Opinion
No. X04 CV 044003558 S
December 20, 2006
MEMORANDUM OF DECISION
The facts and pleadings in this matter follow a familiar pattern. The plaintiff Patt alleges that he was injured in the course of his employment with Central Construction Industries ("CCI"). CCI had contracted to perform maintenance work at the Mid-Connecticut Waste Processing Facility in Hartford. The facility is owned by the defendant Connecticut Resources Recovery Authority ("CRRA") and managed by the defendant Metropolitan District Commission ("MDC"). Patt claims that he was performing welding services inside a large cylindrical "trommel" when the power was activated. The trommel spun violently as a result, and Patt was seriously injured. He claims that negligence of the MDC and the CRRA caused his injuries. His employer, CCI, intervened for the purpose of recovering its workers' compensation payments to Patt. MDC and CRRA filed a counterclaim against the intervening plaintiff CCI.
The counterclaim contains three counts. The first seeks indemnification pursuant to an active/passive common-law theory; the second claims contractual indemnification and the third claims damages because of an alleged breach of a contractual obligation to include the defendants as additional insureds under CCI's liability insurance policy. CCI, in the motion under consideration by the court, has moved for summary judgment as to all three counts.
Summary judgment "shall be rendered forthwith if the 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." LaFlamme v. Dallessio, 261 Conn. 247, 250 (2002); Practice Book § 17-49. The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn.App. 265, 269-70, cert. denied, 239 Conn. 942 (1996). "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." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 373 n. 7 (2000); D.H.R. Construction Company v. Donnelly, 180 Conn. 430, 434 (1980). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, 252 Conn. 193, 201 (2001); Serrano v. Burns, 242 Conn. 419, 424 (1999); Forte v. Citicorp, Mortgage, Inc., 66 Conn.App. 475 (2000). In Connecticut, "[a] trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, [the trier of fact] could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Colombo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64 (2001), cert. denied, 259 Conn. 912 (2002).
The first count of the counterclaim sounds in common-law indemnity. It alleges that CCI's work was performed pursuant to a contract with the MDC. Among other allegations of negligence were claims that CCI failed to follow safety procedures established by the MDC and failed to follow a specific procedure designed to ensure that the devices were not turned on while workers were inside them, and failed to follow regulations established by MDC, failed to follow OSHA regulations, as required under the contract. The other elements of common-law indemnity are pled: CCI was in control of the situation to the exclusion of CRRA and MDC, the latter relied on CCI not to be negligent in performing its contractual duties and that CCI's negligence was the direct and immediate cause of Patt's injuries and damages.
CCI claims that judgment should enter in its favor on this count because of the workers' compensation exclusive remedy provision. It is true, as stated in Ferryman v. Groton, 212 Conn. 138 (1989) and in many other sources, that ordinarily an employer is liable to its employee, directly or indirectly, only for workers' compensation benefits, and that liability claims against the employer to recover payment arising from the employee's injuries ordinarily are barred, whether asserted directly by the employee or indirectly by means of a third party's claim for contribution or indemnity. Id., 144. Where, however, "the employer can be said to have breached an independent duty toward the third party; or if there is an independent basis for finding an implied promise of indemnity; recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation, such as . . . a contractor's obligation to perform this work with due care . . ." Id., 144-45. If the claim for indemnity is based only on a "primary/secondary" negligence theory, an indemnity claim against an employer is generally not allowed. Id., 145.
A number of cases have applied the language of Ferryman in an effort to determine when the relationship between the putative indemnitor and indemnitee is sufficiently independent and distinct to allow common-law indemnification. See, e.g., Parker v. Konover Construction Corp., 2003 WL 21675349 (Aurigemma, J.); Britt v. Danziger Development, 2000 WL 1862651 (Rogers, J.) [ 28 Conn. L. Rptr. 625]; Marsh v. B D Molded Products, Inc., 2001 WL 1661504 (Thim, J.) [ 30 Conn. L. Rptr. 739]. In the context of this case, there is, of course, a contractor with the presumed obligation to perform his work with due care, which is a relation specifically recited in Ferryman as an exception to the ordinary bar of indemnification actions. More persuasively, the contract in this matter, which was included in the materials in support of summary judgment, imposes a number of specific contractual obligations, such as the obligation to comply with OSHA regulations. See page 00510-14 of the contract. In the circumstances of this case, there is a sufficiently independent relationship — even if the specific clause providing for contractual indemnity is not considered — to support a common-law indemnification action, and the motion for summary judgment as to the first count is denied.
See also Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1 (1999).
The second count of the counterclaim alleges contractual indemnification. A clause in the contract between the parties provides that CCI shall indemnify and hold harmless the defendants "on account of any and all claims, damages, losses . . . arising out of injuries . . . caused in whole or in part by the acts or omissions of [CCI] . . . while engaged in the performance of this Contract." The count alleges various ways in which Patt's injuries were caused by negligence of CCI and seeks indemnification.
