Opinion
No. LLI CV 09 5006214S
May 4, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #131
ISSUE
The issue before the court is whether to grant the defendants' motion for summary judgment on the ground that there is no genuine issue of material fact in that the plaintiff is not entitled to common-law indemnification and cannot establish the elements required for that claim.
I FACTS
On August 5, 2009, the plaintiff, Physicians for Women's Health, LLC (PWH), filed a one-count revised complaint against the defendants, Essent Healthcare of Connecticut, Inc. d/b/a Sharon Hospital and Essent Healthcare, Inc. (collectively, Essent or the defendants), seeking common-law indemnification. The plaintiff's claim for indemnity arises out of the settlement of two consolidated medical malpractice actions (underlying action). The underlying action arose out of the labor and delivery of an infant child, Brianna Vincent, who was born on March 15, 2003, at Sharon Hospital. In the present case, the plaintiff's complaint alleges that on or about March 15, 2003, under the direct care, treatment, monitoring and supervision of the defendants, Heather Vincent gave birth to Brianna Vincent and both suffered severe, painful and permanent injuries. The complaint further alleges that the injuries sustained by Brianna and Heather Vincent were the direct and proximate result of the negligence of the defendants in that they failed to perform, facilitate and/or provide facilities for a timely and emergent cesarean section procedure. The plaintiff also alleges that the defendants had exclusive and direct control over the individuals and/or circumstances and/or negligent conduct giving rise to the injuries suffered by Brianna and Heather Vincent. The complaint further alleges that the plaintiff was unaware of the defendants' negligence, had no way of anticipating the defendants' negligent conduct, and could reasonably rely on the defendants not to be negligent in their care and treatment. According to the plaintiff, as a direct result of the negligence of the defendants, the plaintiff was caused to be a party to, and defend, a civil lawsuit initiated by Heather and Brianna Vincent. As a result, the plaintiff incurred substantial costs and expenses to its detriment.
Essent Healthcare of Connecticut, Inc. was a wholly-owned subsidiary of Essent Healthcare, Inc. and was doing business under the name Sharon Hospital.
Brianna Paige Vincent, ppa v. Essent Healthcare of Connecticut, Inc., Docket No 3:04-CV-0491 JBA; and Brianna Paige Vincent, ppa v. Physicians for Women's Health LLC, Docket No. 3:06-CV-00249 JBA.
All references to the plaintiff and the defendants includes reference to employees, agents, apparent agents or servants of the respective party.
On February 14, 2011, the defendants filed the present motion for summary judgment along with a supporting memorandum of law and evidentiary support. The defendants move for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff is not entitled to common-law indemnification and cannot establish the elements required for that claim. Specifically, the defendants argue that there is no genuine issue of material fact that the plaintiff was negligent and the plaintiff cannot establish that the defendants were in exclusive control of the situation. On March 1, 2011, the plaintiff filed an objection to the motion for summary judgment along with a supporting memorandum of law and evidentiary support arguing that there are genuine issues of material fact concerning the nature of the defendants' negligence and the issue of exclusive control. The defendants filed a reply memorandum on March 30, 2011.
The matter was heard on the April 4, 2011 short calendar. Additional facts will be presented as necessary.
II DISCUSSION A Summary Judgment Standard
"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." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., CT Page 10791 259 Conn. 527, 556, 791 A.2d 489 (2002)."In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
B Background
The underlying action arose out of the labor and delivery of an infant child, Brianna Vincent, who was born on March 15, 2003, at Sharon Hospital. The underlying action alleged that the cesarean section was not performed as soon as possible, within thirty minutes from the time it was ordered. The following parties were defendants in the underlying action: the plaintiff (PWH), the defendants (Essent Healthcare of Connecticut, LLC, Essent Healthcare, Inc., and Sharon Hospital, Inc.), Sharon Ob/Gyn Associates and Howard G. Mortman, M.D. The plaintiff owns Sharon Ob/Gyn Associates. Essent Healthcare is a hospital company which acquired Sharon Hospital in 2002. Dr. Mortman was the attending obstetrician/gynecologist at Sharon Hospital on March 15, 2003. Dr. Mortman's practice was part of Sharon Ob/Gyn Associates and therefore, Dr. Mortman is also associated with the plaintiff.
