Opinion
No. CV-02-0099809
February 22, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
During August 2002, the plaintiffs, Raymond Pietruszka and Paula Pietruszka, negotiated an agreement for the purchase of real property owned by the defendants, Carlos Machado and Maria Machado, and a closing was held on August 23, 2002. The plaintiffs have now brought this action against the Machados as well as Joan Hughes d/b/a Kowalski Company, Marilyn Phillips, The DeWolfe Company, Inc. and Gregg Doonan. The complaint alleges that, during negotiations for the sale of real estate, the Machados falsely represented that the plumbing, well water system and drinking water on the property were problem-free, functioning normally and of good quality, and that all the defendants represented that the water pump and well water system were regularly maintained as required.
The original complaint, dated November 12, 2002, was subsequently revised, and the operative pleading is the Revised Amended Complaint, dated January 9, 2004. In the initial complaint, the plaintiffs also named as a defendant Marvin H. Schaefer Inspection Services, Inc., but the claim against Schaefer Inspection Services was previously dismissed on the basis of an arbitration clause in the agreement between the parties. Additionally, the defendant Joan Hughes d/b/a Kowalski Company was added as a third-party defendant by motion on April 7, 2003, after the plaintiffs had previously misidentified the party as Kowalski Realtors LLC in the first complaint.
The Machados have filed a cross complaint against co-defendants Joan Hughes d/b/a Kowalski Company (Hughes) and Marilyn Phillips (Phillips), seeking indemnification from damages resulting from any judgment entered against them in the underlying complaint. The cross complaint alleges that the Machados engaged Hughes, a licensed realtor, acting through Phillips, a real estate agent, for the sale of their residential real estate. It further alleges that Phillips presented to the Machados certain disclosure reports, including a "Connecticut Department of Consumer Protection Residential Property Condition Disclosure Report" and a "Supplement to: Residential Property Condition Disclosure Report." The Machados maintain that Phillips assisted them in the completion of said reports and advised them that there was no need to disclose on those reports any "problems" that had been solved or corrected if no problem existed at present. In reliance on Phillips' advice, the Machados allege that they reported on the disclosure reports that there were no plumbing system problems or drinking water problems. The answers on these reports form the basis of the plaintiffs' claims that the Machados intentionally and negligently misrepresented the condition of the plumbing and well water system on their property.
This court has previously granted summary judgment in favor of Joan Hughes d/b/a Kowalski Company and Marilyn Phillips as to the plaintiff's complaint.
Hughes and Phillips have now moved to strike the Machados' cross complaint in its entirety on the grounds that it fails to allege all of the elements necessary for a claim of indemnification, and that a claim for indemnification in tort based on negligence in preparing a statutory disclosure report should not be allowed as a matter of law. "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). The court must "take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
In their cross complaint for indemnification, the Machados allege that it was the negligent acts or omissions of Hughes and Phillips, rather than their own negligence, that caused injury to the plaintiffs in that they acted on Phillips' advice when they reported that the plumbing system, well water and drinking water were problem-free. Hughes and Phillips contend that "[b]y its very allegations, the Cross Complaint concedes that the moving defendants did not have exclusive control over the completion of the disclosure report." They argue that an action for indemnification in tort cannot be maintained absent a showing of exclusive control even if it otherwise meets the standards for common-law indemnification. In opposition, the Machados maintain that the cross complaint presents a legally sufficient claim for relief in that the Machados' reliance on Phillips' advice in completing the disclosure reports formed the sole basis for the underlying action filed by the plaintiffs.
"Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable." Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). A claim for indemnification may arise by contractual relationship or by common law grounded in tort. Ruby v. Chase Manhattan Bank, Superior Court, judicial district of New Britain, Docket No. CV 00 0505309 (March 25, 2002, Quinn, J.) ( 31 Conn. L. Rptr. 683). "A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself." (Internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).
In the absence of a contract to indemnify, a party is entitled to indemnification "only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct." Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). "[I]f a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the `active or primary negligence' of the party against whom reimbursement is sought." Id.
"In order to establish that a party was primarily negligent and, thus, liable to indemnify a secondarily negligent tortfeasor, the following essential elements must be proved: (1) the party must have been negligent; (2) its negligence rather than another's was the direct and immediate cause of injury; (3) it had exclusive control over the situation; and (4) the negligent party seeking indemnification did not know of the charged party's negligence, had no reason to anticipate it and could reasonably have relied on the charged party to act without negligence." (Internal quotation marks omitted.) Atkinson v. Berloni, supra, 23 Conn.App. 326.
In the present case, the facts alleged in the cross complaint are insufficient to support a claim for indemnification arising in contract or at common law. "Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification." (Internal quotation marks omitted.) Scheuritzel v. Ajax Construction Co., Superior Court, judicial district of New London, Docket No. 126233 (August 23, 2004, Hurley, J.T.R.). Here, the cross complaint alleges no facts that would support the existence of any express or implied contract to indemnify, and it is thus necessary to analyze the facts under the four-part test for common-law indemnification.
While the Machados presented an argument before this court for contractual indemnification based on the listing agreement they had with Hughes and Phillips, the cross complaint does not reference this contract or any other contract.
First, the cross complaint fails to allege that Hughes and Phillips were primarily negligent or that they were the direct cause of the plaintiffs' injuries. The cross complaint merely states that the plaintiffs' alleged injuries occurred after the Machados acted on the advice of Phillips when completing the disclosure reports. More important, however, even if Phillips did act negligently in advising the Machados, their claim would still fail without a showing that completion of the disclosure reports was within the exclusive control of Hughes and Phillips. See Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416, 207 A.2d 732 (1965) (holding that control is one of the essential elements of a negligent indemnification claim). This they have not alleged.
Moreover, the exclusive control element of the indemnification analysis cannot be satisfied on the facts presented. The cross complaint neither alleges that Hughes and Phillips had exclusive control over completion of the disclosure reports, nor could such a conclusion be inferred from the other facts alleged. Rather, it alleges that Phillips provided advice to the Machados, who in turn filled out the reports as they deemed appropriate, albeit based at least in part on Phillips' advice. The fact that Phillips may have advised the Machados to complete the reports in a way that has allegedly resulted in injury to the plaintiffs, does not place Phillips and/or Hughes in the position of having maintained exclusive control over the situation, as the ultimate control over the way the reports were completed rested with the Machados.
The motion to strike is therefore granted for the reason that the cross complaint fails to establish a legally sufficient claim for relief under either a contractual or common-law theory of indemnification.
Jonathan E. Silbert, Judge