Opinion
No. CV 05 6000015
August 8, 2007
MOTIONS TO STRIKE, #124.00, #125.00
The apportionment and third-party defendants, Flowserve Corporation's (Flowserve) and Kenneth Industrial Products, Inc.'s (Kenneth Industrial), filed motions to strike counts one and two, respectively, of Hungerfords, Inc.'s (Hungerfords) revised apportionment complaint on the ground that Hungerford's complaint is based on a products liability theory of liability and apportionment is only available or applicable to claims sounding in negligence. The third-party defendants' also move to strike counts one, seven and nine, and counts two, eight and ten, respectively, of Hungerfords' third party complaint because Hungerfords' complaint sounds in product liability and under the Connecticut Products Liability Act (CPLA), the Uniform Commercial Code (UCC) is the sole remedy for commercial losses between commercial parties. Hungerford's denies that its claims are product liability claims and therefore asserts the motions to strike must fail. Oral argument was held on May 7, 2007.
FACTS
The original complaint filed by New Haven Terminal, Inc. (NHT) on December 19, 2005, alleges Hungerfords breached its contract, duty of care and duty of warranty in failing to properly inspect, repair and monitor the reinstallation of a pump associated with NHT's bulk liquid storage tank (pump). NHT alleges that when the pump was used it malfunctioned, dispersing diesel fuel into New Haven Harbor and compelling NHT to conduct an extensive pollution recovery and containment operation. NHT and Hungerfords employed New England Pump Valve Co. (NEPV) to inspect the pump and NEPV discovered that the wrong O-Ring had been used during the repair of the pump and that the O-Ring failed and caused the oil spill.
On November 7, 2006, Hungerfords filed a two-count revised apportionment complaint and a ten-count third-party complaint. In its apportionment complaint, Hungerfords alleges that Flowserve and Kenneth Industrial were directly involved with Hungerfords' prior rebuilding of the pump, and provided the mechanical seal at that time, including the O-Ring. Hungerfords alleges that, in the present case, it reinstalled the pump as rebuilt with the exact same materials and components furnished by Flowserve and Kenneth Industrial in the earlier rebuilding. When the pump began to leak, Hungerfords removed the pump and returned the pump to its shop for further inspection, where Hungerfords was joined by representatives of Kenneth Industrial and Flowserve. Hungerfords alleges that though the mechanical seal leaked upon examination, these representatives "indicated that in their view the mechanical seal was good." Hungerfords requested a new mechanical seal, but allowed Kenneth Industrial to pick up the seal from Hungerfords and deliver it to Flowserve to be rebuilt. Hungerfords alleges that the mechanical seal was then returned, along with a bill of materials stating that the O-Ring was comprised of Viton, a material compatible with diesel fuel, and that it then reassembled and installed the pump. After the pump had failed, approximately one month later, NHT invited Hungerfords to come on site and be present during a inspection by NEPV. Hungerfords alleges that upon NEPV's disassembly of the pump, the O-Ring was found to be swollen to approximately twice its normal size. Hungerfords then requested that NHT provide Analytical Answers, Inc., a third party laboratory, a piece of the O-Ring. Analytical Answers, Inc. discovered that the O-Ring was constructed of a synthetic EPDM elastomer which is not compatible with diesel fuel, rather than Viton. Hungerfords alleges that at the time Flowserve and Kenneth Industrial provided it the seal, Hungerfords could not have known that the seal was not Viton due to the apportionment defendants' "erroneous representation" that it was Viton. Hungerfords avers that, but for the incompatibility of the O-Ring composition, the fuel leakage would not have happened, and therefore, that any negligence on its part is directly attributable to Flowserve and Kenneth Industrial. Hungerfords further alleges in its third party complaint breach of contract, breach in sale of goods, breach of warranty, and innocent misrepresentation, as against both Flowserve and Kenneth Industrial, for which it seeks indemnification.
