indemnification, and payment for costs (Exhibit B). On April 26, 2017, Cherry Hill moved for summary judgment as to the entire third-party complaint, on the grounds that there are no genuine issues of material fact that the plain language in the indemnification provision of the subcontract does not require Cherry Hill to defend or indemnify Costco; that Costco’s insurance-related claim is not sufficiently related to the plaintiff’s underlying claims and, therefore, violates Connecticut’s impleader statute and rule; and that Cherry Hill was not negligent and did not have exclusive control over the situation that allegedly caused the plaintiff’s injuries. In support of its motion, Cherry Hill submitted a memorandum of law and exhibits in support. , Costco responded by filing an objection on June 12, 2017, with supporting exhibits, arguing that there are genuine issues of material fact. Cherry Hill filed a reply brief on July 17, 2017. Oral argument was heard on the motion at short calendar on September 5, 2017. Cherry Hill subsequently filed an answer, together with special defenses and counterclaims, on October 11, 2017.
Attached to Cherry Hill’s motion for summary judgment are copies of the following documents: Exhibit A to the third-party complaint (which includes the subcontract agreement between Cherry Hill and Graham, and the subcontract agreement’s terms and conditions, which collectively will be referenced as Exhibit A for consistency); Exhibit B to the third-party complaint (Graham’s demand letter to Cherry Hill, which will be referenced as Exhibit B for consistency); the acknowledgment of completion signed by Graham and Costco (Exhibit B2); excerpts from the deposition of George Runne, Costco’s project manager (Exhibit C); and a punch list prepared by Brandon Brezeale from BL Companies, Inc. (Exhibit D.)
" [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citations omitted; internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 714-15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012). In the present matter, Runne’s deposition is without certification; accordingly, the evidence may lack " the necessary indicia of reliability required for a summary judgment determination." Torrenti v. Kancir, Superior Court, judicial district of New Haven, Docket No. CV-07-5012366-S (December 19, 2007, Holden, J.). Costco, however, has not objected to any evidence presented; thus " any objection is deemed waived and all documents are admissible."
Attached to Costco’s objection are copies of the following documents: the subcontract agreement between Cherry Hill and Graham, including the subcontract agreement’s terms and conditions (the same documents submitted as Exhibit A to the third-party complaint, and which collectively will be referenced as Exhibit A for consistency); Costco’s verified responses to interrogatories and requests for production (Exhibit B); Section 02762, traffic control devices (Exhibit C); excerpts from Jackson’s deposition (Exhibit D); photographs (Exhibit E); excerpts from Runne’s deposition (Exhibit F); photographs (Exhibit G); and the acknowledgment of completion signed by Graham and Costco (Exhibit H). As previously noted in footnote three, before a document may be considered, the court must determine if the evidence is admissible. Certain exhibits attached to Costco’s objection are without certification or authentication; however, Cherry Hill has not objected to any evidence presented. Accordingly, those exhibits not objected to are admissible.
In its answer to count one, Cherry Hill admits that it entered into a subcontract with Graham and that such contract required Cherry Hill to list Costco as an additional insured, but denies that Costco is an intended third-party beneficiary to the subcontract; that Jackson’s allegations against Costco fall within Cherry Hill’s contractual obligations; that Cherry Hill has an obligation to provide Costco with a defense and indemnification; or that Cherry Hill has neglected and/or refused to honor its contractual obligations to Costco. As to count two, Cherry Hill re-alleges and incorporates its answers to paragraphs 1 through 14 of count one, and expressly denies any duty to defend or indemnify Costco. As to count three, Cherry Hill re-alleges and incorporates its answers to paragraphs 1 through 9 of count one, and denies that it had exclusive control over the curb stops, that it was actively or primarily negligent, or that it caused Jackson’s alleged injuries. Cherry Hill pleads four special defenses, arguing that Costco’s claims are barred (1) by operation of General Statutes § 52-572k; (2) because the contractual provisions on which it relies are void pursuant to public policy; (3) pursuant to the doctrine of waiver; and (4) pursuant to the doctrine of estoppel. Cherry Hill’s counterclaim sounds in common-law indemnification, and seeks indemnification from Costco for any amounts Cherry Hill becomes obligated to pay as a result of Jackson’s claims against Cherry Hill.