CCI claims, first, that the clause does not on its face provide for indemnification in the circumstances presented. The suggestion is that one or more defendants would have to be found negligent before indemnification would be germane: if the MDC, for instance, were not found to be negligent, then there would be no damages to transfer. If the MDC were found to be negligent, then damages caused by that negligence would be sought to be transferred to CCI. CCI is, however, liable only for damages caused in whole or in part by its negligence, and is not liable for damages caused by MDC's (or CRRA's) negligence. In the context of indemnity, the argument goes, there is nothing to transfer.
This proposition would be true if a set of injuries and damages could be caused by only one person's negligence. We understand, however, that a set of injuries and damages may be caused by more than one substantial factor. In the context presented here, negligence of the MDC could presumably be found to be a substantial factor in producing Patt's injuries. If negligence of CCI is also a substantial factor, then the indemnification clause would, on its face, be triggered. That is, suppose that A is a substantial factor in producing P's injuries. B has agreed to indemnify A for damages A has been found liable for, if P's injuries have been caused, in whole or in part, by B's negligence. If negligence of both A and B are substantial factors in producing P's injuries, then B indemnifies A.
Donar v. King Associates, 67 Conn.App. 346 (2001), does not help CCI. There, the counterclaim plaintiff alleged that the counterclaim defendant had contracted to indemnify the counterclaim plaintiff for damages caused by the counterclaim plaintiff's own negligence, which was not the case. The contractual language provided for indemnification "only to the extent [injury is] caused in whole or in part by [negligence of the counterclaim defendant)." Ultimately, of course, I find for the counterclaim defendant on this issue in any event.
There is, however, an additional wrinkle. CCI claims that contractual indemnification is baaed by the application of General Statutes § 52-572k. This section provides that any clause in a "contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto . . . that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury . . . caused by or resulting from the negligence of such promisee . . . is against public policy and void . . ." In the context of a construction contract, then, suppose that B has agreed to indemnify A. In the indemnification context, the agreement will be triggered only if A is found to be liable to P, that is, where the underlying case sounds in negligence, only where negligence of A is a substantial factor in causing injury to P A, whose negligence has been found to have been a substantial factor in causing injury to P, seeks indemnification from B Suppose, as above, that B's negligence is also a substantial factor in causing P's injury. If B were to indemnify A., B would necessarily be holding A harmless against A.'s own negligence. The elimination of the word "sole" modifying negligence in 2001 broadened the reach of the statute: prior to 2001, the prohibition extended only to situations where P's injury was caused by the "sole negligence" of A. Because of the elimination of the word "sole," I conclude that the statute indeed does bar application of the indemnity clause in the circumstances presented here and judgment shall enter in favor of CCI on the second count of the counterclaim.
The defendants and counterclaim plaintiffs have not claimed that the agreement in question does not fall within the language of § 52-572k.
The third count of the counterclaim alleges that the contract in issue required that CCI provide insurance for the benefit of the counterclaim plaintiffs and that the insurer so named by CCI, one "Acadia," has refused to defend and indemnify the MDC and CRRA. CCI urges that summary judgment should enter in its favor because it did provide the insurance in issue and, in any event relief is precluded by § 52-572k.
I do not believe that § 52-572k is applicable, because its concluding clause specifically provides that "this section shall not affect the validity of any insurance contract . . ." I also do not find that the prohibition of certain indemnification agreements extends to the obligation to include a person as an additional insured on an insurance contract. Agreeing to include another as an insured, and paying the associated premium, is not the same obligation as an agreement to indemnify. The former is a predictable fixed cost, which may be included in the contractor's bid for the contract. The latter is an unknown and perhaps catastrophic cost.
CCI suggests that there is in any event no genuine issue of fact because it has fulfilled its obligation by including the counterclaim plaintiffs as additional insureds; if the insurer improperly denies defense and indemnity, there is little CCI can do about it. The materials submitted in connection with the motion for summary judgment include a certificate naming the counterclaim plaintiffs as additional insureds and providing general liability coverage in the amount of $1,000,000 for personal injury and $2,000,000 general aggregate. Also included are copies of two letters from claims representatives for Acadia refusing to defend and indemnify the MDC because "our insured (CCI) did not cause the accident." I do not immediately see how a determination that CCI didn't cause the accident has anything to do with a decision not to defend the counterclaim plaintiffs as insureds — as perhaps opposed to a decision not to indemnify on a common-law indemnification theory — but that issue is not specifically before me and, among other considerations, I do not have the policy or other documents, including the specific request made to Acadia, before me. Without knowing further details of the insurance transaction, I cannot find that there are no genuine issues of fact and the motion for summary judgment is denied as to the third count of the counterclaim.
The motion for summary judgment is denied as to the first and third counts and granted as to the second count. Judgment shall enter in favor of CCI on the second count of the counterclaim.
Beach, J.