Opinion
No. CV-06-4004668-S
May 14, 2008
MEMORANDUM OF DECISION
The plaintiff Dow-Westbrook, Inc., seeks to recover from the defendant, Candlewood Equine Practice, LLC, for its damages arising out of the defendant's alleged negligence, which resulted in an injury to a horse owned by the plaintiff. The defendant has brought a counterclaim in which it seeks damages for its expenses, including attorneys fees, arising out of the plaintiff's breach of a certain indemnification agreement. After trial the court makes the following findings of fact.
The plaintiff, a corporation owned by Jane Dow-Burt, owns a riding stable in Westbrook, Connecticut, known as the Westbrook Hunt Club. The defendant is a limited liability company owned by Dr. Ronald Emond, a veterinarian. The defendant operates a veterinary clinic in Bridgewater, Connecticut. The clinic specializes in equine reproduction.
In 2001, the plaintiff purchased a mare known as Eiffel Tower for $5,000. Contrary to the plaintiff's allegations, Eiffel Tower was not a thoroughbred. When she was purchased Dow-Burt was not given any registration papers, which would exist if the horse was a thoroughbred. At trial Dow-Burt testified that she used Eiffel Tower for riding lessons and that the horse had participated in a few horse shows. No written documentation of Eiffel Tower's accomplishments as a show horse were introduced.
After Dow-Burt purchased Eiffel Tower she learned that the horse had sustained a head injury due to an accident while the horse was being cross-tied. This left the horse with a discernible head tilt.
On April 10, 2004. Eiffel Tower was transported from the Westbrook Hunt Club to Candlewood Equine by means of a truck and trailer belonging to Darren Tiadore, a horse trainer employed by the plaintiff Tiadore was accompanied by Dow-Burt's husband, Thomas Burt. Tiadore did not testify at the trial. Thomas Burt testified that he was a retired building contractor and was not knowledgeable about equine matters. Jane Dow-Burt was not present when Eiffel Tower was delivered to the defendant.
The substance of the conversation between Tiadore and Dr. Emond on April 10, 2004 is crucial to the plaintiff's claims. At trial Thomas Dow-Burt testified that Darren Tiadore told Dr. Emond that Eiffel Tower was not to be turned out with other horses. "Turned out" in the equine context means put in an area like a small pasture.
In contrast, Dr. Emond testified that Tiadore apologized to him for the horse's appearance when Eiffel Tower was delivered. Tiadore told Dr. Emond that Eiffel Tower was not properly groomed or shod and that she had just been pulled out of a field with other horses. Tiadore further told Dr. Emond not to worry about Eiffel Tower's appearance because the plaintiff's intent was that the horse be used only as a brood mare.
The following evidence also pertained to the instructions given by the plaintiff to the defendant concerning Eiffel Tower. Jane Dow-Burt executed a Boarder Agreement which was required by the defendant. That document has a section entitled "Special Handling Instructions," in which Ms. Dow-Burt wrote "careful on crossties she's good, but had an accident — 8-10 yrs. age." Ms. Dow-Burt wrote nothing instructing the defendant to refrain from turning Eiffel Tower out with other horses.
At her deposition on September 24, 2007, Jane Dow-Burt testified that she did not know what special instructions Darren Tiadore had given to the defendant when he delivered Eiffel Tower. This deposition testimony casts significant doubt on the testimony of Thomas Burt as to the plaintiff's instructions to the defendant concerning Eiffel Tower.
Dow-Burt admitted that upon learning about the injury to Eiffel Tower, it would have been natural to question her husband about whether or not any special instructions about turning out had been given to the defendant. Yet, in September 2007 she still had not learned from her husband that Tiadore had given any special instructions to the defendant. Ms. Dow-Burt's lack of knowledge about a key portion of the plaintiff's case in September 2007 combined with her failure to note any instructions warning the defendant not to turn Eiffel Tower out with other horses, renders Mr. Burt's testimony incredible. The court finds that the plaintiff did not instruct the defendant to refrain from turning Eiffel Tower out with other horses.
During the period of time in which Eiffel Tower was at Candlewood Equine, there were three attempts made to artificially inseminate her: an initial attempt on April 17, 2004, and further attempts on May 25, 2004 and July 14, 2004. Eiffel Tower was turned out or pastured together with Anna, another brood mare, from April 10, 2004, until June 2, 2004, the date when the plaintiff claims that Anna kicked Eiffel Tower in the right hind leg, dislocating the hock. Dr. Emond treated Eiffel Tower, who stayed at Candlewood Equine until August 5, 2004. Eiffel Tower remained at Westbrook Hunt Club from August 5, 2004 until June 28, 2005 when she was sold for one dollar as a companion animal.
The plaintiff's negligence count and its breach of contract count are both based on the allegation that the defendant was negligent in turning out the plaintiff's horse with another when a reasonable person would not have done so and failed to get permission from the plaintiff to turn out Eiffel Tower. There was no evidence that turning a horse out with other horses was a violation of any standard of care.