DISCUSSION
" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " 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." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). " [S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 535. " 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." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, supra, 573. " [I]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " If a defendant’s well supported motion for summary judgment shows that there is no genuine factual dispute as to multiple essential elements of a plaintiff’s cause of action, such that none of them reasonably could be resolved in the plaintiff’s favor at trial, the viability of that plaintiff’s case is not improved if he only responds with sufficient counterevidence to call some of those essential elements back into question. Put differently, by raising a genuine issue of fact as to only some of the essential elements under attack, the plaintiff has not altered the potential outcome of his case." (Emphasis in original.) Stuart v. Freiberg, 316 Conn. 809, 823-24, 116 A.3d 1195 (2015).
I.
Contractual Indemnification
Cherry Hill argues that there is no genuine issue of material fact that Cherry Hill does not owe Costco a duty to defend or indemnify. In particular, Cherry Hill argues that the plain language of the subcontract requires only that Costco be named as an additional insured, not indemnified. Moreover, Cherry Hill argues that it does not owe Costco a duty to defend or indemnify because Cherry Hill maintains that it was not negligent. Costco counters that, because Cherry Hill was required to name Costco as an additional insured, Costco is an intended third-party beneficiary to the contract. Costco further argues that, by virtue of being an additional insured, Cherry Hill was required to defend and indemnify Costco in the underlying action.
In support of their respective arguments, both parties rely on the same two provisions in the contract, but offer differing interpretations. Cherry Hill proffers a plain language reading of the contract: although the insurance provision of the subcontract (Item 18 of Ex. A) states that Costco will be named as an additional insured, the indemnification provision (Item 29 of Ex. A) does not mention Costco specifically or reference the owner of the project, and only states that Cherry Hill agrees to defend and indemnify Graham as the contractor. In response, Costco highlights the language in Item 18 specifying that such " insurance shall include: contractual liability coverage applicable to the indemnity provisions of this Subcontract." Costco reads this language as Cherry Hill’s intent to indemnify Costco as well.
In Connecticut, the rights of an additional insured appear to be distinct from the rights of an indemnitee. Black’s Law Dictionary (7th Ed. 1999) defines " additional insured" as " [a] person who is covered by an insurance policy but who is not the primary insured." Individual insurance policies further define the term " additional insured" and set the parameters for coverage. See e.g., Misiti, L.LC v. Travelers Property Casualty Co. of America, 308 Conn. 146, 150, 61 A.3d 485 (2013) (commercial property owner named " as an additional insured, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the tenant]" [internal quotation marks omitted]). Although a separate contract may require one party to obtain insurance and list another party as an additional insured, the rights of the additional insured are still subject to the insurance policy. See e.g. Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 765-67, 67 A.3d 961 (2013) (contract between the parties contained provisions governing insurance coverage, but insurance policy defined additional insured as " an Insured ... only with respect to liability arising out of [the policy holder’s] work for the Additional Insured" [internal quotation marks omitted]); Royal Indemnity Co. v. Terra Firma, Inc., 287 Conn. 183, 186, 947 A.2d 913 (2008) (subcontract required one defendant to name second defendant as an additional insured, but insurance policy limited " an insured as any person named as an insured under the policies, but only with respect to liability arising out of ... [the policy holder’s] work" [internal quotation marks omitted]).
It is worth noting that other jurisdictions explicitly distinguish indemnity from insurance. " [A] promise to purchase insurance under which another is the named insured is not equivalent to a promise to indemnify the promisee. Where there is a promise to obtain insurance, the promisor agrees to procure insurance but does not agree to bear responsibility in the event of injury or loss." (Footnote omitted.) 42 C.J.S. 115, Indemnity § 3 (2017).
By contrast, indemnity is " [t]he right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty." (Emphasis added.) Black’s Law Dictionary, supra . " [T]he concept of indemnity usually involves an indemnitor, A, and an indemnitee, B, who enter into a contract whereby A agrees to indemnify B for any money B becomes legally obligated to pay to a third party." (Emphasis in original.) Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 149, 810 A.2d 259 (2002). " [I]n an action for indemnity ... one tortfeasor seeks to impose total liability upon another [tortfeasor] ... [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest ..." (Internal quotation marks omitted.) Smith v. New Haven, 258 Conn. 56, 67 n.7, 779 A.2d 104 (2001). " Allegations of contractual indemnification must be supported by the terms of the contract or the contract itself." Fisher v. Countrywide Home Loans, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-4008690-S (January 5, 2011, Roche, J.).