This information was culled from the plaintiff's memorandum in opposition to the defendants' motion for summary judgment.
The complaint in the underlying action alleged that Essent failed to exercise reasonable care and skill in the care and treatment provided to Heather and Brianna Vincent. The complaint also alleged that Dr. Mortman failed to exercise that degree of care and skill ordinarily and customarily used by physicians and surgeons specializing in obstetrics and prenatal medicine in the care and treatment provided to Heather and Brianna Vincent. The negligence alleged against Essent and Dr. Mortman included the failure to warn Heather Vincent that there was insufficient staff available and prepared to perform an emergency cesarean section. The underlying action was settled with no admission of liability by either Dr. Mortman or Essent. The present action for common-law indemnification followed.
The amended complaint in Brianna Paige Vincent, ppa v. Essent Healthcare of Connecticut, Inc., Docket No. 3:04-CV-0491 JBA, dated May 17, 2005, is attached to the plaintiff's revised complaint in the present case as exhibit A.
C Analysis
The defendants move for summary judgment on the ground that there is no genuine issue of material fact that the plaintiff was negligent and that the plaintiff cannot establish that the defendants were in exclusive control of the situation. The plaintiff objects arguing that the basic fact pattern that Dr. Mortman could not perform a cesarean section within the thirty-minute time frame because the defendants' nurses failed to timely open the operating room and notify the appropriate personnel establishes that the defendants were the party primarily liable for any damages and losses sustained by the plaintiff in the underlying action. Therefore, the plaintiff contends, the defendants are not entitled to summary judgment because there are genuine issues of material fact concerning the nature of the defendants' negligence and the issue of exclusive control. In reply, the defendants reiterate their position but also argue that tort reform renders the indemnification claim invalid.
1 Common-Law Indemnification
"Ordinarily there is no right of indemnity or contribution between joint tort-feasors." Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965). "The Kaplan case established a narrow exception to the general common law principle . . ." (Emphasis in original.) Hammond v. Waterbury, 219 Conn. 569, 576, 594 A.2d 939 (1991). "In Kaplan, [the court] held that there was an exception to the common law rule prohibiting contribution from among joint tortfeasors if the indemnitee could prove that: (1) the indemnitor was negligent; (2) such negligence was the direct cause of the damages; (3) the indemnitor was in control of the situation to the exclusion of the indemnitee; and (4) the indemnitee did not know or have reason to know of the indemnitor's negligence and could reasonably have relied on the indemnitor not to be negligent." Hammond v. Waterbury, supra, 576; see Kaplan v. Merberg Wrecking Corp., CT Page 10793 supra, 416. In other words, "[t]o assert a claim for indemnification under Kaplan, an out-of-pocket defendant must show that: (1) the party against whom the indemnification is sought was negligent; (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and the resulting injury . . .; (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent." Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).
"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 . . . 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, [the court has] 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." (Emphasis in original; internal quotation marks omitted.) Bristol v. Dickau Bus Co., 63 Conn.App. 770, 773, 779 A.2d 152 (2001).
In the present case, the defendants argue that they are entitled to summary judgment because the plaintiff cannot prove that (a) the defendants, as opposed to the plaintiff, were the actively negligent party and (b) the defendants had control of the situation to the exclusion of the plaintiff.
(a) Active and Passive Negligence
The defendants concede that, for the purposes of this summary judgment motion, the court must assume that the defendants were negligent in the care of Heather and Brianna Vincent. The defendants, however, argue that there is no genuine issue of material fact that the plaintiff cannot establish that the defendants' negligence was the direct cause of the damages in the underlying action because, in the underlying action, both the plaintiff and the defendants were separately charged with active negligence. According to the defendants, where the negligence of two or more parties immediately and directly contributes to the injury neither has a right to indemnification.
