Opinion
No. CV02 0279552-S
April 7, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #159
The plaintiff, David Kristjansson, was an employee of Talcott Machine Products. The captioned defendant, Edward Pietrewicz, was an industrial machinery repairman doing business as Induction Equipment Services. In January of 2000 Talcott hired Pietrewicz to repair an induction brazer machine ("the machine"). During the repair, Kristjansson sustained an electric shock and consequent injuries. He brought this action claiming his injuries were caused by the negligence of Pietrewicz in repairing and testing the machine.
During the pendency of this action, Pietrewicz died. The administrator of his estate, Joseph W. Topor, Jr., has been substituted as a defendant. For the purpose of this decision, the court will continue to refer to the defendant as Pietrewicz.
Kristjansson also filed a workers' compensation claim with Talcott, and Talcott filed an intervening complaint against Pietrewicz to recover its workers' compensation payments. Pietrewicz then was granted permission to file a third-party complaint against Talcott, alleging that Talcott's negligence was the cause of the accident. Pietrewicz is seeking indemnification for any judgment rendered against him on the underlying complaint, plus costs, expenses, and attorneys fees.
When Pietrewicz's motion to implead was granted, Talcott had already filed its intervening complaint against Pietrewicz. Thus, the third-party complaint should have instead been framed as a counterclaim to Talcott's intervening complaint. This procedural irregularity does not affect the decision of this court as to the motion for summary judgment, notwithstanding Pietrewicz's assertion, without authority, that third-party complaints filed pursuant to General Statutes § 52-102a should be treated differently from counterclaims for indemnification in the context of the issues presented in the motion for summary judgment.
In his one-count complaint, the plaintiff alleges that Pietrewicz was negligent and careless in instructing that the machine be turned on when it was not safe to do so; in failing to replace the metal plates on the machine before instructing that the machine be turned on; in failing to repair the machine in a safe manner; and in failing to warn the plaintiff of the danger when the machine was turned on.
In his third-party complaint, Pietrewicz alleges that the accident was caused by the negligence of Talcott in that Talcott had maintained and continued to maintain a hazardous situation of its own creation by repairing, testing and attempting to operate the machine without its rear and left side panels; bypassing the safety interlock switches on the machine; not allowing Pietrewicz to repair the machine as he thought best, in his own way, at his own speed, and under his own direction; keeping a supervisor on the job who told Pietrewicz how they were going to repair the machine and only used Pietrewicz for portions of the job; not hiring qualified employees to start the repair process and/or to fabricate particular parts of the machine, which Pietrewicz then helped to install; not putting up barriers and/or otherwise warning its employees of the hazard it had created despite the fact that it had assumed control of the job site; and not controlling its employees to keep them out of harm's way even though a Talcott supervisor was present. The third-party complaint further alleges that Talcott never gave Pietrewicz responsibility for the job, always used Pietrewicz as another employee and that Pietrewicz had no reason to know that Talcott's supervisor would be negligent in controlling Talcott's employees in the presence of the electrical hazard of Talcott's creation. Finally, the third-party complaint alleges, Pietrewicz had no reason to anticipate Talcott's negligence and could reasonably rely upon Talcott not to be negligent when it was in exclusive control of the job.
Talcott filed a motion for summary judgment as to the defendant's third-party complaint on the ground it is barred by the exclusivity provisions of the Workers' Compensation Act, General Statutes § 31-284.
Sec. 31-284. (a) An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided notifying in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.
Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle [it] to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).
In its motion for summary judgment, Talcott argues that the exclusivity provisions of the Workers' Compensation Act bar Pietrewicz's third-party complaint. Talcott further argues that, in this case, there is no breach of any independent legal duty or any promise to indemnify, which might circumvent the exclusivity provisions of the Workers' Compensation Act.
Talcott also contends that no reasonable juror could find that it was in exclusive control of the situation to the exclusion of Pietrewicz. For the reasons discussed later in this opinion, that contention is not material to the decision.
