Opinion
No. CV 00-0596353
October 17, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #147
The plaintiff, Robert Brown, brought this premises liability action against the defendants, Airport Industrial Limited Partnership and its general and limited partners, John D'Agostino and Michael Levin, (collectively "AIRPORT LLP") to recover damages for injuries he sustained in a slip and fall on property of AIRPORT LLP. The plaintiff's employer, Industrial Combustion, Inc. (YESCO), filed an intervening complaint to recover workers' compensation payments and AIRPORT LLP filed a counterclaim seeking indemnification under a commercial lease between AIRPORT LLP, as Landlord, and YESCO, as tenant. YESCO filed an answer and special defenses to the counterclaim.
Now before the court is AIRPORT LLP's motion for summary judgment as to liability against YESCO based on the indemnification provisions in the lease. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). "The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . ." (Internal quotation marks omitted.) Cantonbury Heights Condominium Ass'n., Inc. v. Local Land Development, LLC, 273 Conn. 724, 733, 873 A.2d 898 (2005). Although "any party may move for summary judgment upon any counterclaim or cross complaint . . ."; Practice Book § 17-44; "summary judgment procedure is particularly inappropriate where the inferences which CT Page 13351-bn the parties seek to have drawn deal with questions of . . . intent." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).
Because "[an] indemnity agreement is a written contract, [the court's] analysis . . . must be guided by . . . well established principles of contract interpretation." PSE Consulting, Inc. v. Frank Mercede Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). "Under these principles, [a] contract must be construed to effectuate the intent of the parties . . . determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) Id. "[T]he language used must be accorded its . . . ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) Poole v. Waterbury, 266 Conn. 68, 88, 831 A.2d 211 (2003). Id. Clear and unambiguous contractual language is given force according to its terms, as "[a] court will not torture words to import ambiguity." (Internal quotation marks omitted.) Id. "Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than . . . subjective perception of the terms." (Internal quotation marks omitted.) Id. "`[T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.' United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002)." Id. If "`only one interpretation of a contract is possible, the court need not look outside the four corners of the contract.' Levine v. Massey, 232 Conn. 272, 278, 654 A.2d 737 (1995)." Poole v. Waterbury, supra, 266 Conn. 89. In contrast, "[i]f the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 671. "[C]ontract language must be express and definitive for the court to find the parties' intent . . . as a matter of law." Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). If "the lease agreement is ambiguous and does CT Page 13351-bo not present definitive language . . . an issue of fact and a matter of intent . . . can be determined only in light of all the relevant circumstances . . . and issues of fact are not appropriate for summary adjudication." (Citation omitted; internal quotation marks omitted.) Meyhoefer v. Tatoian, Superior Court, judicial district of Waterbury, Docket No. CV 03 0176971 (July 1, 2004, Matasavage, J.) ( 37 Conn.L.Rptr. 319).
Section 14 of the lease agreement, entitled "Indemnity" provides: "Tenant [YESCO] will defend, indemnify and save harmless Landlord [AIRPORT LLP] from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including without limitation, reasonable attorneys fees and expenses) imposed upon or incurred by or asserted against Landlord arising from Tenant's use and occupancy of the Premises or the Common Areas or any breach or default by Tenant of its obligations hereunder or arising from the negligence of Tenant and its employees." YESCO claims that Sections 5.2, 9.3 and 15.1 of the lease agreement contradict its contractual indemnification obligations under Section 14. Section 15.1, entitled "Exemption," states in pertinent part: "Tenant hereby agrees that Landlord shall not be liable for injury to Tenant's business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of Tenant, Tenant's employees, invitees, customers, or any other person in or about the Premises, the Building, or the Project nor unless through its negligence or willful default hereunder nor shall Landlord be liable for injury to the person of Tenant, Tenant's employees, agents or contractors and invitees . . ." (Emphasis added.) At the crux of the parties' disagreement in the present case is the conditional language in Section 15.1 that reads: "nor, unless through its negligence or willful default hereunder, nor . . ." YESCO assumes that this clause modifies the succeeding language whereas the defendants understand this language to qualify only the preceding language due to the second conjunction, "nor."
"[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; (internal quotation marks omitted) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997), citing Practice Book § 17-46. "Documents in support of or in opposition to a motion for summary judgment may be authenticated in variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). No affidavits are affixed to the parties' memoranda to authenticate the attached lease agreement as a true and accurate copy of the original. This court will nonetheless consider the lease agreement since neither party objects on grounds of lack of authentication. "Although . . . the documents [were not] properly authenticated, both parties are in agreement as to the terms of both documents and cite to the relevant portions in their memoranda." Roman v. City of Bristol, Superior Court, judicial district of New CT Page 13351-bq Britain, Docket No. CV 04 0525667S (August 30, 2005, Robinson, R., J.) ( 39 Conn.L.Rptr. 897). See also Sepulveda v. PME Systems, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0455783 (January 14, 2005, Thompson, J.) ("[b]oth parties rely principally on the lease agreement for their respective positions.").
The court need not address the claim of YESCO that the defendants' negligence is apparent in their default under Sections 5.2 and 9.3 for failure to remove ice accumulated in common areas that caused the plaintiff's injuries because the ambiguity in section 15.1 is dispositive of the motion for summary judgment. Under Section 5.2, AIRPORT LLP agreed, inter alia, to incur "all costs and expenses . . . in connection with the maintenance, repair . . . management, security and operation of its interest in the Project including, but not limited to, the buildings and improvements, heating and air conditioning systems, sewer system, drainage systems, signage, landscaping and lawn, lighting, and snow ice [sic] and dirt removal . . ." Section 9.3 states that "[a]ll Common Areas and other areas and facilities in or about the Project provided by Landlord shall be subject to the exclusive control and management of Landlord . . ."
The construction and interpretation of the agreement necessarily depends upon the intent of the parties as manifested by the language of the agreement"; Albrecht CT Page 13351-bp v. Albrecht, 19 Conn.App. 146, 152, 562 A.2d 528 (1989). "[A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself." Jo-Ann Stores v. Property Operating Co., 91 Conn.App. 179, 190, 880 A.2d 945 (2005). The syntax in Section 15.1 renders the parties' intent to limit indemnification in certain circumstances susceptible to conflicting, albeit reasonable, interpretations. Consequently, the parties' intent raises determinative issues of fact not appropriate for summary judgment. See Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003) (ruling summary judgment appropriate only if fair and reasonable person could reach one conclusion); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002) (defining material fact as fact affecting case outcome).
Accordingly, the defendants' motion for summary judgment is denied because material issues of fact exist concerning the defendants' right to indemnification from YESCO.