Opinion
No. CVH 7684
July 23, 2009
MEMORANDUM OF DECISION
The third-party defendant, Brook Haven Condominium Association (the "Association") has moved to strike the cross complaint of the third-party plaintiffs, Kenneth Burkamp and Anne Burkamp ("Burkamp"), in its entirety on the ground that Connecticut law does not recognize common-law indemnification for intentional torts. The Association submitted a memorandum of law in support of its motion and Burkamp filed a memorandum of law in opposition to the motion.
The underlying action arises out of a seven count complaint brought by the plaintiff tenant, Seth Martel, alleging that Burkamp committed tortious conduct including claims for count three (illegal entry), count four (civil theft), count five (breach of contract), count six (unfair trade practice in violation of CUTPA) and count seven (punitive damages for violation of CUTPA).
Burkamp's cross claim alleges "If Third-Party Plaintiff is held legally responsible to plaintiff for damages as a result of the matters alleged in said counts three, four, five, six and seven of plaintiff's complaint, then said Third Party Plaintiff is entitled to indemnification from Brook Haven Condominium Association, Inc. for any such damages, including settlement or judgment, as well as for the cost of defending the lawsuit brought by the plaintiff." The relief sought in the cross claim is indemnification for any settlement or judgment rendered against the cross claimants, attorneys' fees and such other relief as the court deems appropriate.
LEGAL STANDARD
"A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike . . ." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256, 905 A.2d 1165 (2006). "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. 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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293(1997).
DISCUSSION
Count three of the plaintiffs complaint alleges conversion of the plaintiff's property following Burkamp's illegal entry. Count four alleges civil theft by Burkamp following Burkamp's illegal entry. Count five alleges that Burkhamp breached his contract to permit the plaintiff to have access to a storage area in the basement. Count six alleges conduct by Burkamp which was "immoral, unethical, oppressive and unscrupulous" and "deceptive, violative of statute and public policy [and] immoral." The Association argues that Burkamp's complaint for common law indemnification for the acts complained of by the plaintiff is not legally sufficient because Connecticut law does not permit indemnification in cases where the third-party plaintiff's liability to the first-party plaintiff is premised on intentional conduct.
In its memorandum of law, the Association claims "It has been universally held by Connecticut Superior Courts. . . . That common law indemnification is not permissible for intentional torts." Burkamp argues that it has not been "universally" held that indemnification is not available for intentional conduct and cites as authority, Shelby Insurance Co. v. Castellon, No. CV 98-0416779S (May 26, 2000).
Neither party has brought to the attention of the court, any appellate authority concerning the issue of indemnification for the claimant's alleged intentional misconduct and both parties agree that there is none.
The court has reviewed the cases cited by the parties and concludes that the weight of authority found in the reported Superior Court cases clearly favors the Association's argument. Moreover, a fair reading of Shelby Insurance cited by Burkamp, reveals that, in that case, the court granted summary judgment to the defendant on the plaintiff's indemnification claim based on an exclusive control issue and merely commented on the cases cited by the defendant as not having "explicitly" limited common law indemnification to negligence actions. In Starview Ventures v Acadia Insurance, 46 Conn. L. Rptr. 342 (2008), the court granted the third party defendant's motion to strike an indemnification claim by the first-party defendant in a conversion action. In Lassow v. Jefferson Pilot Financial Insurance Co., 35 Conn. L. Rptr. 496 (2003), the court granted the third-party defendant's motion for summary judgment on an indemnification claim premised on CUTPA.
In the present matter, count three (illegal entry and conversion), count four (civil theft), count five (breach of contract), count six and seven (violation of CUTPA) of the plaintiff's complaint all allege intentional tortious conduct on the part of Burkamp.
In the absence of any controlling Appellate authority, this court agrees with the majority view that there is no common law action for indemnification for intentional tortious conduct. Moreover, this court believes that the denial of indemnification claims where the only allegation against the claimant is premised on intentional misconduct serves to discourage such misconduct and is consistent with sound public policy.
The third-party defendant, Brook Haven Condominium Association's motion to strike the cross complaint is granted.
SO ORDERED.