Opinion
No. X04 CV 05 4005559 S
May 24, 2007
RULINGS ON MOTIONS FOR SUMMARY JUDGMENT
I. The motion of Terra Firma, f/k/a Soneco/Northeastern ("Soneco"), for summary judgment (#140) is denied in part and granted in part. Contractual indemnification, as claimed in the Count Two of Konover's complaint, is not necessarily foreclosed, either by the language of the clause in the contract or by virtue of General Statutes § 52-572k. Though Konover may be considered negligent because of the judgment in the underlying cases, Soneco's negligence was not decided. Because conduct of both Konover and Soneco could conceivably be substantial factors in producing the injuries, the indemnification clause could provide relief to Konover. Similarly, § 52-572k does not bar enforcement of the indemnification clause in these circumstances, because the injuries may not have been caused solely by negligence of Konover. If Soneco was negligent, and Soneco's negligence was a substantial factor in causing the plaintiffs' injuries, then the indemnification clause may be enforceable. See the discussion in Patt v. Metropolitan District Commission, 2007 Ct.Sup. 23181, 42 Conn. L. Rptr. 522 (Beach, J., 2006). Soneco's motion is denied as to Count Two.
After the 2001 amendment, § 52-572k might well bar relief.
Whether relief pursuant to common-law indemnification, claimed in Count One, is barred presents a closer question. This court holds that the evidence presented, if credited, shows a relationship between Konover and Soneco which is sufficiently independent to avoid summary judgment on the ground of the workers' compensation exclusive remedy bar. Ferryman v. Groton, 212 Conn. 138, 144-45 (1989); Parker v. Konover Construction Corp., 2003 WL 21675349 (Aurigemma, J., 2003); Britt v. Danziger Development, 2000 WL 1862651 (Rogers, J., 2000); see also Patt v. Metropolitan District Commission, supra. Soneco expressly agreed to workplace safety requirements, including OSHA regulations; cf. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 449-52 (2003); and cases such as Ferryman suggest that a contractor-subcontractor relationship provides an independent basis on which to base common-law indemnification. See also Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1 (1999).
Soneco has further argued that there is no genuine issue of fact as to several of the elements required to prove a common law indemnification action. See Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 698 (1988). The court finds that genuine issues remain and summary judgment ought not be granted. The verdict and judgment in the underlying cases establish that Konover was negligent, at the very least as to non-delegable duties, but, partly because the question of Soneco's negligence was not presented to the jury, the dispute as between Konover and Soneco was not decided by the jury. The issues such as exclusive control on the part of Soneco may be difficult to prove, but they are not foreclosed. Summary judgment is denied as to the first count.
The fourth count claimed that Soneco was obligated by contract, apparently, to indemnify Konover for its expenses in defending the declaratory judgment action brought by Royal. Soneco claims that Konover's expenses arising from its defense against Royal's declaratory judgment action cannot as a matter of law be transferred to Soneco, because they are not contemplated by the indemnification clause in the construction contract. The contract provides that " all claims, damages, loss and expense, including, but not limited to, attorneys fees" (emphasis added) are subject to the indemnification clause. One perhaps could argue that if Soneco was negligent and such negligence caused injury, and Royal's declaratory judgment action arose in some way out of the injury, then such amounts would be contemplated by the broad language of the clause. The court disagrees with Soneco's contention that the contractual language clearly and unambiguously excludes such damages, and summary judgment is denied as to the fourth count.
The court is offering no opinion as to any other issues, such as proximate causation.
Soneco has also moved for summary judgment as to the third count, which claims breach of contract by virtue of Soneco's claimed failure to obtain required insurance. Konover advised at oral argument that it was not pressing this count. Without objection, then, summary judgment is granted as to the third count of the complaint.
II. Konover's cross-motion for summary judgment (#158) is denied. Each of the counts requires as an element that Soneco be found negligent and that its negligence was a substantial factor in causing injuries. If there were no genuine issue of fact on the question of Soneco's negligence, summary judgment in favor of Konover on the contractual indemnification count may well be appropriate. Konover has presented evidence which tends to show that Soneco was negligent and that its negligence caused injury, thus tending to trigger the contractual indemnification clause, but negligence, as a mixed application of law and fact, should only very sparingly be found on summary judgment. See, e.g., Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198 (1972) ("Litigants have a constitutional right to have issues of fact decided by a jury . . . Summary judgment procedure `is especially ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . .'" (Citations omitted). Though the question is close, and Soneco has not tendered substantial evidence to the contrary, the court finds that there nonetheless are genuine issues remaining which are not appropriately resolved on summary judgment.
Soneco has requested permission to present additional factual material. In light of the court's disposition of the motion, the material is not necessary and the request is moot.
Konover's cross-motion for summary judgment is denied, as all three counts require a finding that Soneco was negligent.
The common-law indemnification count includes as elements not only Soneco's negligence but also findings that Soneco was in control of the situation to the exclusion of Konover and that Konover did not know of Soneco's negligence, had no reason to anticipate it and could reasonably have relied on Soneco not to be negligent. This count presents, then, a greater hurdle to surmount.
III. Conclusion. Summary judgment shall enter in favor of Soneco as to the third count. As to the remaining counts, both sides' motions for summary judgment are denied.