Connecticut courts have emphasized the difference between an additional insured and an indemnitee in the context of General Statutes § 52-572k. See Royal Indemnity Co. v. Terra Firma, Inc., 50 Conn.Supp. 563, 575-76, 948 A.2d 1101 (2006), aff’d, 287 Conn. 183, 947 A.2d 913 (2008). In Royal Indemnity Co., the trial court granted summary judgment in favor of the defendant general contractor because, although the additional insured clause did require the subcontractor to procure insurance protecting the general contractor from liability; id., 568; it did not require the subcontractor itself to indemnify the general contractor. See id., 575-76. The court noted that § 52-572k " prohibit[s] clauses purporting to require subcontractors to indemnify and hold harmless general contractors for the general contractor’s negligence. The statute says nothing about requiring general contractors to be included as additional insureds ..." Id., 575. " Presumably, the cost of additional insurance is predictable and simply increases in some increment the amount of a subcontractor’s bid; the proscribed conduct of requiring indemnification and hold harmless agreements, on the other hand, could have catastrophic and unpredictable consequences to a subcontractor. [There is no] violation of public policy in the practice of spreading risk to an insurer by requiring the inclusion of a general contractor as an additional insured ..." (Emphasis added.) Id., 576; see also Best Friends Pet Care, Inc. v. Design Learned, Inc., 77 Conn.App. 167, 175, 823 A.2d 329 (2003) (agreement to " [insure] the persons and property at the [construction] site does not fit the description of an agreement to hold harmless or to indemnify").
General Statutes § 52-572k provides in relevant part: " Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, 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 or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract ..."
This reasoning is consistent with Superior Court decisions noting that an additional insured may have rights against the insurer pursuant to the governing insurance policy, but makes no mention of the additional insured’s rights against the policy holder. See O & G Industries, Inc. v. Ace American Ins. Co., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-UWY-CV-136021704-S (April 9, 2014, Dooley, J.) (58 Conn.L.Rptr. 15) (" an ‘additional insured’ has the right to assert claims under an insurance contract"); National Union Fire Ins. Co. v. Zurich American Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-04-0491301-S (December 1, 2005, Lopez, J.) (40 Conn.L.Rptr. 459) (underlying complaint fell within insurance policy’s " additional insured endorsement, " so defendant insurance company owed duty to defend additional insured). Accordingly, Cherry Hill is not required to indemnify Costco by mere virtue of naming Costco as an additional insured on its liability insurance policy.
Next, the court considers Costco’s counterargument that it is entitled to indemnification on the basis of the language in the subcontract agreement alluding to an intent to indemnify Costco. Costco interprets certain language in the subcontract agreement, and specifically in the terms and conditions portion, as evidence of Cherry Hill’s intent to indemnify Costco; namely, that the owner shall be named as an additional insured, and that such " insurance shall include: contractual liability coverage applicable to the indemnity provisions of this Subcontract." See Cherry Hill’s Ex. A, Item 18. Costco’s reading, however, is not supported by the plain language of the subcontract agreement. " Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact ... [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Kline v. Kline, 101 Conn.App. 402, 407-08, 922 A.2d 261, cert. denied, 284 Conn. 901, 931 A.2d 263 (2007). " A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings." Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959). Instead, " [w]here the language is unambiguous, [the court] must give the contract effect according to its terms." Valente v. Securitas Security Services, USA, Inc., 152 Conn.App. 196, 209, 96 A.3d 1275 (2014). " Likewise, an indemnity agreement is to be given effect according to its terms." Fiorello v. Universal Builders Supply, Inc., Superior Court, judicial district of New Haven, Docket No. CV-95-0376404-S (November 25, 1997, Zoarski, J.T.R.) (21 Conn.L.Rptr. 102).
