Opinion
No. CV02 0282526-S
January 20, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE #128
FACTS
The plaintiff filed suit against the defendant, Evergreen Nursery, Inc. (Evergreen) for injuries she sustained as a result of a fall in a parking lot on the premises of Southington Savings Bank. At the time of her fall, the plaintiff was an employee of Southington Savings Bank, now known as BankNorth (BankNorth). The plaintiff claims her injuries were the result of Evergreen's negligence in failing to sand and remove snow and ice from the premises.
BankNorth intervened in this action as permitted by General Statutes § 31-293(a) to recover its workers' compensation payments to the plaintiff. Evergreen, in turn, filed a counterclaim against BankNorth for common-law indemnification. In its counterclaim, Evergreen alleges that at the time of the plaintiff's fall, BankNorth was in control of the situation relevant to the parking area, to the exclusion of Evergreen; any injuries and damages suffered by the plaintiff were due to the active or primary negligence of BankNorth; BankNorth was negligent in that it knew or should have known ice formed on its parking lot between February 7, 2001 and February 8, 2001, and failed to remove the ice or take steps necessary to have the ice removed; and Evergreen had no knowledge of the negligence of BankNorth, had no reason to anticipate it would be negligent and relied upon it not to be negligent.
Section 31-293 of the General Statutes in relevant part states: "(a) [A]ny employer . . . having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee."
On June 19, 2003, BankNorth moved to strike the counterclaim on the ground that Evergreen could not overcome the exclusivity provision of the Workers' Compensation Act, General Statute § 31-284(a), because it failed to allege an independent legal relationship. While the allegations of the counterclaim were sufficient to support a claim for common-law indemnification; Kaplan v. Merberg Wrecking Corp, 152 Conn. 405, 207 A.2d 306 (1999); they were insufficient, however, as a matter of law, to overcome the workers' compensation exclusivity bar. Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989). BankNorth's motion to strike was granted on July 7, 2003.
The exclusive remedy provision of the Workers' Compensation Act, General Statutes § 31-284(a) provides, in relevant part: "[a]n employer . . . shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . ."
On July 17, 2003, Evergreen filed a substitute pleading, an amended counterclaim, pursuant to Practice Book Section 10-44. In addition to the allegations set forth above and contained in its stricken counterclaim, Evergreen has included the following: "[P]ursuant to a contract, dated October 25, 2000, between Evergreen Nursery and [BankNorth], there existed between Evergreen Nursery and [BankNorth] an independent legal relationship."
This action is now before the court on BankNorth's motion to strike Evergreen's amended counterclaim on the ground that it is legally insufficient inasmuch as Evergreen fails to allege sufficient facts to overcome the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284. Evergreen has filed a memorandum in opposition to the motion.
DISCUSSION
"[A] motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "If the facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "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). "What is necessarily implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotations marks omitted.) Faulkner v. United Technologies Corp., supra, 588. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., CT Page 86 224 Conn. 210, 215, 618 A.2d 25 (1992).
"When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care . . ." (Emphasis added; internal quotation marks omitted.) Ferryman v. Groton, supra, 212 Conn. 144-45.
Several Superior Courts have addressed the question of how specific the allegations of a pleading must be in order to set forth a "basis" for finding an "implied promise of indemnity" or "breach of an independent duty." "Although establishing that an implied promise to indemnify or an independent duty existed between proposed third-party plaintiffs and those sought to be impleaded may overcome the workers' compensation exclusivity bar, courts have construed this exception very narrowly . . ." Peterson v. Sabini, Superior Court, judicial district of Fairfield at Bridgeport, Docket No CV 95 0327596S (August 23, 1996, Hauser, J.).
