Opinion
No. CV06-5002025
May 22, 2007
ORDER RE MOTION TO STRIKE (#120)
Perco Snow, Inc. filed a Motion to Strike the defendant Hidden Quarry Association, Inc.'s cross claim. Hidden Quarry seeks common-law indemnification from Perco.
The cross claim, filed on January 9, 2007, alleges that Perco was responsible for the removal of snow and/or ice from parking areas at the Hidden Quarry Condominium complex. The plaintiff, William Hawkins, allegedly fell within those parking areas. The cross claim further alleges that Perco had exclusive control over the area and that if an unsafe condition was created or allowed to exist, it was the active negligence of Perco that proximately caused the injuries of which the plaintiff complains. Specifically the cross complaint alleges four separate theories of negligence and further asserts that Hidden Quarry did not know of Perco's negligence, had no reason to anticipate said negligence, and reasonably relied upon Perco to act in a reasonable and non-negligent manner.
The defendant Perco seeks to strike the cross claim because it is legally insufficient. It argues that Hidden Quarry owes a nondelegable duty to the plaintiff. See Smith v. Town of Greenwich, 278 Conn. 428 (2006). As a result of this nondelegable duty Perco claims cannot be found to be in control of the situation to the exclusion of Hidden Quarry and therefore common-law indemnification cannot be supported.
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) CT Page 7474 Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[When the] issues concern the granting of a motion to strike, [the court is] limited to and must accept as true the facts alleged in the . . . complaint." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 315 n. 4, 813 A.2d 1003 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Rizutto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006).
The cross claim defendant relies upon Gazo v. City of Stamford, 255 Conn. 245 (2001) and Smith v. Greenwich, supra. Those cases involved efforts by property owners to file statutorily allowed apportionment complaints against snow removal contractors. The courts' analysis focused on inconsistency of a theory of vicarious liability and the apportionment statutes (Gen. Stat. 52-102b and Gen Stat 52-572h) which statutes contemplate a parsing out of separate acts of negligence between the first-party defendant and the apportionment defendant.
Hidden Quarry does not seek to apportion its liability in this case. It claims that it is entitled to indemnification from Perco because of Perco's negligence was the direct and immediate cause of Hawkins' injuries, that Perco was in control of the situation to the exclusion of Hidden Quarry and that Hidden Quary did not know of Perco's negligence. See Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 407 (1965). In Smith, the court noted that "It is widely recognized that, when one party is vicariously liable for another party's conduct, the appropriate remedy for an innocent party who has been held vicariously liable is a claim for indemnity rather than apportionment." Smith, supra at p. 462.
Accepting the allegations of the cross complaint as true, Hidden Quarry has plead a cognizable claim for common-law indemnification. The issue of exclusive control of the premises, one of the predicates for a common-law indemnification, presents issues of fact not suitable for resolution by a motion to strike. The motion to strike is denied.