Page one of the subcontract agreement states that this agreement was entered into by Graham as the contractor and Cherry Hill as the subcontractor, and that the subcontractor agrees to furnish work for Costco as the owner. See Cherry Hill’s Ex. A. Paragraph 22 on page 3 of the subcontract agreement states that the " [i]nsurance requirements as listed in Item 18 of the Terms and Conditions of the Subcontract are modified as follows: Subcontractor shall name Graham Contracting Ltd. [and] Costco Wholesale Corporation ... as additional insureds ..." See Cherry Hill’s Ex. A. The plain language of Item 18 in the terms and conditions of the subcontract agreement states that Cherry Hill was required to obtain public liability and property damage insurance, and that such insurance must include, inter alia, contractual liability coverage applicable to the indemnity provisions of the subcontract. See Cherry Hill’s Ex. A, Item 18. Although Item 18 states that Cherry Hill must name " the Contractor, the Owner and those identified in the Main Contract as additional insureds, " the indemnity provision makes no mention of Costco or " the Owner"; rather, the indemnity provision clearly states that " Subcontractor agrees to defend, indemnify and hold Contractor harmless ..." (Emphasis added.) Cherry Hill’s Ex. A, Item 29. Of note, various items in the terms and conditions portion of the subcontract agreement, including the insurance provision, make an explicit reference to the " Owner", and other provisions, including the indemnity provision, mention the " Subcontractor" and " Contractor" exclusively. On the basis of principles of contract interpretation, Cherry Hill and Graham omitted any reference to Costco or the " Owner" in the indemnity provision by choice. See Biro v. Matz, 132 Conn.App. 272, 282, 33 A.3d 742 (2011) (" [T]he trial court’s finding ... is consistent with the Latin maxim of expressio unius est exclusio alterius or ‘the expression of one thing is the exclusion of another.’ Long a staple of our statutory interpretation, this court also has applied the principle to contractual agreements ... Applying this principle ... it is evident that only those sections of the contract containing affirmative survival language survived delivery of the deed, while those sections lacking such language were excluded from the deed by deliberate choice " [citation omitted; emphasis added]). Costco has not produced any evidence to the contrary.
A non-exhaustive list of provisions in the terms and conditions portion of the subcontract agreement that make specific reference to the " Owner" includes, but is not limited to, Item 1 (" Obligations and Responsibilities"), Item 2 (" Drawings"), Item 3 (" Schedule and Liquidated Damages"), Item 4 (" Payments"), Item 7 (" Change Orders"), Item 10 (" Materials"), Item 11 (" Takeover"), Item 13 (" Material Quality"), Item 19 (" Sub-Tier Subcontractors/Suppliers") and Item 23 (" Employees"). See Cherry Hill’s Ex. A.
See e.g., Item 14 (" Job Damage"); Item 16 (" Bond"); Item 17 (" Workmen’s Compensation"). See Cherry Hill’s Ex. A.
Similarly, there is no genuine issue of material fact that Costco does not have third-party beneficiary rights to enforce the subcontract agreement’s indemnity provision. " We have stated that a third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party." Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981). " [T]he fact that a person is a foreseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary." Gazo v. Stamford, 255 Conn. 245, 267, 765 A.2d 505 (2001). The contracting parties’ " intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties ... [T]he only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended." (Internal quotation marks omitted.) Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 109, 971 A.2d 8 (2009). " The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder." (Internal quotation marks omitted.) Id. " As a matter of contract law, the rights of a third party beneficiary are necessarily circumscribed by the terms of the contract that the beneficiary seeks to enforce." Pedevillano v. Bryon, 231 Conn. 265, 271, 648 A.2d 873 (1994).
Although the subcontract agreement’s insurance provision states that Cherry Hill will add Costco to its insurance policy as an additional insured, Costco does not allege that Cherry Hill has failed to do so. Rather, Costco appears to argue that, by virtue of being an additional insured, it has an independent legal relationship to enforce the entire subcontract agreement. As previously stated, however, a plain language reading of the subcontract agreement’s insurance and indemnity provisions does not suggest that either Cherry Hill or Graham intended for Cherry Hill to indemnify or defend Costco. Similarly, the plain language does not suggest that the parties to the subcontract intended for Cherry Hill to assume a direct obligation to Costco as a third-party beneficiary. For these reasons, Costco’s reliance on Myerson v. Banton Construction Co., Superior Court, judicial district of New Haven, Docket No. CV-11-6019088-S (April 1, 2013, Wilson, J.), is misplaced. In Meyerson, the court held that an owner was a third-party beneficiary to a subcontract requiring that the owner be named as an additional insured on the subcontractor’s insurance policy. The owner in Meyerson, however, alleged breach of contract for the subcontractor’s failure to add the owner as an additional insured on the policy. Id. Here, Costco is not claiming that Cherry Hill failed to add Costco as an additional insured. Further, although the owner in Meyerson also sued for breach of contract for failure to defend and indemnify, the subcontract at issue specifically listed the owner in its indemnity provision. Id. Here, as previously noted, the indemnity provision of the subcontract states only that Cherry Hill will indemnify Graham as the " Contractor." There is no mention of Costco or the " Owner." Accordingly, the plain language of the subcontract agreement and its terms and conditions does not suggest that Cherry Hill and Graham intended for Cherry Hill to assume a direct obligation to indemnify Costco.