DISCUSSION
"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). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
Apportionment Complaint
Flowserve moves to strike count one of the apportionment complaint because since NHT's original complaint against Hungerfords sounds in negligence Hungerfords' cannot file an apportionment complaint that sounds in product liability. Flowserve argues in its memorandum in support of its motion that General Statutes § 52-102b(f) provides the exclusive means by which a defendant in a negligence action may seek to apportion liability pursuant to § 52-572h to a non-party, and that § 52-572(h)(o) specifically prohibits apportionment based on theories other than negligence. Flowserve argues further that, according to Allard v. Liberty Oil Equipment, Co., 253 Conn. 787, 756 A.2d 237 (2000), a defendant sued in a negligence action may not file an apportionment complaint sounding in product liability, even if the defendant limits the apportionment complaint to negligence claims, and that, as long as the claim falls within the scope of the product liability statute, a claimant does not have the option of bringing a common law cause of action for the same claim because the statute provides exclusive remedy. Applying the reasoning of the Allard decision, Flowserve asserts that, although Hungerfords "cloaks its claims" in its apportionment complaint in language of negligence, this court should "view the allegations as a whole," and find, rather, that Hungerfords' complaint sounds in product liability. In support of this argument, Flowserve points to Hungerfords' allegations that Flowserve "provided the mechanical seal that failed and that caused the resulting damages, failed to provide the proper mechanical seal, and made material misrepresentations in relation to the mechanical seal." These allegations, Flowserve maintains, are based on property damage allegedly caused by a product sold, supplied, and/or manufactured by Flowserve, and as such, describe a product liability claim under General Statutes § 52-572m.
General Statutes § 52-102b(1) provides: "This section shall be the exclusive means by which a defendant may add a person who may be liable for a proportionate share of the plaintiff's damages as a party to the action."
General Statues § 52-572(h)(o) provides in part: "[T]here shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence . . ."
General Statutes § 52-572m(b) provides: "`Product liability claim' includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent misrepresentation or nondisclosure, whether negligent or innocent."
In its objection to Flowserve's motion to strike, Hungerfords argues that it seeks to apportion liability to Flowserve based on Flowserve's negligent conduct in providing Hungerfords with the wrong product, not on a theory that Flowserve provided them with a defective product. Hungerfords asserts that "seeking damages for supplying the wrong product to a purchaser is wholly outside the purview of the CPLA and clearly apportionable when attributable to negligent conduct."
Hungerfords filed its apportionment complaint pursuant to General Statutes §§ 52-102b and 52-572h. General Statutes § 52-102b(a) provides in part: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability." General Statutes § 52-572(h)(o) provides in part: "[T]here shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence . . ." The Supreme Court has thus interpreted" `any civil action to which section 52-572h applies' within the meaning of § 52-102b, [to mean] a civil action based on negligence." Allard v. Liberty Oil Equipment, Co., supra, 253 Conn. 793-95. In Allard, the court further determined that § 52-572h does not permit an apportionment complaint that seeks to limit its allegations against a product seller, as defined by § 52-572m, to allegations of negligence. In that case, the defendant, Liberty Oil, alleged that the apportionment defendant, Boston Steel, "designed, manufactured, installed, distributed, or sold' the portion of the oil truck from which the plaintiff allegedly fell." The court found that "[t]hese allegations [were] classic allegations of product liability," that Boston Steel was a "product seller" within the meaning § 52-572m, and, therefore, that "despite the limitations by Liberty Oil of its allegations of misconduct to allegations of negligence, the allegations of the apportionment complaint constitute a `product liability claim' with the meaning of § 52-572m(b)." Id., 799-800. The court concluded that "it would be inconsistent with the provisions of § 52-572h . . . to permit a defendant sued in negligence to claim apportionment against a product seller whose alleged misconduct tracks that of product liability, solely because the party seeking apportionment chooses to limit its allegations to those sounding in negligence . . ." Id., 804.
General Statutes § 52-572m(a) provides: "`Product seller' means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term `product seller' also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products."
Two issues are therefore determinative of Flowserve's motion to strike count one of the apportionment complaint. First, the court must determine whether the pleadings indicate that Flowserve is a product seller as defined by General Statutes § 52-572m(a) of the product liability act. Second, the court must determine whether the apportionment complaint involves Flowserve's actions as a product seller.
As noted above, General Statutes § 52-572m(a) defines a "product seller" as "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." General Statutes § 52-572m(e) defines a product manufacturer to include "product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer." In the present case, Hungerfords alleges in its apportionment complaint that Flowserve provided the mechanical seal, including the O-Ring component; that representatives of Flowserve indicated that the mechanical seal was good; that Hungerfords sent the mechanical seal back to Flowserve, which then rebuilt the seal; and that Flowserve returned the mechanical seal to Hungerfords, "along with a bill of materials stating that the O-Ring was comprised of Viton." Flowserve, therefore, qualifies as a manufacturer and a product seller as defined under the product liability act.
