Opinion
No. X 09 CV 06 5008202
December 13, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE CROSS CLAIM
The town of Willington (town), as third-party defendant, has moved to strike all four counts of a cross claim seeking indemnification as they apply to the third-party plaintiff, Brian Worthington, and counts two and three of the cross claim as they apply to the third-party plaintiff, Rocky Mountain Wood Company (Rocky Mountain).
The plaintiff, Patti Wright, has sued for the wrongful removal of trees on her property while land was being cleared for a road widening project. The defendants are the town and its first selectman and public works supervisor, as well as Rocky Mountain and Mr. Worthington. Rocky Mountain was clearing the trees under a contract with the town, and that contract contained a clause obligating the town to indemnify Rocky Mountain and hold it harmless "to the fullest extent permitted by law from any and all claims, charges, demands, liabilities or causes of action, including Rocky Mountain's reasonable attorney fees in the defense thereof, by any third-party claimant arising out of the [tree clearing] . . ."
The cross claim is based on this indemnification clause. Specifically, it seeks indemnification on counts three (negligence), six (wanton and reckless misconduct) and nine (intentional trespass). In the cross claim Mr. Worthington is identified as an "employee" of Rocky Mountain. See Second Revised Cross claim, count one, ¶ 1.
Count twelve of the complaint, which alleged creation of a nuisance by Rocky Mountain and Mr. Worthington, was previously stricken by this court.
I
The cross claim alleges that the parties to the contract pursuant to which Rocky Mountain was clearing land for the road project were Rocky Mountain and the town, and the promise to indemnify was directed to Rocky Mountain. Cross claim, ¶¶ 3 4. It would appear that Mr. Worthington seeks indemnification as a third-party beneficiary of the contract; Id., ¶ 8; and the town claims that he has failed to allege sufficient facts to support a conclusion that the town assumed an obligation to indemnify him via the contract.
The law is settled that it must be the intent of both parties to a contract that a person have rights under the contract as a third-party beneficiary. See, e.g., Grigerik v. Sharpe, 247 Conn. 293, 311 (1998). Mr. Worthington makes no such allegation in the cross claim. He contents himself with alleging that he "was working for . . . Rocky Mountain, and claims a right of contractual indemnification from [the town] under the scope and intent of the indemnification." Second Revised Cross claim, ¶ 8. Not only does the cross claim not allege that the town intended to indemnify Mr. Worthington, but his objection to the motion to strike addresses itself only to Rocky Mountain's intent in entering into the agreement. Memorandum of Law in Support of Objection to Motion to Strike, 5 ("It does not make sense that Rocky Mountain would negotiate indemnification for itself and not its employees who perform the work").
As it applies to Mr. Worthington, the cross claim is nothing more than an allegation that, as an employee, he is a third-party beneficiary of the contract between his employer and the town. This states a conclusion of law not facts supporting that claim and is insufficient to carry the case to the jury. Therefore, the motion to strike all four counts of the cross claim will be granted as they apply to him.
II
Counts two and three of the cross claim seek indemnification from the town if Rocky Mountain is found liable to Ms. Wright under counts six and nine, respectively, of her complaint. Count six alleges that Rocky Mountain engaged in reckless and wanton misconduct in damaging Ms. Wright's property; count nine alleges an intentional trespass on her property by Rocky Mountain. The town argues that agreements by which a party will be indemnified for its intentional or reckless and wanton misconduct are void as against public policy, and the court agrees.
Although the town has not cited and the court has not found any Connecticut cases squarely on point, the recognition of a public policy against such contracts seems universal. See, e.g., 42 C.J.S., Indemnity § 8 (2007) ("A contract to relieve a party from its intentional or willful acts is unenforceable as against public policy."); Friedman v. Hartman, 787 F.Sup. 411, 422 (S.D.N.Y. 1992) ("Enforcement of a contractual obligation to provide contribution or indemnity to a party for that party's intentional misconduct would contravene the public policy of deterring and penalizing intentional misconduct . . ."
In the analogous field of exculpatory contract provisions, i.e., contract provisions by which one party seeks to immunize itself from liability to another, our Supreme Court has relied on the same public policy as that stated in Friedman, supra, to strike down such provisions:
(T)he law does not favor contract provisions which relieve a person from his own negligence . . . This is because exculpatory provisions undermine the policy considerations governing our tort system. (T)he fundamental policy purposes of the tort compensation system (are) compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. (Internal quotation marks and citations omitted.)
Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 327 (2005). Cf. Lassow v. Jefferson Pilot Financial Insurance Co., Superior Court, judicial district of Hartford, Docket No. CV 01 00807131 (Sept. 8, 2003), and cases cited therein.
Rocky Mountain cites no law to the contrary and acknowledges that "(i)ndemnification for an intentional tort may be problematic." Rocky Mountain's Post-Argument Brief Regarding Contractual Indemnification, 3. Its sole claim is that the challenge to the contract is premature because the trier of fact has yet to determine whether Rocky Mountain's actions were intentional or wanton and wilful. But:
A third party complaint is premised on the plaintiff prevailing against the defendant third party plaintiff . . . Thus, for the purposes of a motion to strike the third party complaint on the ground that the third party defendants cannot, as a matter of law, be liable to the defendant for the claims by the plaintiff, it is necessary to assume that the jury found that the plaintiff established the elements of the cause or causes of action in the first party complaint against the defendant . . . It is settled law that if a judgment in the first action against the defendant third party plaintiff rests on a fact fatal to recovery in the action over against the third party defendant, the latter action cannot be successfully maintained.
Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. 331912 (Oct. 21, 1995).
For the plaintiff to prevail on counts six and nine, the objects of counts two and three of the cross claim, she would have to prove, respectively, that Rocky Mountain acted wilfully and wantonly or intentionally. That fatal fact would then be established against Rocky Mountain, and its indemnification pursuant to the contract with the town would be against public policy. Accordingly, counts two and three must be stricken because, as a matter of law, Rocky Mountain cannot recover against the town.
IV
For the reasons stated in this memorandum the motion to strike is GRANTED.