" [T]he subcontract requires that the [s]ubcontractor shall indemnify and hold harmless the [c]ontractor and
On the basis of a plain language reading of the evidence submitted, Cherry Hill has met its burden of showing that, as a matter of law, there is no genuine issue of material fact that (1) Cherry Hill did not owe Costco a duty to defend or indemnify, and (2) Costco does not have third-party beneficiary rights to directly enforce the indemnity provision between Graham and Cherry Hill. Costco has not introduced any evidence to the contrary. Accordingly, the court grants Cherry Hill’s motion for summary judgment as to count one of Costco’s third-party complaint.
II
Breach of Contract
As to count two, which sounds in breach of contract, Cherry Hill moves for summary judgment on the grounds that (1) Cherry Hill does not owe Costco a duty to defend and indemnify, and (2) Costco is attempting to raise a breach of contract claim that is unrelated to Jackson’s underlying slip and fall claim. In light of the foregoing analysis, as a matter of law, there is no genuine issue of material fact that Cherry Hill does not owe Costco a duty to defend or indemnify, and that Cherry Hill did not assume a direct obligation or otherwise confer third-party beneficiary rights to Costco in the subcontract agreement between Cherry Hill and Graham. Accordingly, the court grants Cherry Hill’s motion for summary judgment as to count two.
III
Common-Law Indemnification
Finally, as to count three, which sounds in common-law indemnification, Cherry Hill argues that there is no genuine issue of material fact that Cherry Hill was not negligent and was not in exclusive control of the curb stop that allegedly caused Jackson’s injuries. Preliminarily, Cherry Hill argues that it had completed its work on the curb stops to the satisfaction of both Costco and Graham prior to Jackson’s injury. In support of this argument, Cherry Hill relies on an acknowledgment of completion signed by Graham and Costco on July 18, 2013, indicating that the work was substantially complete as of December 13, 2012. See Cherry Hill’s Ex. B2. Further, Cherry Hill argues that neither Costco nor Graham noted any issues with the curb stop, on the basis of excerpts from the deposition of George Runne, Costco’s project manager; see Cherry Hill’s Ex. C; and a punch list inspection prepared by Brandon Brezeale from BL Companies, Inc. Cherry Hill’s Ex. D. Cherry Hill also argues that it was not in exclusive control of the curb stops, which is a necessary element for common-law indemnification. Cherry Hill asserts that Costco and Graham set the specifications for Cherry Hill’s work and ultimately approved it. Moreover, Cherry Hill relies on the punch list inspection stating that work on the project was approximately 99 percent complete on December 3, 2012, and that any remaining work did not involve the curb stop at issue. See Cherry Hill’s Ex. D.
In response, Costco argues that there are genuine issues of material fact regarding Cherry Hill’s negligence. Costco counters that Cherry Hill failed to properly install the curb stops because they lacked yellow end caps and were not properly secured to the parking lot. Costco relies on Jackson’s deposition excerpts, Runne’s deposition excerpts, and photographs of the alleged defective curb stop. See Costco’s Exs. D, E, F, G. Costco also relies on Runne’s deposition testimony that the curb stop was not secured to the parking lot because a piece of rebar had raised up the curb stop. See Costco’s Exs. F, G. Costco argues that by failing to properly secure the curb stop, Cherry Hill breached its duty of care. Finally, Costco argues that because the project was not 100 percent complete until July 18, 2013, an issue of fact remains as to whether Cherry Hill had possession and control over the work on the curb stop.