The next issue is whether the claims raised by Hungerfords amount to claims for relief covered by the scope of the product liability act. Pursuant to § 52-572m(b), a product liability claim "includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." In reading the product liability statutes together, however, the Supreme Court has noted that "the [liability act] was designed in part to codify the common law of product liability, and in part to resolve, by legislative compromise, certain issues among the groups interested in the area of product liability. The [liability act], however, was not designed to eliminate claims that previously were understood to be outside the traditional scope of a claim for liability based on a defective product. Given this contextual framework, we conclude[d] that a product liability claim under the [liability] act is one that seeks to recover damages for personal injuries, including wrongful death, or for property damages, including damage to the product itself, caused by the defective product." Harley v. Heart Physicians, P.C., 278 Conn. 305, 325-26, 898 A.2d 777 (2006) (allegations contained in plaintiffs' CUTPA claim "had asserted either that the defendant's product was defectively designed or that the defendant, in a deceptive manner, failed to warn properly about the functioning of the pacemaker, and, therefore, the claim was barred by the exclusivity provision of the Connecticut Product Liability Act").
In the present case, Hungerfords alleges that "Flowserve knew or should have known that Hungerfords would reasonably rely on the representations of the apportionment defendants to provide a Viton O-Ring for use in a pump intended for diesel fuel"; that "Flowserve knew or should have known that Viton is compatible with diesel fuel"; that "Flowserve knew or should have known that synthetic EPDM elastomer which was provided to Hungerfords, contrary to Hungerfords' specific order and contrary to Flowserve's own bill of materials purporting to deliver Viton, was not compatible with diesel fuel intended for the pump"; and that "Flowserve's representations to Hungerfords that the O-Ring provided was Viton was a material misrepresentation negligently made by apportionment defendants as a statement of fact intended to induce Hungerfords to act and rely upon it." These allegations address the conduct of Flowserve, rather than any defect in the O-Ring Flowserve supplied, and therefore the allegations fall outside the exclusivity provision of the product liability statute.
Hungerfords has cited two Superior Court cases in which the court came to the same conclusion regarding allegations similar to those in the present case. In the first case, Alevras v. United Builders Supply Co., Inc., Superior Court, judicial district of New London, Docket No. CV 05 4002473 (June 21, 2006, Jones, J.) (41 Conn. L. Rptr. 499), the court denied the defendant's motion to strike as to counts eight and nine of the plaintiff's third amended complaint, for breach of the implied covenant of good faith and fair dealing and fraudulent misrepresentation, respectively, noting that "in counts eight and nine, the plaintiff alleges claims that are directed at the conduct of UBS, and are not directed at the product." The plaintiff in Alevras alleged that he ordered certain wood flooring from the defendant and that the defendant represented that it would supply the specified wood flooring, but in fact supplied a different type of wood. The plaintiff further alleged that the defendant knew that its statements and representations made to the plaintiff with regard to the type of wood ordered were false, and that the defendant intended to mislead the plaintiff. The Alevras court concluded that "[t]he allegations in counts eight and nine concern UBS' conduct and do not seek recovery for personal injury, death, or property damage in relation to the product itself . . . [and thus] go beyond the product liability claim being made against UBS and therefore are not barred by the exclusivity provision of the CPLA." Id., 500.
In the second case, Drennan v. Geist, Superior Court, judicial district of Middlesex, Docket No. CV 99 89114 (January 2, 2002, Shapiro, J.), the plaintiff alleged that the defendant doctor informed the plaintiff that the wrong instrument was used during his knee surgery and that, further, the doctor had been informed by the defendant supplier, Tradewinds Group, Inc., that the wrong polyethylene tibial insert was given to him. The court found that "the plaintiff has neither alleged that the insert in question was in any way defective nor that the insert itself caused the plaintiff any harm. Further, the plaintiff does not allege that the product had any unreasonably dangerous propensities of which this defendant failed to warn. The plaintiff very simply and clearly alleges that the polyethylene tibial insert implanted in the plaintiff was the wrong one . . ." The court concluded that since the plaintiff had not alleged that the product was in any way defective the plaintiff had failed to state a legally sufficient cause of action under the product liability statute.