Pietrewicz raises the procedural objection that the arguments that Talcott raises in its motion for summary judgment are suited to a motion to strike, not a motion for summary judgment. "The existence of a duty is a question of law and `[o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.'" Petriello v. Kalman, supra, quoting Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982). "The existence of an independent legal duty between the indemnitor and the indemnitee is a question of law and is properly raised in a motion for summary judgment." Shoenburger v. North Kendall Properties, Inc., Superior Court, judicial district of New London at New London, Docket No. 524795 (May 11, 1994, Leuba, J.)
"When the third party, in a suit by [an] employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed." (Internal quotation marks omitted.) Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989). Thus, "indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship." (Emphasis added.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 699, 694 A.2d 788 (1997).
The parties appear to agree on the general standards for common law indemnification claims. They also appear to agree that where the indemnification defendant is the underlying plaintiff's employer, an additional requirement is imposed — that there be an "independent legal-duty" between the indemnification plaintiff and indemnification defendant. They disagree over what constitutes an "independent legal duty."
To maintain a common law action for indemnification, a plaintiff must demonstrate four elements: 1) that the other tortfeasor was negligent; 2) that the indemnification defendant's negligence, rather than his own, was the direct, immediate cause of the accident and injuries; 3) that the indemnification defendant was in control of the situation to the exclusion of the indemnification plaintiff; and 4) that he did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent. Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 698-99.
Both Talcott and Pietrewicz cite Ferryman v. Groton, supra, 212 Conn. 138, to argue their positions. Talcott relies on the following: "The right to indemnity [against a plaintiff's employer] is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a primary wrongdoer impliedly promises to indemnify a secondary wrongdoer, the great majority of jurisdictions disallow this claim." (Internal quotation marks omitted.) Id., 145.
In the present case, the parties do not dispute that the evidence indicates a legal relationship existed between Talcott and Pietrewicz. Specifically, Talcott hired Pietrewicz to repair the machine located on its premises and Talcott had hired Pietrewicz on other occasions to perform repair work as well. That independent legal relationship, however, by itself does not give rise to an independent legal duty on the part of Talcott to indemnify Pietrewicz. Talcott correctly argues that none of the defendant's allegations against it refers to an independent legal duty that it owed to Pietrewicz. The defendant counters that his allegation that Talcott exercised exclusive control over the repair job and that Talcott was negligent is sufficient to allege an independent legal duty running from Talcott to Pietrewicz.
Ferryman instructs that "[t]he right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care." Id., 212 Conn. at 145. Conversely, an independent legal relationship is clearly not established solely by the allegation that the indemnification defendant's negligence was primary to the indemnification plaintiff's. "[A]llegations that are based solely upon the `active or primary negligence' versus the `passive or secondary negligence' principles of Kaplan v. Merberg Wrecking Corporation, are simply inadequate to establish the independent relationship that would obviate the operation of the exclusive remedy doctrine." Id. (Internal citations omitted).
The third-party complaint does not allege any facts indicating that the defendant's indemnification claim is based on a written contract or an express agreement to indemnify. Rather, it appears to be premised on allegations that Talcott, by retaining exclusive control of the circumstances that led to the plaintiff's injuries, breached an implied, independent legal duty to Pietrewicz. These allegations the defendant claims are similar to the allegations that the court found facially sufficient to overcome a motion to strike and to sustain an indemnification claim in Ferryman v. Groton, supra, 212 Conn. 146, with the important distinction that in Ferryman, the defendant/third-party plaintiff and one of the third-party defendants were co-owners of the property where the plaintiff sustained his fatal injuries. Accordingly, the court explained: "[W]e see allegations by an owner whose property, while in the possession of another, is alleged to have caused the death of a third person whose access to the property has been furnished by the agent of the party in possession. When viewed in the light most favorable to the pleader, as required in addressing a motion to strike . . . the complaint discloses the essentials of either a co-owner relationship, a bailor-bailee relationship or a lessor-lessee relationship, any one of which could contain the express or implied independent, legal duty that would serve to preclude the operation of the exclusive remedy provisions of § 31-284." (Emphasis supplied). "An allegation of exclusive control . . . without more, does not imply that the plaintiff owed the defendant a duty." Plas-Pak Industries v. Prime Electric, LLC, Superior Court, judicial district of New London, Docket No. 566178 (August 26, 2004, Hurley, J.T.R.).