Cherry Hill replies that it did not have exclusive control over the installation of the curb stop at the time of Jackson’s injury, again relying on the acknowledgment of completion and the punch list inspection. See Cherry Hill’s Exs. B2, D. Additionally, Cherry Hill relies on Costco’s exhibits to argue that Costco and Graham set forth the specifications for curb stop installation, pursuant to the subcontract agreement between Costco and Graham. See Costco’s Ex.C. Accordingly, Cherry Hill argues that Costco and Graham had control over the situation (i.e., the installation of curb stops) that led to the plaintiff’s alleged injuries and that Costco cannot prove, as a matter of law, that Cherry Hill had exclusive control.
" In the absence of an express contract for indemnification or statutory provisions authorizing actions for indemnification ... a party may nonetheless assert an implied right to indemnification as a measure of restitution ... The theory of common-law indemnification is an implied right to indemnification and is considered a means of achieving restitution between the parties." (Citations omitted.) Chicago Title Ins. Co. v. Accurate Title Searches, Inc., 173 Conn.App. 463, 480-81, 164 A.3d 682 (2017). " A plaintiff in an action for indemnification not based on statute or express contract, who had been a codefendant in a prior action with a joint tortfeasor, can recover indemnity from that codefendant only by establishing four separate elements: (1) that the other tortfeasor was negligent; (2) that his negligence, rather than the plaintiff’s, was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the plaintiff; and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988).
The Supreme Court has defined " exclusive control over ‘the situation’ as exclusive control over the dangerous condition that gives rise to the accident." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997). The " situation" is " the condition of danger from which a foreseeable risk of harm ... is claimed to have arisen due to [negligent conduct]" rather than the negligent conduct itself. Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013). Exclusive control is determined at the time of the accident. See Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416, 207 A.2d 732 (1965).
Ordinarily, " the absence or presence of exclusive control is a question of fact." Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 704. In some cases, however, " the question of exclusive control ... may properly be decided as a question of law." Id., 705; see also Wright v. Coe & Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493, 497 (1968) (" [w]here the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court"); Valente v. Securitas Security Services, USA, Inc., supra, 152 Conn.App. 208-09 (determining lack of exclusive control on motion for summary judgment).
The issue of exclusive control has turned on whether the party seeking common-law indemnification had any opportunity to inspect or investigate the situation or defective condition. See McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 524, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006) (McCann). The McCann case involved a claim for common-law indemnification to recover the costs of soil remediation after the plaintiff purchased contaminated property from the defendant. Id., 488-89. The defendant had previously stored oil on the property in aboveground storage tanks, " which resulted in a substantial oil spill ..." Id., 499. Nevertheless, the court denied the plaintiff’s claim for indemnification, in part because the plaintiff had inspected the property and knew of the contamination prior to purchase. Id., 524. Accordingly, the court held that " the defendants were not in exclusive control of the situation, which is the third element [of common-law indemnification], because the plaintiffs investigated the environmental condition of the property." Id.
On the basis of the evidence submitted, Cherry Hill has met its burden that there is no genuine issue of material fact that it was not in exclusive control of the curb stop at the time of the alleged accident. Rather, the evidence submitted by both parties suggests that Costco had some measure of control over the curb stop as well. Because " [c]ontrol is one of the essential elements of primary negligence"; Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 416; the court need not reach the other arguments raised by Cherry Hill.
Preliminarily, Cherry Hill has submitted evidence that it completed work on the curb stop no later than December 13, 2012, over four months before the alleged accident occurred. The acknowledgment of completion, signed by Costco, indicates that the project was deemed " substantially complete" on December 13, 2012. See Cherry Hill’s Ex. B2. Cherry Hill also submitted a punch list inspection stating that the project was approximately 99 percent complete as of December 3, 2012, and that any remaining work did not involve curb stops in handicapped spots, which is where Jackson allegedly fell. See Cherry Hill’s Ex. D. Even if Cherry Hill had negligently installed the curb stop, Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 416, requires Costco to show that Cherry Hill had exclusive control of the situation at the time of the accident. Cherry Hill’s evidence, however, shows that Cherry Hill finished work on the curb stop more than four months prior to the alleged accident. See also Florian v. Alliance Imaging NC, Inc., Superior Court, judicial district of Hartford, Docket No. CV-07-5011975-S (March 25, 2009, Rittenband, J.T.R.) (" [The defendant contractor] claims to not have been at the site for nine months after they completed the job ... Merberg at page 417 stands for the proposition that it is the time of the accident, not the time of the original negligence that Merberg or in this case [the contractor] had to be in exclusive control. This was obviously not the case ...").