Dr. Jonathan Davis, the defendant's expert, a veterinarian who operates Milfer Farm, a large equine reproductive clinic in New York state, testified that it is standard practice to turn out mares with other mares while they are at a veterinary facility or reproduction clinic for breeding purposes. Doing so produces a calming effect and facilitates the breeding process.
Dr. Davis also testified that injuries occur when horses are turned out by themselves, so no one can predict whether solitary turn out versus herd turnout will be more likely to result in an injury to a horse.
Dr. Davis testified that it would not be proper to turn out a horse with another horse if the horse's owner had given instructions to the contrary. However, as set forth above, the court has found that the plaintiff never told Dr. Emond to refrain from turning Eiffel Tower out with other horses. There was no credible evidence that the defendant violated any standard of care or was otherwise negligent.
In the Second Count of the Complaint the plaintiff alleges that the defendant is liable to the plaintiff because the defendant "failed to properly supervise and provide proper professional care for the plaintiff's horse," which constitutes a breach of the Boarder Agreement. Dr. Davis testified that proper supervision required that before two horses were turned out together, someone would stay in close attendance to make sure the horses got along. Dr. Emond testified that such a "honeymoon" period was given to both horses. When Eiffel Tower arrived she was put directly into a stall which held only one horse. When Eiffel Tower was first introduced to her pasture mate, Anna, someone monitored the two horses from the fence line to ascertain that they got along. Since Eiffel Tower and Anna were turned out together from April 10, 2004 to June 1, 2004, without incident, it is clear that they passed their honeymoon period. There was no other evidence of failure to supervise. The allegation of failure to provide professional care to Eiffel Tower is essentially the same as the plaintiff's claim for negligence. As set forth above, there was no credible evidence that the defendant violated any prevailing standard of care in veterinary medicine with respect to Eiffel Tower.
Judgment may enter in favor of the defendant on the plaintiff's complaint.
The defendant has filed a counterclaim which alleges:
2. At all times material to the plaintiff's Complaint, the plaintiff and defendant were parties to a written Boarder Agreement which provides that the plaintiff, as horse owner, agreed to release and hold harmless the defendant, Candlewood Equine, and its employees, representatives and contractors from and against any liabilities, claims and damages associated with the horse known as "Eiffel Tower," its medical or professional care, boarding or conduct while at Candlewood Equine unless the same results from Candlewood Equine's gross negligence or willful misconduct.
3. Because the plaintiff alleges liability, claims damages associated with the horse which do not result from any gross negligence or willful misconduct on the part of Candlewood Equine, the aforementioned hold harmless clause in the Boarder Agreement has been triggered and the plaintiff is liable to the defendant for all costs including attorneys fees incurred in defending the claim for damages associated with the horse and the boarding and professional care of the horse while at Candlewood Equine.
On April 14, 2004, Jane Dow-Burt signed the Boarder Agreement which had been faxed to her by Candlewood Equine. The release and hold harmless provision upon which the defendant relies is in the same paragraph of the Boarder Agreement on which the plaintiff relies in the Second Count of the complaint to support its breach of contract claim. The pertinent part of the Boarder Agreement provides.
CT Page 7952
Candlewood Equine and its employees, representatives, and contractors will endeavor to properly supervise and directly provide proper, professional care for your horse. As the horse owner, you understand and agree that there is inherent risk involved with the handling and management of horses, and you hereby agree to release and hold harmless Candlewood Equine and its employees, representatives and contractors from and against any liabilities, claims and damages associated with the horse, its medical or professional care, boarding, or conduct while at Candlewood Equine, unless the same results from Candlewood Equine's gross negligence or willful misconduct.
Both the plaintiff and defendant are commercial entities who are similar in experience, size and sophistication. Dow-Westbrook, Inc. is a corporation, whose president, Jane Dow-Burt, is a college graduate. Dow-Westbrook runs a horse farm, Westbrook Hunt Club, which provides riding lessons, the boarding of horses, horse training, and hosts numerous horse shows. Candlewood Equine is a corporation, which boards horses and provides veterinary and horse breeding services.
Dow-Westbrook uses three separate documents which all contain hold harmless and release language similar to that in the defendant's Boarder Agreement. Jane Dow-Burt testified that people taking riding lessons were asked to sign the following hold harmless provision.
the undersigned does hereby agree to hold harmless and indemnify WHC [Westbrook Hunt Club] and further release WHC, its owners, agents, servants, and employees from any liability or responsibility for accident, damage, injury or illness to the undersigned or any horse owned by the undersigned or to any family member or spectator accompanying the undersigned while under the directions and instruction of WHC, its owners, agents and employees.
When the plaintiff boards a horse it asks its customer to sign a boarding contract which contains the following provisions.
5. RISK OF LOSS
While the horse is boarded at WHC, WHC shall not be liable for any sickness, disease, theft or injury suffered by the horse or any other cause of action arising from or connected to the boarding of said horse. The owner fully understands that WHC does not carry any insurance on any horse not owned by it for boarding or any other purposes, for which the horse is covered under any public liability, accidental injury, theft, or equine mortality insurance, and that all costs, no matter how great, connected with boarding are to be born by the owner.
