Opinion
No. CV03-0484571-S
March 7, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE CROSS-COMPLAINT ( #125)
BACKGROUND
In this lawsuit, the plaintiff, Mark Sonder Music, Inc. (Sonder) seeks damages for breach of contract and tort arising out of recording star and performer Tony Bennett's appearance on August 18, 2003 at a private party in New Haven, Connecticut. In its complaint, Sonder alleges that defendant Fusco Corporation (Fusco) approached Sonder to arrange for Tony Bennett to perform at the 80th birthday party of Fusco's president. On June 13, 2003, Sonder and Fusco entered into a contract for Tony Bennett to appear for an agreed sum of $250,000. Thereafter, on June 18, 2003, Sonder entered into a contract with defendant Creative Artists Agency (acting on behalf of Tony Bennett) for Tony Bennett to appear at the party for an agreed sum of $200,000. The complaint further alleges that on June 23, 2003, Fusco purported to withdraw from the agreement with Sonder and thereafter Fusco contacted Creative Artists and agreed to pay them $200,000 for Tony Bennett to appear at the party. Tony Bennett appeared at the party and, according to the complaint, Fusco directly paid Creative Artists $200,000 plus expenses, and neither Fusco, Creative Artists nor Tony Bennett paid Sonder anything.
The complaint is in four counts. The first count alleges breach of contract against Fusco and breach of contract against Creative Artists Agency and Tony Bennett (hereinafter collectively referred to as Creative Artists). The second count alleges tortious interference with contract against Fusco and tortious interference with contract against Creative Artists. The third count alleges quantum meruit against Fusco only and the fourth count alleges unjust enrichment against Fusco only.
By pleading dated January 28, 2004, Creative Artists filed a cross-complaint against Fusco alleging that if a contract between Sonder and Creative Artists existed, the breach of that contract was the fault of Fusco. The cross-complaint seeks indemnification from Fusco for any judgment rendered against Creative Artists. In the present motion, Fusco moves to strike the cross-complaint asserting that it fails to state a legally cognizable cause of action. For the reasons set forth below, the motion to strike must be granted.
DISCUSSION
Nowhere in the record is there any claim that Fusco contractually agreed to indemnify Creative Artists. Accordingly, resolution of the present motion turns on whether Creative Artists has adequately alleged common-law indemnification. In this regard, Fusco's motion to strike is premised on its assertion that (1) common-law indemnification cannot be maintained to the extent that it is derivative of a breach of contract claim, and (2) one cannot tortiously interfere with one's own contract.
Creative Artists, on the other hand, frames their indemnification claim differently. Their focus is on the contract between Sonder and Creative Artists. As to this contract, Creative Artists asserts that Fusco's negligence was the direct or immediate cause of plaintiff's alleged damages.
There are two types of indemnification recognized in Connecticut, contractual indemnification and indemnification based on an active/passive negligence theory. Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 411 (1965). As stated above, Creative Artists relies on the active/passive negligence theory of indemnification. This requires proof that the third-party defendant, in this case Fusco, was primarily negligent and that the third-party plaintiff, in this case Creative Artists, was only secondarily negligent. Beaudoin v. Town Oil Company, 207 Conn. 575, 588 (1988). In particular, to state a cause of action for indemnification, the party must allege and prove:
1) that the third party was negligent; 2) that its negligence rather than another's was the direct and immediate cause of the injury; 3) that it had exclusive control over the situation; 4) that the party seeking indemnification did not know of the charged party's negligence, had no reason to anticipate it and could reasonably rely on the charged party to act without negligence; and 5) that the charged party owed an independent legal duty to the secondarily negligent tortfeasor.
Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573 (1982).
Applying this law to Creative Artists' cross-complaint, the cross-complaint does not adequately allege a cause of action for common-law indemnification. First, it fails to allege the necessary elements set forth above. Second, and more importantly, on the present record it does not appear that Creative Artists can make an adequate allegation of those elements.
Creative Artists' principle claim for indemnification pertains to its potential liability for the breach of its contract with Sonder. While Fusco asserts that a common-law indemnification claim cannot be derivative of a breach of contract cause of action, the court is not persuaded that this is necessarily so. In Ruby v. Chase Manhattan Bank, 31 Conn. L. Rptr. 683 (2002), Judge Quinn discussed this issue and rejected the argument that because a first-party complaint sounds in contract, a third-party complaint seeking indemnification cannot be based on a negligence theory. The court finds Judge Quinn's reasoning persuasive.
The problem with Creative Artists' indemnification claim is not that the first-party complaint alleges breach of contract, but rather that the elements of active/passive negligence do not appear applicable to the facts as alleged. Sonder alleges that it had a contract with Creative Artists and sustained damages when Creative Artists breached that contract. As stated above, active/passive negligence only applies in situations where the third party (Fusco) had exclusive control over the situation. The present record does not provide a basis to support an allegation that Fusco was in exclusive control of Creative Artists' contract with Sonder. In addition, active/passive negligence requires allegation and proof that the party seeking indemnification did not know and had no reason to know of the charged party's negligence. The present record does not provide a basis to support an allegation that Creative Artists had no reason to know of Fusco's alleged negligence. To the contrary, the basic premise of Sonder's complaint is that Fusco and Creative Artists both knew of each other's respective contracts with Sonder and breached them in order to do business directly and deprive Sonder of its commission.
To the extent that the cross-complaint seeks indemnification for liability stemming from Sonder's allegation in the second count of intentional interference with contract, it also suffers from the two defects discussed above: (1) it fails to allege the necessary elements of common-law indemnification, and (2) on the present record it does not appear that the elements can be alleged. This is due to at least two reasons. In the first place, the application of an active/passive negligence theory to indemnify for liability arising from intentional tort is problematic. Moreover, Fusco cannot tortiously interfere with its own contract with Sonder. Wellington Systems v. Redding Group, Inc., 49 Conn.App. 152, 168 (1998). In this regard, Sonder seeks damages from Creative Artists for allegedly tortiously interfering with the Sonder-Fusco contract. Since Fusco cannot itself tortiously interfere with that contract, a fortiori, it cannot be deemed actively negligent as compared to Creative Artists.
CONCLUSION
The cross-complaint fails to allege the necessary elements of common-law indemnification. More importantly, it does not appear that such elements can be alleged based on the nature of the first-party complaint.
The motion to strike the cross-complaint is granted.
So Ordered.
DEVLIN, J.