Similarly, Hungerfords' allegations that Flowserve supplied them with the wrong O-Ring address the conduct of Flowserve rather than any defect in the O-Ring Flowserve supplied, and therefore the allegations fall outside the exclusivity provision of the product liability statute. Hungerfords' apportionment complaint sounds in negligence and is, therefore, legally sufficient to state a claim upon which relief can be granted under General Statutes § 52-572(h)(o). Flowserve's motion to strike count one is denied.
The foregoing analysis also disposes of Kenneth Industrial's motion to strike count two of the apportionment complaint. Kenneth Industrial's motion to strike count two is denied.
Kenneth Industrial moves to strike count two of Hungerford's apportionment complaint on the same grounds asserted by Flowserve, that Hungerfords' complaint falls within the purview of the product liability act and is thus not a permissible apportionment claim. Hungerfords counters, as in its objection to Flowserve's motion, that its allegations concern the conduct of Kenneth Industrial, rather than any product defect, and, therefore, its apportionment complaint is appropriate under § 52-572h.
Third Party Complaint
Flowserve moves to strike counts one, seven and nine of Hungerfords' third party complaint on the ground that, "as between commercial parties, claims for indemnification for lost profits in the form of payment of a judgment constitute a commercial loss," and the Connecticut Product Liability Act (CPLA) requires commercial parties to seek recovery of commercial losses under the UCC. Flowserve argues that Hungerfords, therefore, cannot recover under the CPLA, and their indemnification claims are legally insufficient.
In its objection, Hungerfords argues that as it has not alleged a product liability claim as defined in § 52-572m(b), but rather it "claims damages through the negligent conduct of Flowserve, which is outside the purview of the policy furthered and injuries sought to be protected by the CPLA." Hungerfords, therefore, "refers to and incorporates its arguments concerning the applicability of the CPLA to its apportionment complaint" and "submits that the CPLA does not apply to its claims in counts 1, 7 and 9 of the third party complaint."
The CPLA acknowledges a right of indemnification in General Statutes § 52-577a(b): "[A] product seller may implead any third party who is or may be liable for all or part of the claimant's claim . . ." The act limits, however, the types of harm recoverable in product liability actions involving commercial parties. Specifically, the act defines "harm" to include "damage to property, including the product itself and personal injuries including wrongful death." General Statutes § 52-572m(d). The statute continues, "[a]s between commercial parties, `harm' does not include commercial loss." General Statutes § 52-572n(c) states: "As between commercial parties, commercial loss caused by a product is not harm and may not be recovered by a commercial claimant in a products liability claim. An action for commercial loss caused by a product may be brought only under, and shall he governed by, title 42a, the Uniform Commercial Code." General Statutes § 52-572n(c); see also Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003) (the CPLA is the exclusive remedy against product sellers for harm caused by a defective product).
In the present case, Hungerfords claims breach of contract against Flowserve in count one, innocent misrepresentation in count seven, and indemnification in count nine of its third party complaint. As determined in the foregoing analysis with regard to its apportionment complaint, Hungerfords' allegations sound in negligence, rather than product liability, and, therefore, do not fall under the exclusivity provision of the CPLA. Consequently, Hungerfords' claims are not governed by the UCC. Flowserve's motion to strike count one, count seven and count nine of the third party complaint is denied.
Kenneth Industrial moves to strike counts two, eight and ten of Hungerfords' third party complaint on the ground that each count fails to state a sufficient third party claim and is preempted by the UCC. As discussed above, with regard to Flowserve's motion, the foregoing analysis concerning Hungerfords' apportionment complaint also disposes of Kenneth Industrial's motion to strike counts two, eight and ten, because Hungerfords' allegations, sounding in negligence, do not fall under the exclusivity provision of the CPLA, and are not preempted by the UCC.