For example, in Mendillo v. Carpet Cleaning of Wolcott, Superior Court, judicial district of Waterbury, Docket No. 101738 (March 15, 1993, Sylvester, J.), the court granted the employer's motion to strike the indemnification counterclaim on the ground that the counterclaimant only alleged a contractual relationship and not an independent legal duty to indemnify the counterclaimant. See also Rodrigues v. Kachmarik, Superior Court, judicial district of Waterbury, Docket No. 095210 (April 15, 1992, Meadow, J.) ( 6 Conn. L. Rptr. 312) (the motion to strike a special defense was denied on the ground that Ferryman requires the showing of not only an independent relationship, but also an independent duty); Maslansky v. First Assembly of God, Superior Court, judicial district of Danbury, Docket No. CV 01 034545 (February 25, 2003, White, J.) (the court denied the employer's motion to strike the indemnification counterclaim where the defendant alleged a contractual relationship whereby the intervening plaintiff agreed to perform its work with due care and in a reasonably safe and workmanlike manner); Degraca v. Stearns, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 99 0509934 (February 26, 2003, Aurigemma, J.) (the court denied a motion to strike a claim for indemnification against the employer of an injured plaintiff where the allegations specified the duties owed by the employer pursuant to a contract, including a duty of indemnity for defective work and for claims of every kind or nature that may arise in connection with the agreement); Rowan v. Briasco, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 990088887 (January 25, 2000, Gordon J.) ( 26 Conn. L. Rptr. 309) (court granted intervener's motion to strike the counterclaim for indemnification where the counterclaimant alleged an independent legal relationship pursuant to a contract for home improvements without pointing to any specific contractual provision which could arguably give rise to an independent duty); Britt v. Danziger Development, Superior Court, judicial district of Waterbury, Docket No. CV 00 0157399 (November 27, 2000, Rogers, J.) ( 28 Conn. L. Rptr. 625) (the court denied a motion to strike where the counterclaimants alleged that they "entered into a contract with Troy Security Systems, Inc wherein Itro agreed to . . . perform work . . . in a reasonably safe and workmanlike manner"); but see Buonanducci v. Hoffman, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 571650 (March 17, 1998, Hennessey, J.) (the court held that the allegation of a contract, which creates an independent legal relationship between the parties, is sufficient to maintain the counterclaim. "Whether the contract creates the necessary duty to indemnity that would preclude the operation of the exclusivity provision of the Workers' Compensation Act must be decided upon evidence presented at trial").
In declining to find the existence of an independent duty between the third-party counterclaimants and their employer, the court in Peterson v. Sabini, supra, denied the defendant's motion to implead the plaintiff's employer on the grounds that the proposed third-party complaint alleged "no more than simple negligence premised upon a duty owed to the plaintiff, not to the defendants . . . [and] . . . that [the employer] breached a contract between them without pointing to any specific contractual provision which could arguably give rise to an independent duty." Id. Likewise, in Korch v. Brooklyn General Repair, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. 059896 (April 30, 2001, Foley, J.), the court granted the motion to strike on the ground that an allegation stating that "an independent legal relationship" existed was insufficient where the exact basis of that relationship was not specified.
This court has considered those cases including the following legal principles:
1. "It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Gazo v. Stamford, supra, 255 Conn. 260.
2. "Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove." (Emphasis added) Practice Book § 10-2.
3. "What is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn. 626.
4. "It is unnecessary to allege any promise or duty which the law implies from the facts pleaded." (Emphasis added) Practice Book § 10-4.
In Ferryman, the facts pleaded disclosed to the court that an implied independent legal duty, at least, potentially existed. In the present case, Evergreen has alleged the existence of a contract dated October 25, 2000, and an independent legal relationship. Evergreen, however, has not alleged an express or implied promise of indemnity or an independent legal duty and breach thereof, nor has it pleaded facts from which such can be implied. The defendant's counterclaim sounds in negligence and the duties referred to are those claimed to be owed to the plaintiff. The defendant has failed to allege an independent legal duty which would overcome the exclusivity bar or, at least, facts which disclose that such a duty potentially exists.
Accordingly, the intervening plaintiff's motion to strike the counterclaim is granted.
BY THE COURT
TANZER, JUDGE.