Opinion
No. CV 01-0808238 S
July 8, 2003
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
In this action the plaintiff, Linda Khal, an employee of the third-party defendant, JobPro Temporary Services, Inc. (JobPro Temps), who was assigned to the defendant and third-party plaintiff, United Technologies Corp. Pratt Whitney Division (UTC) seeks to recover damages for personal injuries sustained as a result of a defective condition in UTC's parking lot.
UTC subsequently filed a third-party complaint against JobPro Temps alleging that UTC's agreement with JobPro Temps ("Agreement") required JobPro Temps to indemnify UTC for any liability related to the services performed under the Agreement.
UTC now moves for summary judgment on the third-party complaint on the basis of the indemnity clause in the contract, arguing the Agreement is clear and unambiguous and the intent of the parties was to protect UTC from any and all loss connected with plaintiff's services performed under said agreement.
JobPro Temps claims there are genuine issues of material fact as to whether the plaintiff's injuries arose out of or occurred in connection with the performance of her work under the Agreement, since the plaintiff's injuries occurred outside of the building/office where plaintiff worked, at a time when plaintiff was not actually performing the temporary work for which she was assigned. JobPro Temps also claims that under the Agreement JobPro Temps is not obligated to indemnify UTC for claims arising as a result of UTC's own negligence.
I
Generally, exculpatory contracts relieving an individual from liability for his own negligence are disfavored. Griffin v. Nationwide Moving and Storage Co., 187 Conn. 405, 413, 446 A.2d 799 (1982). However, such contracts have been upheld where the language clearly and unequivocally CT Page 8413-gc sets forth an intention of the parties to indemnify against liability due to one's own negligence. Id.; Laudano v. General Motors Corp., 34 Conn. Sup. 684, 688, 388 A.2d 842 (1977). In BD Associates, Inc. v. Russell, 73 Conn. App. 66, 807 A.2d 1001 (2002), our Appellate Court stated that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts.
Applying this strict construction standard to the present case, the language in the Agreement is clear and unambiguous and leaves no room for construction. The Agreement provides that JobPro Temps " shall indemnfy [UTC] . . . from any liability, claim of liability, expense, causes of action, loss, or damage whatsoever for any injury, including death to any person or property in connection with [JobPro Temps] or [UTC's] performance under this Agreement, it being the intent of this provision to protect and indemnify [UTC] from any and all loss arising out of or in connection with the services performed under this Agreement." (Emphasis added.) Such language is clear and evidences a definite and unequivocal intent to release UTC from liability no matter how incurred, provided it grew out of the performance of the Agreement.
II
The chief issue to be resolved is whether under the second part of the indemnification clause the plaintiff was performing under the Agreement when she was injured. The contract language in question provides that JobPro is liable to UTC for any and all liability occurring " in connection with [JobPro's] or [UTC's] performance under this Agreement" and "arising out of or in connection with the services performed under this Agreement." (Emphasis added.)
Similar indemnification provisions have been reviewed by other Connecticut courts; Cirrito v. Turner Construction Co., 189 Conn. 701, 458 A.2d 678 (1983); McNeff v. Vinco, 59 Conn. App. 698, 757 A.2d 685 (2000); Laudano v. General Motors Corp., supra, 34 Conn. 684. Close examination of these cases reveals that the issue must be analyzed on a case by case basis since resolution thereof depends largely on the wording of the particular agreement, the facts of each case, and the risk assumed by the indemnitor. In Laudano v. General Motors Corp., the employer, a seller of dock shelters, contracted with the buyer to install a dock shelter on the buyer's premises. The contract language of the parties provided for indemnification for liabilities "growing out of the performance of [the] contract." (Emphasis added.) The court found that since the plaintiff, an employee of the seller, was injured while in the process of installing the shelter, his injuries occurred while he was CT Page 8413-gd performing under the contract.