Alternatively, Kenneth Industrial moves to strike count ten on the additional ground that "Hungerfords' common law indemnification claim falls outside of the claims permissible under General Statutes § 52-102a." Kenneth Industrial argues in its memorandum in support of its motion that, pursuant to the impleader statute, any analysis of whether it is liable to Hungerfords for all or part of NHT's claims against Hungerfords must begin with the premise that NHT prevailed in its first party action. In support of this proposition, Kenneth Industrial cites Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 413, 207 A.2d 732 (1965), wherein the Supreme Court determined that "if a judgment in the earlier action [against the third-party plaintiff] rested on a fact fatal to recovery in the action over against [the third-party defendant], the latter action cannot be successfully maintained." Id., 413-14. Relying on the Supreme Court's decision in Preferred Accident Ins. Co. v. Musante, Berman Steinberg Co., 133 Conn. 536, 542, 52 A.2d 862 (1947), Kenneth Industrial further argues that indemnification requires proof that it was actively or primarily negligent, and that indemnification will not lie where the party seeking indemnity was himself guilty of affirmative misconduct which was the proximate cause of the injury in question. Kenneth Industrial asserts that if the court were to assume that NHT prevailed in its claims against Hungerfords, then Hungerfords would be found actively negligent and thus could not "state a claim for active/passive negligence against Kenneth Industrial."
While Kenneth Industrial cites to General Statutes § 52-102b in its motion, this is obviously a typographical error. Kenneth Industrial's intention was clearly to cite § 52-102a as evidenced by its reliance on the impleader statute in its memorandum. Additionally, Hungerfords' third party complaint is pleaded pursuant to § 52-102a. Section 52-102a provides, in part: "(a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him."
In its objection, Hungerfords argues that it is entitled to indemnification because Kenneth Industrial and Flowserve "breached contractual obligations and engaged in tortious activity thereby causing damages." Hungerfords argues that it "has pleaded sufficient facts necessary to establish that Kenneth Industrial was primarily/actively negligent and that Hungerfords was only secondarily/passively negligent." Hungerfords argues that, as Kenneth Industrial supplied the wrong product to Hungerfords, Kenneth Industrial was primarily/actively negligent and is, therefore, liable for indemnification.
General Statues § 52-102a(a) provides in part that "[a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." An impleading party "has the burden of alleging facts sufficient to bring an action within the requirements of the statute . . . As a fundamental and threshold requirement, a third party plaintiff must allege that the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff's claim against him." Commissioner v. Lake Phipps Land Owners Corp., 3 Conn.App. 100, 102, 485 A.2d 580 (1985). In Lake Phipps, the amended third party complaint alleged that "the City of West Haven is or may be liable to the plaintiff for all or part of the plaintiff's claim against the third party plaintiff." The Appellate Court determined that this language was "clearly incorrect" and that it failed "to meet an essential allegation mandated by the statute." Id., 102. The court noted that the complaint should have alleged that the city of West Haven "is or may be liable to the third party plaintiff corporation, not the plaintiff commissioner." Id. See also Southport Contracting, Inc. v. Scinto, Superior Court, judicial district of Fairfield, Docket No. CV 04 0410323 (June 24, 2005, Dewey, J.) (court granted motion to strike "[b]ecause the third-party plaintiff [had] not properly alleged that the third-party defendant [was] liable to the third-party plaintiff for any or all of the plaintiff's claim"); Gavigan v. Country Manor Health Care, Superior Court, judicial district of Waterbury, Docket No. CV 99 154618 (March 16, 2001, Rogers, J.) ("[i]n order to implead a nonparty for common law indemnification action, the third-party plaintiff must allege that the third-party defendant is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim").
In the present case, Hungerfords alleges in count two of the apportionment complaint, incorporated into its third party complaint, that if the allegations by NHT of its "failure to perform in a workmanlike fashion, failure to exercise the duty of reasonable care, diligence and skill and allegations of negligence occurred at all, which is denied, such conduct, omissions, negligence, breach of duty of care and carelessness are directly attributable to the apportionment defendants as the direct, sole and proximate cause." In count ten of its third party complaint Hungerfords alleges that "[a]s a consequence of Kenneth Industrial's actions, Hungerfords has suffered monetary damages for which it is entitled to full indemnity from Kenneth industrial." Hungerfords has alleged that Kenneth Industrial is liable for all or part of NHT's claim and, therefore, Hungerfords has alleged the essential facts required by § 52-102a(a). See Durkin v. Engler, Superior Court, judicial district of Danbury, Docket No. CV 01 0344431 (August 31, 2004, Mintz, J.) (third party plaintiff's allegation that it "seeks indemnification from Barreto Manufacturing to the extent damages are awarded against the third-party plaintiffs" found sufficient to bring an action within the requirements of § 52-102a).