Under Kaplan, to sustain an indemnification claim, the plaintiff must show that the defendants' active negligence, rather than the plaintiff's own passive negligence, was the direct, immediate cause of the accident and the resulting injuries. See Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 416. " Kaplan imposes an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries, thus superseding the indemnitee's passive negligence." (Emphasis in original.) Smith v. New Haven, supra, 258 Conn. 66. "The presence of two tortfeasors is thus required for a viable claim of indemnification under Kaplan: one, whose passive negligence resulted in a monetary recovery by the plaintiff; and a second, whose active negligence renders him liable to the first by way of reimbursement." Smith v. New Haven, supra, 66.
The defendants contend that in order to determine if they are required to indemnify the plaintiff, the court must look at the underlying action to determine with what conduct the plaintiff was charged. According to the defendants, the complaint in the underlying action alleges that the injuries suffered by Heather and Brianna Vincent were caused by the failure of Dr. Mortman to exercise the degree and skill ordinarily and customarily used by physicians and surgeons specializing in obstetrics and prenatal medicine in the care and treatment provided to Heather and Brianna Vincent. Thus, the defendants argue, the imposition of liability on Dr. Mortman would have arisen from a finding that he was negligent in the ways alleged, all of which are affirmative misconduct. Therefore, if all of the allegations against Dr. Mortman were proved in the underlying action, then Dr. Mortman was actively negligent and, as such, the plaintiff cannot state a claim for indemnification against the defendants. If, on the other hand, the allegations against Dr. Mortman were not proved in the underlying action, then there would be no basis for a claim of indemnification.
In contrast, the plaintiff argues that it is not claiming that Dr. Mortman was negligent. Rather, it is the plaintiff's position that the defendants' failure to carry out its own duties, i.e. to open the operating room and timely notify the appropriate personnel, prevented Dr. Mortman from performing a cesarean section within thirty minutes after it was ordered. According to the plaintiff, in their joint duty of caring for Heather and Brianna Vincent, the defendants had an obligation to make staff and an operating room available to Dr. Mortman. The plaintiff further argues that any alleged negligent conduct by Dr. Mortman was a direct result of the defendants' primary negligence and, therefore, the indemnification claim falls under the Kaplan exception to the general rule that there is no right to indemnity or contribution between joint tortfeasors.
In Kaplan, the court found that the lower court "was correct in looking to the Superior Court file and the opinion of this [Supreme] court to ascertain the basis on which the present plaintiffs were held liable in the [underlying matter] . . . It is settled law that an indemnitee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered . . ." (Citations omitted; internal quotation marks omitted.) Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 413-14. It is well settled that a common-law indemnification claim may be pursued when the parties enter into a voluntary settlement agreement. Bristol v. Dickau Bus Co., supra, 63 Conn.App. 773-74. "As a matter of public policy, our law favors the voluntary settlement of civil disputes." Id., 773.
"[A] finding [in an underlying action] that a given defendant was liable to the plaintiff does not necessarily determine whether that responsibility was based on a passive negligence which might, therefore, entitle that defendant to a full reimbursement from other defendants based upon indemnification principles." Malerba v. Cessna Aircraft Co., 210 Conn. 189, 198, 554 A.2d 287 (1989). Where an underlying case was voluntarily settled, the party seeking indemnification must only "show that the negligence with which it had been found chargeable was passive or secondary" not "that its own negligence was passive or secondary . . ." (Emphasis omitted; internal quotation marks omitted.) Bristol v. Dickau Bus Co., supra, 63 Conn.App. 774.
