Opinion
No. CV 07-5011975-S
March 25, 2009
FACTS AND PROCEDURE:
The plaintiff claims to have fallen down at the University of Connecticut Health Center because she allegedly fell on a metal plate or plates which was covering a trench. The Health Center had contracted with Alliance to move a portable MRI facility at the Health Center's property and to do that a trench had to be dug to allow wiring to reach the MRI trailer. To do that a piece of the sidewalk had to be removed, and the empty area was to be covered by a metal plate. The plaintiff claims that the metal plate was not affixed properly as a result of which she tripped and fell down. The State acting on behalf of the Health Center which was a named defendant by the plaintiff filed a cross claim against Alliance, the contractor, who had done the work resulting in the metal plate being affixed as it was. The cross claim, count two is for common law indemnification i.e., if the State is held liable because of the negligence of Alliance, then Alliance should reimburse the State. The third count is a contractual claim that under the contract between the State and Alliance, Alliance agreed to indemnify the State for costs to the State because Alliance did not represent the State in the plaintiffs' claim.
The Motion to Strike claims that the State did not allege facts to show that Alliance was in exclusive control of the premises which Alliance claims must be alleged with a factual basis to assert a claim of common law indemnification. The Motion to Strike count three claims that it is really repetitious of count two because it also is a claim for indemnification couched in a Breach of Contract claim.
Alliance in its Motion to Strike also claims that the Prayer for Relief part (a) is legally insufficient. Said paragraph a states as follows: "that the Court order Alliance to retain counsel and appear and defend on the State's behalf for the remainder of this litigation." Alliance claims that reimbursement is the proper remedy as requested in the rest of the Prayer for Relief and that requesting Alliance to appear and defend on the State's behalf is improper.
At the time of the hearing before this Court on March 23, 2009, it was pointed out by the Court that the State had filed an amended cross claim against Alliance by document dated March 13, 2009. After some discussion, it was agreed that the March 13, 2009 would be the operative cross claim and that the Motion to Strike could still be used against the amended cross claim dated March 13, 2009.
STANDARD OF REVIEW:
"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. In ruling on a Motion to Strike, the Court is limited to the facts alleged in the complaint. The Court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Waters v. Autuori, 236 Conn. 820, 825 676 A.2d 357 (1996). This applies to cross claims as well.
ISSUES AND FINDINGS: 1. Count two — Common Law Indemnification:
Alliance cites four elements to allege and prove common law indemnification and focuses on the third element as set forth in Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416 (1965), and that is that "the other tortfeaser (Alliance) was in control of the situation to the exclusion of the plaintiff, in this case, the State. In its amended cross claim dated March 13, 2009, the State does allege in count two all of the negligence committed by Alliance at the time that they connected the metal plate to the sidewalk, and in paragraph 13 states that Alliance was in exclusive control of the situation including control of the metal plates, the sidewalk where the metal plates were installed, the premises where the plaintiff later fell, . . ." There are certainly enough allegations of fact to claim that Alliance was in exclusive control and, therefore, fulfilled the element set forth in Merberg, supra. However, the allegations of the second count appear to be that Alliance was in exclusive control at the time it committed the negligence in installing the metal plate, whereas, as Alliance claims, the State has to allege and prove that Alliance was in exclusive control at the time of the accident. Alliance claims to not have been at the site for nine months after they completed the job. In Kaplan v. Merberg, supra, the Court stated: "As two of its conclusions, the Court (trial court) found in effect that at the time of the accident Merberg was not in control to the exclusion of the plaintiffs, nor the plaintiff's to the exclusion of Merberg." (Emphasis added.) Merberg at page 417 stands for the proposition that it is the time of the accident, not the time of the original negligence that Merberg or in this case Alliance had to be in exclusive control. This was obviously not the case, and based upon Merberg, the second count lacks one of the elements required to prove common law indemnification. Perhaps, the State can allege facts that would show that the negligence was a continuing course of conduct that led up to and was present and under exclusive control of Alliance at the time of the accident. However, the Court doubts that such an argument would be sustained. In oral argument, the State maintained that it was at the time of the original negligence. Although this was not addressed in the response by the State to the Motion to Strike, Alliance maintained at the hearing that it had to be exclusive control at the time of the accident. Whether or not Alliance was in exclusive control at the time of the accident can probably be alleged because the issue of whether it was at the time of the negligence or the time of the accident is an issue of fact. However, there is no claim in the second count that indicates that there are facts to show that Alliance was in exclusive control at the time of the accident. In Skuzinski v. Bouchurd Fuels, Inc., 240 Conn. 694, 706 (1997), the Court does say that "it is plausible to define exclusive control over `the situation' as exclusive control over the dangerous condition that gives rise to the accident. That is a glimmer of a possibility for a revision of the second count, but just a glimmer. In Skuzinski, supra, the Court concluded that no reasonable juror could find that the third party defendants had exclusive control over the situation. As the second count is constituted now, because of failure to allege that Alliance had exclusive control to the exclusion of the State at the time of the accident, the Motion to Strike the second count is granted.
2. Third Count — Breach of Contract:
Alliance's claim is that the third count fails to state a cause of action for Breach of Contract; that it is really a claim for indemnification and not a Breach of Contract claim. Paragraph seven of the first count certainly alleges the basis of a contract for indemnification and paragraph 12 certainly alleges the Breach of Contract. The third count incorporates paragraph 1-12 of the first count setting forth the terms of the contract. The third count clearly alleges a breach of that part of the contract which required Alliance to defend the Health Center in this case and that is in paragraph 13 and 14 of the third count. The State is merely seeking damages from Alliance for breaching the contract that requires Alliance to provide counsel to defend the State in this case. It probably could have been incorporated into the first count, but the State has a right to divide it into two counts, one for reimbursement of any damages the plaintiff recovers against the State and in the third count the cost of defending the State. Accordingly, the Motion to Strike the third count is denied.
Also, since the Court has struck the second count, the third count can hardly be repetitious of the second count.
3. Prayer For Relief:
Alliance wants stricken paragraph a of the Prayer for Relief that states: "that the Court order Alliance to retain counsel and appear and defend on the States' behalf for the remainder of this litigation." Since Alliance has so far refused to do so in this litigation, it is unlikely that they will do so, and resolution of that claim by the Court will not take place until the conclusion of the trial. However, it would appear that paragraph c of the Prayer for Relief adequately covers the cost of defending by the Attorney General. Since paragraph a is unnecessary because of paragraph c and because there is no way that paragraph a, as a practical matter, could be fulfilled at this time, the Motion to Strike paragraph a of the Prayer for Relief is granted.