"In an action for indemnity . . . one tortfeasor seeks to impose total liability upon another [tortfeasor] . . . [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . Ordinarily there is no right of indemnity or contribution between joint tortfeasors . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury . . . Under the circumstances described, we have distinguished between active or primary negligence, and passive or secondary negligence . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones . . . Thus, the common-law doctrine of indemnification permits a tortfeasor to assert a claim only against another liable tortfeasor." (Citation omitted; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 642, 732 A.2d 767 (1999). "[T]he applicability of the rule is negatived, wherever it appears that the party seeking indemnity was himself guilty of affirmative misconduct which was a proximate cause of the injury in question." Preferred Accident Ins. Co. v. Musante, Berman Steinberg, supra, 133 Conn. 542. "To determine whether, under the applicable law, a third party defendant may be liable to the defendant for the claims asserted against the defendant by the plaintiff, it is important to recognize the nature of a third party action, and the natural consequences thereof. A third party complaint is premised on the plaintiff prevailing against the defendant third party plaintiff . . . Thus, for the purposes of a motion to strike the third party complaint on the ground that the third party defendants cannot, as a matter of law, be liable to the defendant for the claims by the plaintiff, it is necessary to assume that the jury found that the plaintiff established the elements of the cause or causes of action in the first party complaint against the defendant." Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. 331912 (October 20, 1995, Martin, J.).
It is necessary for the court to analyze NHT's allegations of negligence in its original complaint against Hungerfords. NHT alleges that Hungerfords "negligently and carelessly breached its duty of care to the New Haven Terminal in" failing to use proper materials to repair the pump, failing to use properly trained personnel to repair, inspect and install the pump, failing to properly inspect and test the pump prior to reinstallation, failing to properly oversee the repair, inspection and reinstallation of the pump, failed to ensure the parts of the pump were in good order and condition, and failing to notice or observe the dangerous condition of the pump before reinstallation. NHT further alleges in its complaint that "[t]he incompatibility of the O-Ring composition is a cause of the seal failure, which, in turn, caused the fuel leakage from the pump. Hungerfords does not dispute the fact that they installed an improper O-Ring on the mechanical seal of the pump. In fact, Hungerfords' November 17, 2005 letter to New Haven Terminal acknowledges that they believe that the incompatible O-Ring was the sole cause of the fuel leakage." Kenneth Industrial asserts that if the court were to assume that NHT prevailed in these claims against Hungerfords, then Hungerfords would be found actively negligent. Finally, a party asserting a claim for indemnification that is grounded in tort, must establish four separate elements. "These elements are: (1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [the third-party plaintiffs], was the direct, immediate cause of the accident and injuries; (3) that [the other tortfeasor] was in control of the situation to the exclusion of [the third-party plaintiff]; and (4) that [the third-party plaintiff] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698, 694 A.2d 788 (1997).
"[T]he determination of whether an act is negligent is a matter for the jury . . . as is the question of exclusive control . . . A party's actual knowledge and the reasonableness of his reliance on others are also to be determined by the trier of fact. Accordingly, the question of whether a party is primarily negligent and thereby precluded from indemnification from another tort-feasor is ordinarily one for the trier of fact." (Citations omitted.) Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573-74, 452 A.2d 117 (1982). Additionally, "[t]he causal relationship between a negligent act and damage is ordinarily one of fact." Busko v. DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972).
In the present case, Hungerfords has sufficiently alleged a cause of action for common law indemnification. Specifically, Hungerfords alleges Kenneth Industrial negligently represented and tendered to Hungerfords an O-Ring composed of a synthetic EPDM elastomer rather than Viton; that this negligence was the direct and immediate cause of the damages alleged by the plaintiff; that Kenneth Industrial was in control of the situation causing injury, to the exclusion of Hungerfords; and that Hungerfords had no reason to know or foresee that Kenneth Industrial would act negligently. Hungerfords' third-party complaint, therefore, sets forth each of the four separate elements that must be established in order to maintain a common-law action for indemnification. The determination of whether a party is primarily negligent and thereby precluded from indemnification is a matter for the jury.
For all of the above reasons, the motions to strike are denied.