In Bristol v. Dickau Bus Co., supra, 63 Conn.App. 775, where the parties entered into a voluntary settlement of the underlying matter, the court rejected the defendant's argument in the subsequent indemnification action "that any negligence found against the plaintiffs would have been based on the allegations of the complaints against the plaintiffs and, therefore, would have been based on their own actions and not the actions of the [defendant]." The court explained: "An indemnitee may be chargeable with personal negligence, independent of any negligence of the indemnitor, and still not be chargeable with active or primary negligence . . . As long as the plaintiffs were chargeable with some negligence . . . and as long as that negligence was not active or primary . . . the plaintiffs are not precluded from recovering under common-law indemnification." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id.
In the present case, the plaintiff was charged with some negligence. Nonetheless, "the question of whether a party is primarily negligent and thereby precluded from indemnification from another tortfeasor is ordinarily one for the trier of fact." Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573-74, 452 A.2d 117 (1982). "[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). The defendants did not present any evidence to establish that there is no genuine issue of material fact that the plaintiff, rather than the defendants, was the actively negligent party.
A genuine issue of material fact exists concerning the nature of both the plaintiff's and the defendants' negligence. Accordingly, the court holds that the motion for summary judgment is denied.
(b) Exclusive Control
Under Kaplan, to assert a claim for indemnification the plaintiff must show that the defendants were in control of the situation to the exclusion of the plaintiff. See Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 416. The defendants argue that there is no genuine issue of material fact that the defendants could not have been in control of the situation to the exclusion of the plaintiff because the defendants and Dr. Mortman owed independent duties to Heather and Brianna Vincent. Specifically, the defendants argue that the decision to have the cesarean section and when it was to be ordered rests solely upon the physician. If there was insufficient staff available to perform the cesarean section in the proper amount of time then that wrongdoing rests solely with the hospital. In other words, as the physician, Dr. Mortman had exclusive control over the decision he, as the physician, made including when to have the cesarean section, the hospital staff cannot and does not control Dr. Mortman or his decisions. Therefore, whatever negligence Dr. Mortman could have been held liable for was separate and apart from any negligence for which the defendants could have been held liable.
Moreover, the defendants contend that Dr. Mortman and the defendants were held to a different standard of care and therefore, the defendants had no ability to be in control of the situation to the exclusion of the plaintiff. According to the defendants, the reasonableness of Dr. Mortman's conduct is measured by the performance of other doctors under similar circumstances. Conversely, the reasonableness of the conduct of the hospital staff, including nurses, is measured by that of other hospital staff or nurses in the same or similar locality and under similar circumstances. Thus, the defendants contend that the failure of the nursing staff to follow a physician's instructions will result in liability only for the hospital not for the physician.
In support of their argument, the defendants submit portions of Dr. Mortman's uncertified deposition transcript in which Dr. Mortman testifies that he had separate responsibilities from those of the defendants. Moreover, the defendants rely on the line of cases interpreting General Statutes § 52-190a, which requires a plaintiff in a medical malpractice action to submit a written opinion letter from a similar health care provider. According to the defendants, the fact that, in the underlying action, Heather Vincent submitted two separate written opinion letters supports their contention that Dr. Mortman and the defendants were held to different standards of care.
All the deposition transcripts submitted by the parties in the present case were taken in the underlying action. Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In the present case, neither party has objected to the submission of uncertified deposition transcripts and the court will exercise its discretion to consider them.
In contrast, the plaintiff argues that the issue before the court is not whether a proper opinion letter was filed and therefore, the court need not determine whether Dr. Mortman and the defendants are similar healthcare providers and/or are held to different standards of care. Rather, according to the plaintiff, the issue before the court is whether the defendants had exclusive control over the situation, particularly providing a staffed operating room. The plaintiff contends that the question is not about Dr. Mortman's decision to order the cesarean section, but rather the issue is that the facilities were not adequately prepared so that Dr. Mortman could carry out the order. The plaintiff submits portions of the uncertified deposition transcripts of Dr. Mortman and nurses Theresa Vander Vennet, Gail Alonge, Dorothy Lutz and Carolyn Ann Missildine Salinas which, according to the plaintiff, demonstrate that the defendants' nurses failed to act properly, that Dr. Mortman relied on the defendants' nurses to prepare the facility and notify the team so that he could perform a cesarean section, and that these preparations were outside of Dr. Mortman's control.