6. HOLD HARMLESS
Owner agrees to hold WHC harmless from any claim resulting from personal or property damage or injury caused by said horse to anyone and agrees to pay any legal fees and/or expenses incurred by WHC in defense of such claims. Within the boarding contract the undersigned hereby acknowledges that the Westbrook Hunt Club is not liable for any injury to, or the death of, a participant in equine activities resulting from the inherent risk of equine activities, pursuant to Section 52-577p of the Connecticut General Statutes which states the following . . .
Numerous horse shows take place at Westbrook Hunt Club which are sanctioned by the U.S. Equestrian Federation. That Federation requires those participating in its horse shows to sign the following indemnification provision:.
I agree that I choose to participate voluntarily in the Competition with my horse, as a rider, driver, handler, vaulter, longeur, lessee, owner, agent, coach, trainer or as a parent or guardian of a junior exhibitor. I am fully aware and acknowledge that horse sports and the competition involve inherent dangerous risks of accident, loss and serious bodily injury including, broken bones, head injuries, trauma, pain, suffering or death ("Harm"). I AGREE to release the Federation and the Competition from all claims for money damages or otherwise from any harm to me or my horse and from any harm caused by me or my horse to others, even if the harm resulted, directly or indirectly, from the negligence of the Federation or the Competition.
Although Jane Dow-Burt testified that she did not read the indemnification provision which she signed on the Candlewood Equestrian Boarder Agreement, it is clear that such provisions were common in the horse boarding/showing/breeding businesses. Connecticut courts have recognized the enforceability of hold harmless provisions releasing a defendant from liability for its own negligence where the parties to the contract containing the hold harmless clause are both commercial entities. B D Associates, Inc. v. Russell, 73 Conn.App. 66, 72-73, 807 A.2d 1001 (2002); Dwight Building Co. v. Stamford House Wrecking Co., 193 Conn. 297, 304, 476 A.2d 563 (1984); Burkle v. Car Truck Leasing Co., 1 Conn.App. 54, 57-58, 467 A.2d 1255 (1983).
"In modern commerce, indemnity clauses are no longer so unusual as to require such specific mention of the indemnitee's conduct as being within the scope of the indemnifying obligation . . . Indemnity clauses in contracts entered into by businesses . . . should be viewed realistically as methods of allocating the cost of the risk of accidents apt to arise from the performance of the contract." Laudano v. General Motors Corp., 34 Conn.Sup. 684 (App.Div., 1977).
In B D Associates, supra, the Court found that a lease for commercial property that provided that there "shall be no liability" on behalf of the defendant landlord to the tenant, but did not refer to negligence, "unmistakably evidences an intent to release the defendant from liability to the plaintiff, no matter how incurred, for the types of losses listed in [that section of the lease]." including losses resulting from the landlord's negligence. Similarly, in Burkle, supra, the Court found that the language "lessee agrees to indemnify and hold [l]essor harmless from any and all liability" was sufficiently explicit and unequivocal to release the lessor from liability for its own negligence. Burkle, supra, at 56-57.
The plaintiff argues that the indemnification clause in the defendant's Boarder Agreement is unenforceable under cases such as Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003); Hanks v. Powder Ridge Rest., 276 Conn. 314, 885 A.2d 734 (2005); and Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006). However, those cases are clearly distinguishable from the present case. They involved contracting parties of unequal bargaining power and liability for causing personal injury.
In the present case the hold harmless/indemnification provision was an agreement to allocate a predictable risk between two commercial entities of equal bargaining power. Moreover, this case does not involve an attempt to limit liability for personal injuries.
Candlewood Equine's Boarder Agreement requested that Dow-Burt acknowledge that there was a risk in managing and handling horses and requested that Dow-Burt agree to release and hold Candlewood Equine harmless from all damages associated with the horse unless those damages were caused by gross negligence or willful misconduct. By signing the Boarder Agreement, Dow-Burt agreed to the foregoing. That is, she agreed to hold Candlewood Equine harmless for damages to Eiffel Tower except if they were caused by willful misconduct or gross negligence. This was the same or similar type of indemnification which Dow-Burt required her customers to sign.
As a further indication that it was a commercial risk allocation device, the Boarder Agreement contained a statement as to the value of Eiffel Tower and also an acknowledgment that the horse was insured, as well as the name of the insurance agency and insurance policy number.
When she signed the Boarder Agreement, Dow-Burt further agreed to release and hold Candlewood Equine harmless from any "liabilities, claims, and damages associated with the horse, its medical or professional care, boarding or conduct while at Candlewood Equine." The defendant claims that by bringing the present lawsuit, the plaintiff breached the hold harmless provision of the Boarder Agreement and that it was damaged in that it incurred expenses defending against this lawsuit. Candlewood Equine, therefore, is seeking its attorneys fees associated with defending the suit. The court finds that the reasonable amount of those fees is $15,000. The defendant is hereby awarded said amount on its counterclaim.
In summary, judgment is entered in favor of the defendant on the plaintiff's complaint and in favor of the defendant in the amount of $15,000 on the counterclaim.