Opinion
No. CV-03-0091498-S
January 24, 2006
FACTS
The plaintiffs, Scott, Lisa, Jocelyn and Derrick Longtin commenced this suit against the defendants, The Glens Falls Insurance Company a/k/a Encompass Insurance (Encompass), W.P.C., Inc. a/k/a Servpro of Milford (Servpro), Donald M. Weekes, Abacus Environmental, Inc. (Abacus) and Guy and Cindy Watson by writ, summons and complaint dated September 8, 2003. The complaint contains six counts. Count one is alleged by all plaintiffs against all defendants in negligence; count two, all plaintiffs against Encompass, Servpro, Abacus and Weekes alleging negligent infliction of emotional distress; count three, all plaintiffs against Encompass, Servpro, Abacus and Weekes alleging reckless and wanton misconduct; count four, all plaintiffs against Encompass, alleging common-law bad faith; count five, all plaintiffs against Encompass, alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA); and count six, all plaintiffs against Encompass alleging punitive damages under CUTPA.
The allegations are essentially as follows. The plaintiffs, all family members, live in Torrington, CT. Servpro is in the business of providing cleaning services, fire and water damage mitigation and restoration services. Encompass is an insurance provider. Abacus provides services including testing and analysis of, and consulting services regarding, indoor air quality and indoor environmental contamination. Weekes, the president of Abacus, is a certified industrial hygienist and certified safety professional. Guy and Cindy Watson are engaged in the business of Servpro d/b/a Servpro of New Haven.
Encompass issued a homeowners policy to the plaintiffs. In September 2001, sewage, septic effluent and/or black water released into the plaintiffs' home through a floor drain in the basement. The plaintiffs notified Encompass of the occurrence and submitted a claim. Encompass assigned an adjuster to handle the claim and hired Servpro to clean up the house.
In the months following the clean up, the plaintiffs suffered various illnesses. One of the plaintiffs' doctors suspected the illnesses may have been related to the contamination in the house. The plaintiffs requested that Encompass investigate the condition of the house further. No such investigation occurred.
In April 2002, Lisa Longtin spent an entire day in the basement doing work. The next day, she passed out in a store and then again in her car while trying to drive herself and her children home. The plaintiffs called Encompass to request that they pay for more tests, which they did through Abacus. Weekes, accompanied by Encompass' adjuster, tested the house and took samples from discoloration on walls in the basement. No air samples were taken. In the resulting report, Abacus stated that Weekes had found high levels of fungi and bacteria as well as toxic mold in the basement, all of which were known to cause illness and allergic reactions in humans. However, Encompass still did not recommend any air quality testing. The report also made several recommendations regarding removal and cleaning of the fungi and molds. Encompass arranged for cleanup of the house, but it did not include the removal of all affected areas, such as removing framing wood for the walls in contact with affected areas, or removal of wall studs, fixtures, or furnishings.
The plaintiffs vacated their home for several days in July 2002 and were told that, upon their return, the house would be "hospital quality" clean and sterile. On July 8, 2002, air samples were taken but not swab samples. A report was then issued by Abacus stating that the house was available for re-occupancy. The plaintiffs re-occupied but continued to suffer various physical ailments.
In February 2003, an environmental engineer from Northeast Laboratories performed an inspection of the plaintiffs' home and in its report, indicated that a highly elevated concentration of fecal coliform bacteria was found in the basement. Northeast recommended that more cleaning be done and that all wood in contact with the floor be removed and replaced with metal studs. In addition, a doctor specializing in mold and fungi related health issues told the plaintiffs they should not continue living in their home, but Encompass refused to pay for any related expenses. The plaintiffs vacated the premises for a time but returned to the home in the spring of 2003 for lack of funds to continue living elsewhere. They have since sealed off the basement from the rest of the house with airtight plastic barriers.
Encompass filed a six-count cross claim on September 9, 2005. In the subject counts, three and four, Encompass asserts common-law indemnification against Abacus and Weekes. Abacus and Weekes have moved to strike these counts. Encompass objects.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . ." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . ." (Citation omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "In ruling on a motion to strike, the court must assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court should] read the allegations broadly, rather than narrowly . . ." (Citation omitted; internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn.App. 67, 77, 811 A.2d 243 (2002). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . ." (Citation omitted; internal quotation marks omitted.) Ventres v. Goodspeed Airport, 275 Conn 105, 154, 881 A.2d 937 (2005).
In their motion to strike counts three and four of Encompass' cross claim for indemnification, Weekes and Abacus allege that the cross claim is legally insufficient because it fails to sufficiently allege that Weekes and Abacus were in control of the remediation and assessment of the plaintiffs' home to the exclusion of Encompass, and that Encompass lacked knowledge of the alleged negligence of Weekes and Abacus. In their memorandum in support of the motion, they argue that, for Encompass to impose total liability on its co-defendants through indemnification, they must allege and prove four elements. Those four elements, they argue, are that: 1. The alleged indemnitor was negligent; 2. The alleged indemnitor's negligence was the direct and immediate cause of the damages that were sustained; 3. The alleged indemnitor was in control of the situation to the exclusion of the other, the indemnitee; and 4. The indemnitee did not know and had no reason to anticipate the indemnitor's negligence and could reasonably rely on them not to be negligent.
Encompass filed an objection to the motion to strike in which it argues that it has adequately stated a legally sufficient claim against both Weekes and Abacus. In its accompanying memorandum in support of their objection, Encompass argues that it has sufficiently alleged that Weekes and Abacus were in control at the plaintiffs' home to the exclusion of Encompass. Encompass also argues that the weight or validity of the facts supporting a claim is not a proper basis upon which to challenge the legal sufficiency of the claim as pled, and that they have sufficiently alleged that they were unaware of, and had no reason to anticipate, Weekes' and Abacus' negligence.
"[I]f a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the active or primary negligence of the party against whom reimbursement is sought . . . Such proof requires a plaintiff to establish 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." (Internal quotation marks omitted.) Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).
To determine whether Encompass has alleged facts that are legally sufficient to sustain a cause of action for common-law indemnification, "[w]e construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted, internal quotation marks omitted.) Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
In this case, construing the pleadings in the light most favorable to Encompass, the facts alleged in counts three and four of the cross claim for indemnification are sufficient to support a cause of action for common-law indemnification. Encompass claims that Abacus and Weekes were "in exclusive control of their agents and employees and their actions with regard to the assessment and remediation of the affected area of Plaintiffs' home. Defendant had no control over co-defendant's agents, servants or employees during the performance of its duties."
In addition, Encompass alleges it "had no reason to anticipate co-defendant's negligence," and further that Encompass "is not an expert with regard to assessment and remediation in the area of microbial infestation." In count four, Encompass adds that Weekes represented to it that "he had the knowledge and capabilities required to remediate the affected areas of Plaintiffs' property," and that it relied on those representations.
CONCLUSION
Counts three and four of Encompass' cross claim for indemnification, against Abacus and Weekes allege facts sufficient to state a cause of action for common-law indemnification. The motion to strike counts three and four of the cross claim is denied.