In response, Costco offers no evidence that raises a genuine issue of material fact as to the element of exclusive control. Costco argues that the project was only substantially, but not 100 percent, complete as of December 13, 2012, and that an issue of fact remains as to whether Cherry Hill still had control over the work on the curb stop; however, Costco has offered no evidence that Cherry Hill would have had control of the curb stop to the exclusion of Costco. In fact, Costco does not even mention the element of exclusivity in its objection.
Instead, Costco’s evidence only supports Cherry Hill’s argument that it was not in exclusive control of the curb stop. In Costco’s verified responses to Cherry Hill’s interrogatories and request for production, Cherry Hill specifically asked whether Costco had performed an inspection of the curb stops after Cherry Hill had installed them, to which Costco replied " Yes." See Costco Ex. B, Interrog. No. 30. Costco indicated that its inspection of the curb stop had occurred on or before December 13, 2012, when the project was " deemed ‘substantially complete.’ " See Costco’s Ex. B, Interrog. No. 31. Importantly, the specifications of these curb stops were set forth in the subcontract agreement between Graham and Costco; see Costco’s Exs. B, C; and Costco would presumably have noted any discrepancy between its own subcontract specifications and Cherry Hill’s installation at this inspection. Costco did not, however, communicate with or inform Cherry Hill that the curb stop was improperly painted or misaligned prior to Jackson’s alleged fall. See Costco’s Ex. B, Interrog. No. 10. This evidence further supports the argument by Cherry Hill that its work on the curb stop had ended in December 2012, four months before Jackson’s alleged accident.
Moreover, following McCann, supra, 93 Conn.App. 524, evidence that Costco had inspected Cherry Hill’s work on the curb stop leaves no genuine issue of material fact that Cherry Hill was not in exclusive control of the situation. See also Buttrick v. Wilson, Superior Court, judicial district of New Haven, Docket No. CV-09-5026936-S (October 7, 2011, Alexander, J.) (third-party plaintiff and property owner could not prove that builders had exclusive control over dangerous condition in backyard when evidence showed, inter alia, that owner " signed a punch list agreement form confirming that she inspected the property, that she was fully satisfied with the condition of the property, and that the only item that needed attention was the installation of shower doors in the bathroom").
Finally, Costco’s evidence suggests that Costco, rather than Cherry Hill, managed the overall safety of the area where Jackson allegedly fell. See Costco’s Ex. B, Interrog. Nos. 11, 12 (" Every [Costco] employee walks the facility with an eye for safety concerns throughout the day and is trained to be on the lookout for concerns"), Interrog. Nos. 25, 26 (Costco hired entity to plow snow and perform ice remediation in area of alleged trip and fall prior to alleged accident). Again, this evidence suggests that Costco had some measure of control over the curb stop at the time of the alleged accident, thereby precluding the argument that Cherry Hill had exclusive control over the situation that caused the plaintiff’s alleged fall.
Cherry Hill has met its burden of showing the absence of any genuine issue of material fact that, as a matter of law, it was not in exclusive control of the situation at the time of the alleged accident, and Costco has not submitted any evidence that would raise a genuine issue as to this point. Because the element of exclusive control is a necessary element for common-law indemnification, Costco cannot prevail on its common-law indemnification claim as a matter of law. The court grants Cherry Hill’s motion for summary judgment as to count three of the third-party complaint.
CONCLUSION
For the foregoing reasons, the court grants Cherry Hill’s motion for summary judgment in its entirety.
Hall v. Gallo, Superior Court, judicial district of New Haven, Docket No. CV-03-0476708-S (June 25, 2008, Cosgrove, J.); see also Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003) (the Supreme Court has " afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency").
[owner], their agents and their employees from any and all claims, liabilities, demands, damages, losses and expenses ... arising out of, connected with, incidental to, or resulting from the performance of the work of the [s]ubcontract to the extent caused by any negligent act or omission, willful misconduct, breach of the [s]ubcontract, breach of warranty or fault of the [s]ubcontractor ..." (Emphasis added; internal quotation marks omitted.) Id.