Opinion
No. CV07-5010516S
May 7, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#117)
FACTS
This action arises out of the methadone overdose of the decedent while under the care of the defendants. On April 12, 2007, Maria M. Lopez, administratix of the estate of Sugeili Sanchez-Garcia, filed a one-count complaint against Chemical Abuse Service Agency, Inc. d/b/a Multi-Cultural Ambulatory Addiction Services (CASA). On August 9, 2007, CASA filed an apportionment complaint against Nurse Force, LLC (Nurse Force) and its agents, apparent agents, servants and employees, pursuant to an "Agreement for Contract Nurse Placement," (Agreement) entered into between CASA and Nurse Force. Thereafter, on September 10, 2007, CASA filed a motion to implead Nurse Force and David Kingsbury, R.N., as third-party defendants, which was granted by the court on September 24, 2007. In response, the plaintiff filed a request for leave to amend the complaint on October 15, 2007, to file a claim against the apportionment defendants. Thereafter, on November 5, 2007, CASA filed a four-count third-party complaint, alleging contractual indemnification against Nurse Force and Kingsbury, respectively, in counts one and two, and common-law indemnification against Nurse Force and Kingsbury, respectively, in counts three and four.
CASA requested the plaintiff to revise her complaint on November 16, 2007, in accordance with the apportionment complaint, to which the plaintiff responded with an objection on December 13, 2007, which has not yet been ruled upon.
Finally, on January 22, 2008, Nurse Force and Kingsbury, the third-party defendants, filed a motion to strike the contractual indemnification claims that were brought against them, as set forth in count one and count two of the third-party complaint. In response, CASA filed an objection to the motion to strike and a memorandum in support on February 8, 2008. On February 14, 2008, Nurse Force and Kingsbury filed a reply memorandum. The motion to strike was heard on the short calendar on February 11, 2008.
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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Although the court may find a motion for summary judgment to be the correct vehicle in the present case, "[a] court may not grant summary judgment sua sponte . . . The issue first must be raised by the motion of a party and supported by affidavits, documents or other forms of proof." (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992).
Practice Book § 10-29(a) states in relevant part: "Any plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length . . ."
Nurse Force and Kingsbury move to strike counts one and two of the third-party complaint filed on November 5, 2007, on the grounds that these contractual indemnification claims, CASA has failed to allege legally sufficient causes of action. As to count one, Nurse Force and Kingsbury argue that in order to prevail on an action for contractual indemnification, there must be a contractual relationship between the parties, and the indemnification claim must be based on either an express or an implied contractual right to indemnification. Specifically, they assert that the Agreement does not contain any hold harmless and/or indemnification language. As to count two, Nurse Force and Kingsbury argue that since Kingsbury was not a party to the contract in his individual capacity, no valid cause of action can exist against him.
CASA responds that the motion to strike must be denied as to both counts, as it has properly pleaded the elements of a claim for contractual indemnification. CASA, further, argues that the language within paragraph four of the Agreement, which is pleaded in the third-party complaint, requiring the nurses to maintain their own insurance, implies a contractual right to indemnification, because it creates an implied obligation and, at the very least, an ambiguity regarding the obligations of Nurse Force and Kingsbury.
CONTRACTUAL INDEMNIFICATION
"Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable." Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). "A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification." (Citations omitted; internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).
"As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law." Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264 (January 25, 2007, Owens, J.T.R.) (42 Conn. L. Rptr. 843); see also PSE Consulting, Inc. v. Frank Mercede Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). "The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages . . . [and] causation." Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628 (February 15, 2008, Bentivegna), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).
"[I]n order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . and the identities of the contracting parties must be reasonably certain." (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981); BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). "[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct." Burkert v. Petrol Plus of Naugatuck Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).
Indemnity based on tortious conduct is common-law indemnity, which CASA pleads in counts three and four of the third-party complaint, which are not at issue in this motion to strike.
Here, the agreement does not contain an express contractual provision for indemnification and accordingly, CASA must plead implied contractual indemnity to survive a motion to strike.