"The Supreme Court has defined exclusive control over the situation to mean exclusive control over the dangerous condition that gives rise to the accident . . . Ordinarily, the question of exclusive control is a question of fact . . . Nonetheless, special circumstances may give rise to the question of whether, in light of the facts . . . any reasonable juror could find that the [indemnification] defendants had exclusive control of the situation. Under such circumstances, this issue becomes a question of law." (Citations omitted; internal quotation marks omitted.) CT Page 10798 Cavanaugh v. Howell, Superior Court, judicial district of Hartford, Docket No. CV 08 5018064 (May 27, 2009, Wagner, J.T.R.) ( 47 Conn. L. Rptr. 856); see Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 418 ("Whether or not one is in control of a situation is ordinarily a question of fact . . ."). "[I]n circumstances where the disagreement of the parties does not, upon close examination, turn upon any meaningful dispute about the alleged facts or a circumstance where under the factual scenario alleged, no reasonable juror could find that the . . . defendants had exclusive control over the situation, the issue should be decided by the court as a matter of law." (Internal quotation marks omitted.) Casadonte v. Northeast Property Group, Inc., Superior Court, judicial district of New London, Docket No. CV 10 6004476 (March 24, 2011, Cosgrove, J.).
In the present case, the defendants have not carried their burden of establishing that there is no genuine issue of material fact concerning which party had exclusive control over the situation giving rise to the injuries alleged in the underlying complaint. In the present case, the plaintiff's complaint alleges that "the situation" giving rise to the injuries suffered by Heather and Brianna Vincent was the lack of prepared facilities for a timely and emergent cesarean section. The defendants have not presented any evidence to show that there is no genuine issue of material fact that they were not in exclusive control of the facilities. Rather, the defendants direct the court's attention to one question and the corresponding answer from Dr. Mortman's deposition transcript: "Q. And there are steps that need to be taken by the staff, separate and apart from what the doctor has to do, correct? A. Yes." In contrast, the various deposition transcripts submitted by the plaintiff indicate that Dr. Mortman ordered the "stat" cesarean section at 6:51 a.m., was ready to perform the procedure by 7:15 a.m. but at 7:15 a.m. the operating room had not been opened and the anesthesiologist was not present; that it is the responsibility of the defendants' nurses to prepare the facilities and notify the appropriate personnel in a timely fashion when a "stat" cesarean section is ordered; and the defendants' nurses did not open the operating room as was required by protocol.
Dr. Mortman testified in his deposition that he ordered a "stat" cesarean section around 6:51 a.m. after receiving a call from nurse Salinas. In her deposition, nurse Salinas disputes that Dr. Mortman ordered a "stat" cesarean section, testifying that Dr. Mortman initially indicated at 6:51 a.m. that a cesarean section was needed but it was not until 7:14 a.m. that Dr. Mortman ordered the "stat" cesarean section. Later, nurse Salinas testified that in the 6:51 a.m. phone conversation with Dr. Mortman, Dr. Mortman told her that he would probably be performing an emergency cesarean section and that when nurse Salinas thereafter wrote in the chart "OR to be notified" that she understood it was an emergency cesarean section and attempted to communicate that to her supervisor.
Additionally, the defendants dispute what the actual "situation" was that gave rise to the injuries in the underlying complaint arguing that the "situation" was Dr. Mortman's decision to have the cesarean section. The defendants, however, did not present any evidence to show that there is no genuine issue of material fact that the "situation" which caused the injuries in the underlying action was Dr. Mortman's decisions rather than the lack of prepared facilities.
Accordingly, there is a genuine issue of material fact regarding exclusive control and for this reason, the motion for summary judgment is to be denied.