More recently, in McNeff v. Vinco, 59 Conn. App. 698, 703, 757 A.2d 685 (2000), our Appellate Court analyzed an indemnification clause which read that the employer was to be liable for all claims "resulting from the performance of [the employer's work] to the extent caused in whole or in part by any negligent act or omission of [the employer]." (Emphasis added.) On review of the record, the Court failed to find any evidence showing that the defects of the platform that caused the injury were in any way related to the work performed by the employer since the platform was neither designed nor constructed by the employer, and the employer had only placed its equipment on the platform and used it to perform work.
Our Supreme Court in Cirrito v. Turner Construction Co., 189 Conn. 701, 458 A.2d 678 (1983), also addressed an indemnification clause quite similar to the present case. In Cirrito the general contractor employed the first subcontractor who, in turn, employed a second subcontractor, the plaintiff's employer, to perform the lathing and plaster work on the construction site. The first subcontractor had entered into an indemnification agreement with the general contractor. The plaintiff employee was leaving work and, while still on the job site, he fell down the stairs of a loading dock and was injured. The plaintiff's working hours ended at 3:30 p.m. and his injuries occurred between 3:20 and 3:25 p.m. Id. at 703. The contract language in question provided that the subcontractor was to indemnify the general contractor for all damages "caused by, resulting from, arising out of or occurring in connection with the execution of the Work." (Emphasis added.) The Supreme Court declining to hold that "work" as defined in the contract applied only to the act of plastering and lathering, found that while the plaintiff was not exactly engaged in his work when the injury occurred, there was a sufficient connection between the injury and the execution of the work contracted for to make the subcontractor liable to indemnify the general contractor. In its reasoning, the Court articulated that the contract phrase "arising out of . . . the execution of work" is similar to the language used in the Workers' Compensation Act which contains the indispensable condition that injuries covered be those "arising out of and in the course of employment." As a consequence, the Court applied the principals used in workman's compensation cases involving an employee's going to and from work and found that under the facts of the case, there was a sufficient connection between the injuries and the plaintiff's work to justify indemnification.
Despite the striking resemblance between Cirrito and the present case, the two are factually distinguishable. In Cirrito, the plaintiff's CT Page 8413-ge injuries transpired approximately five minutes prior to quitting time while the plaintiff was carrying his tools from his assigned area where storage was not available. Moreover, even though the plaintiff's injuries did not occur at the exact loci of his assignment, the injuries were sustained at the situs of the construction. These facts, as the court indicated in its decision, reasonably create a sufficient nexus to "the work" to find indemnification. In the present case, however, the connection is less discernable. Our plaintiff was injured on an allegedly defective sidewalk running adjacent to the parking area outside the buildings owned and maintained by UTC. The accident occurred at approximately 10:30 a.m., but it is unclear if the plaintiff was on a break or whether she was arriving or departing from work. The record simply indicates that, at the time of the fall, the plaintiff was not actually performing the temporary work for which she was assigned, which was to provide specific office support such as word processing, collections, customer service, and telemarketing. These facts do not appear to create a sufficient nexus to the "performance" of services under the Agreement comparable to that in Cirrito, and it does not seem appropriate to apply the "going and coming" workmen's compensation cases to the present case. The contract language and the surrounding circumstances hardly suggest that the parties intended for workmen's compensation principals to be incorporated into the contract, particularly since our courts have applied strict construction standards to indemnification contracts. See BD Associates, Inc. v. Russell, supra, 73 Conn. App. 72; Laudano v. General Motors Corp. supra, 34 Conn. Sup. 688.
It is reasonable to construe the indemnification clause here limited to injuries that have a sufficient nexus to the performance under the Agreement. To hold otherwise would imply that even an injury occurring to the plaintiff on her way to work would be connected to her performance under the Agreement. While the allocation of risk and the obligation of insuring the persons and property is without doubt embedded in the Agreement, the indemnification clause itself here is not all encompassing. See Leonard Concrete Pine Co. v. C.W. Blakeslee Sons, Inc., 178 Conn. 594 (1979), which held that an indemnity agreement will be construed to cover such losses, which appear to have been intended by the parties.
Since there remains a question of material fact as to whether the plaintiff at the time of the injury was performing under the Agreement, the motion for summary judgment is denied.
Wagner, JTR CT Page 8413-gf