IMPLIED CONTRACTUAL INDEMNITY
"A claim of indemnity may be based on an implied contract theory." South Mill Village Association v. Still Hill Development Corp., Superior Court, judicial district of Hartford (July 2, 1998, Teller, J.), citing Alpha Crane Service, Inc. v. Capitol Crane, Co., 6 Conn.App. 60, 80-81, 504 A.2d 1376, cert. denied, 199 Conn. 807, 508 A.2d 769 (1986). "[A] true implied contract can only exist [however] where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words." (Internal quotation marks omitted.) Sandella v. Dick Corp., 53 Conn.App. 213, 219, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).
"An implied contract depends upon the existence of an actual agreement between the parties." (Internal quotation marks omitted.) Herring v. Daniels, 70 Conn.App. 649, 661, 805 A.2d 718 (2002); Marchese v. Gamble, Superior Court, judicial district of Hartford, Docket No. CV 03 0827832 (February 27, 2006, Tanzer, J.). "An implied contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties . . . In order to support contractual liability, the [defendant's] representations must be sufficiently definite to manifest a present intention on the part of the [defendant] to undertake immediate contractual obligations to the plaintiff." (Internal quotation marks omitted.) Janusauskas v. Fichman, 68 Conn.App. 672, 677, 793 A.2d 1109 (2002), rev'd in part on other grounds, 264 Conn. 796, 826 A.2d 1066 (2003). "It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations." (Internal quotation marks omitted.) Sandella v. Dick Corp., supra, 53 Conn.App. 219.
"[A]n indemnification action is also maintainable in contract for breach of an implied obligation to exercise reasonable care in the performance of a contract." Krasowski v. Fantarella, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 91 0036740 (April 21, 1999, Flynn, J.); Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 410, 207 A.2d 735 (1965).
In Metal Management, Inc. v. Femco Machine Company, Inc., Superior court, complex litigation docket at Waterbury, Docket No X02 CV 02 0466524 (October 28, 2002, Schuman) (33 Conn. L. Rptr. 326, 327), the court granted a motion to strike the indemnification claim, stating that "[t]here is no allegation . . . that the defendant promised to perform work for the plaintiff with due care . . . Although the plaintiff alleges that the defendant breached a duty to perform the work in question with reasonable care, the plaintiff does not allege that this duty arose from a provision of a contract between the parties."
CT Page 7667
COUNT ONE
Here, CASA and Nurse Force entered into the Agreement, which does not contain an express indemnity provision. The Agreement, further does not address obligations, such as due care, or damages. Specifically, there are no provisions contained in the Agreement addressing the manner in which the work was intended to be performed. See Krasowski v. Fantarella, supra, Superior Court, Docket No. CV 91 0036740; Kaplan v. Merberg Wrecking Corporation, supra, 152 Conn. 410.CASA, further, fails to specifically plead implied contractual indemnification in its complaint. It does, however, plead paragraph four of the Agreement, which provides that "all temporary nurses provided are independent contractors who provide for their own insurance and education, and are paid directly by Nurse Force." Even though CASA does not explain in its complaint in what manner paragraph four constitutes a promise to indemnify, the facts alleged could support a cause of action; Batte-Holmgren v. Commissioner of Public Health, supra, 281 Conn. 294; because a claim for implied contractual indemnification, though not expressly alleged, may be implied; Violano v. Fernandez, supra, 280 Conn. 318. Viewing this claim in the light most favorable to sustaining its legal sufficiency, this claim is sufficient as one for implied contractual indemnification. Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 378. Here, CASA sufficiently pleaded implied contractual indemnification and the motion to strike is denied.
COUNT TWO
The Agreement is between CASA and Nurse Force, and Kingsbury signed the Agreement as a member of Nurse Force. Kingsbury did not sign this Agreement in his individual capacity, but as an agent or representative of Nurse Force. CASA, further, does not provide any evidence to the contrary. The court holds that the motion to strike count two is granted.
CONCLUSION
Based on the foregoing, the court finds that CASA has sufficiently pleaded implied contractual indemnification and Nurse Force's and Kingsbury's motion to strike count one of the third-party complaint is denied. Further, the court finds that Kingsbury did not sign the Agreement in his individual capacity, and Nurse Force's and Kingsbury's motion to strike count two of the third-party complaint is granted.