(c) Tort Reform
In its reply memorandum of law, the defendants argue that Connecticut's tort reform act, General Statutes § 52-572h, renders the plaintiff's indemnity claim invalid. According to the defendants, the only indemnity claims compatible with the tort reform act are those under a contract or where there is vicarious liability, e.g. principal/agent, employer/employee or owner/driver. The defendants contend that no court has addressed this specific issue and direct the court to Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 699-700, 535 A.2d 357 (1988), which interpreted the product liability act, General Statutes § 52-572o, to abrogate common-law indemnification. The defendants argue that the reasoning in Kyrtatas applies to claims for common-law indemnification in negligence cases and supports the argument that indemnity claims not based on contract or vicarious liability should not be permitted in negligence cases.
General Statutes § 52-572h(c) provides: "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . ."
At least one court has already addressed the issue presented by the defendants explaining that "[t]hrough various enactments known collectively as Tort Reform I and Tort Reform II . . . the legislature enacted our present apportionment statute, § 52-575h . . . This very legislative scheme expressly leaves the common-law right to indemnity against a joint tortfeasor intact, pursuant to General Statutes § 52-572h(j) . . . With regard to the scope of the impact of apportionment legislation upon indemnity issues arising in negligence cases, § 52-572h(j) provides: `This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of such indemnity obligation.' This final provision unequivocally affirms the existence of a right to indemnity among joint tortfeasors." (Citation omitted; internal quotation marks omitted.) Cuccaro v. Elm Regency Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV 07 5002887 (November 17, 2008, Rubinow, J.).
Moreover, the defendants' reliance on Kyrtatas v. Stop Shop, Inc., supra, 205 Conn. 694 is misplaced. Although the court did hold that the product liability act abrogated common-law indemnification under the specific facts of that case, the court's ensuing explanation limits the import of that holding to the present case: "We conclude that the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution under General Statutes § 52-572o. Subsection (b) of § 52-572o provides: `In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party.' . . . Subsection (c) of § 52-572o provides: `In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party.' . . . Subsection (d) of § 52-572o requires that the trial court render a judgment based on the jury's findings of comparative responsibility: `The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party.'"
"These three subsections cannot be reconciled with the common law doctrine of indemnification. Comparative responsibility is inconsistent with indemnification because the former allows a jury to assign liability in specific proportion among several defendants on the basis of the evidence presented while the latter doctrine arose in response to the common law prohibition against contribution, and applies only in situations in which a passive joint tortfeasor has no actual responsibility for a tort. Indemnification is also irreconcilable with the product liability act because the legislature in subsection (e) of § 52-572o has abolished the common law prohibition against contribution in the context of these suits: `If a judgment has been rendered, any action for contribution must be brought within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the right of action of the claimant against him and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution.'"
"Contribution and indemnification are based on fundamentally different principles. Parenthetically it perhaps should be pointed out that both an implied obligation to indemnify and contribution are based on equitable principles . . . But indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others . . . The product liability act by permitting actions for contribution has eliminated any reason for retaining the doctrine of indemnification in regard to this variety of suit.
"The legislature, by mandating the employment of comparative responsibility principles and by allowing contribution in the context of product liability suits, has demonstrated its intent to abrogate the doctrine of common law indemnification in that area." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 699-701.
Unlike the product liability act, there is no indication in General Statutes § 52-572h that the legislature meant to abrogate common-law indemnification principles. Rather, as noted by the court in Cuccaro v. Elm Regency Ltd. Partnership, supra, Superior Court, Docket No. CV 07 500 887, "the common-law right to indemnity against a joint tortfeasor [was left] intact, pursuant to General Statutes § 52-572h(j)." This court is persuaded by the reasoning of the court in Cuccaro and accordingly finds that General Statutes 52-572h does not preclude the plaintiff from pursuing a common-law indemnification claim against the defendants.
III CONCLUSION
Genuine issues of material fact exist concerning the determination of active and passive negligence as well as which party had exclusive control over the situation. Moreover, tort reform has not obviated the common-law cause of action for indemnification in negligence cases. Therefore, the defendants' motion for summary judgment is hereby denied.
CT Page 10802