An indemnification claim is not adequate if it is "based upon any duty that the [employer] owed to [the plaintiff] but [must be based] upon an entirely independent and separate duty [that the employer] owed to the [independent contractor]." Ferryman v. Groton, supra, 212 Conn. 144. Pietrewicz asserts various allegations of negligence on the part of Talcott but none of them refers to an independent legal duty and or a basis for finding an implied promise of indemnity. Pietrewicz contends, however, that an act of negligence by an employer, committed while in exclusive control of a job site, carries with it an implied promise to indemnify other persons on the site who might get sued by the injured party.
One of the Skuzinski elements for a common-law indemnification claim is that the indemnification defendant must be "in control of the situation to the exclusion of" the indemnification plaintiff. Skuzinski, 240 Conn. at 698. Skuzinski further notes that workers' compensation cases "warrant the special additional limitation of an independent legal relationship." Id., 240 Conn. at 699 (Emphasis added). If "exclusive control" were sufficient to satisfy the "independent legal relationship" requirement, then the requirement of an "independent legal relationship" would be redundant, not "additional."
See note 5, supra.
Pietrewicz's reading of Ferryman is additionally unpersuasive because it erroneously locates that case's "independent legal relationship" in negligence and not in contract or property law. In Ferryman, the court, in determining the sufficiency of the complaint in ruling on the motion to strike stated, "The third-party complaint alleges that the electrical substation was owned, operated, maintained and controlled by Electric Boat" and "The complaint discloses the essentials of either a co-owner relationship, a bailor-bailee relationship or a lessor-lessee relationship, any one of which could contain the express or implied independent, legal duty that would serve to preclude the operation of the exclusive remedy." Id., 212 Conn. at 146. One Superior Court interpreting Ferryman has agreed that it was Electric Boat's co-ownership, and not its exclusive control of the job site, that supported the independent legal relationship. LaVoie v. Marriott International, Inc. et al., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 01-0808756 (May 13, 2004, Wagner, Judge Trial Referee) (locating the independent legal relationship between Groton and Electric Boat in "mutual ownership by defendants of property that caused injury").
There is more, however, to Pietrewicz's argument. In his third-party complaint, he alleges that he was never given responsibility for the job and "was always used as just another employee." "The fundamental distinction between an employee and an independent contractor depends on the existence or nonexistence of the right to control the means and methods of work . . ." (Citation omitted.) Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996). "The determination of the status of an individual as an independent contractor or employee is often difficult . . . And, in the absence of controlling considerations, is a question of fact. Larimer v. Administrator, 216 Conn. 237, 249-51, 579 A.2d 497 (1990).
Assuming arguendo, that a factual dispute exists as to the status of the third-party plaintiff, that dispute does not involve a material fact because an employment relationship between Talcott and Pietrewicz, while an independent legal one, does not create an independent legal duty on the part of Talcott, express or implied, to indemnify Pietrewicz for the plaintiff's work-related injury. At best, Pietrewicz, as a putative Talcott employee, might also enjoy the protection of the workers' compensation act which provides the exclusive remedy to employees sustaining work related injuries or death from such injuries caused by the negligence or wrong of a fellow employee. General Statutes § 31-293a.
Section 31-293a provides in pertinent part, "If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was willful or malicious . . ."
Talcott has sustained its burden to show the absence of any genuine issue of material facts which, under applicable principles of substantive law, entitle it to a judgment as a matter of law. Even viewing the allegations of the third-party complaint and the evidence most favorably to the nonmoving party, as required in Barrett v. Montesano, supra, 269 Conn. 791-92, Pietrewicz has failed "to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact."
The motion for summary judgment is granted.
BY THE COURT
Tanzer, Judge