Opinion
No. X06-CV-02-0176332 S
October 28, 2003
MEMORANDUM OF DECISION
This action involves the allegedly improper disposal of construction debris and demolition material, including hazardous waste, at an unauthorized disposal site. The plaintiff, which was the general contractor responsible for demolition of an existing structure has sued a wide variety of defendants involved in that demolition, including the current property owner, the former property owner, the demolition subcontractor, and the haulers of the demolition debris. The plaintiff has also joined as defendants in this litigation entities it claims are responsible for dumping construction and demolition debris from other properties at the same unauthorized disposal site. The plaintiff's complaint seeks damages it claims it suffered as a result of the unauthorized disposal of the demolition debris and asks for declaratory relief with respect to its responsibility and that of the defendants for paying the cost to remediate the unauthorized disposal site. Pending before the court are motions to dismiss and motions to strike filed by various defendants seeking to expunge a number of the counts of the plaintiff's complaint.
Pursuant to a scheduling order issued by the court, McWeeney, J., on June 5, 2003, the parties were ordered to file all motions to dismiss and motions to strike on June 30, 2003.
The plaintiff's amended complaint alleges the following facts. The plaintiff Suitt Construction Company, Inc. ("Suitt") was hired by the defendant Bottling Group LLC d/b/a The Pepsi Bottling Group ("Pepsi") as the general contractor for the demolition of an existing structure on property purchased by Pepsi at 355 Benton Street, Stratford, Connecticut. The property was previously owned by the defendant American Frozen Foods, Inc. ("AFF"), who retained the defendant Accurate Insulation and Asbestos Removal, Inc. ("Accurate Insulation") to remove asbestos-containing material from the property. The defendant JRP Wrecking LLC ("JRP Wrecking") performed demolition and removal activities at the 355 Benton Street property pursuant to a subcontract with Suitt. JRP Wrecking hired a number of hauling subcontractors — the defendants George Patrick d/b/a JRP Demolition Co. ("JRP Demolition"), Michelle Dalling Daughters, LLC ("Dalling, LLC"), Harry Dalling d/b/a Harry Dalling Trucking ("Harry Dalling Trucking"), Dalling Construction, Inc. ("Dalling Construction") and Beryl Davis d/b/a Stoney Trucking ("Stoney Trucking") — to remove construction and demolition debris from the property. The hauling subcontractors, without the knowledge of Suitt, disposed of approximately eighteen truckloads of demolition material on property at the defendant Academy of Our Lady of Mercy Lauralton Hall High School ("Lauralton Hall"), a site which was not authorized to receive construction debris.
The plaintiff further alleges that several entities discarded on the Lauralton Hall property construction and demolition materials from construction projects other than the 355 Benton Street project. These entities included JRP Wrecking, Dalling LLC, the defendant P. Francini and Company, Inc. ("Francini"), the defendant City of Milford, the defendant Kristian B. Larsen, Inc. ("Larsen"), the defendant C L Demolition, Inc. ("C L Demolition"), and the defendant C L Contracting, Inc. ("C L Contracting"). The plaintiff also asserts that the defendant Milford Bank arranged for the disposal of construction debris at the Lauralton Hall site.
The plaintiff's amended complaint consists of thirteen counts: the first count seeks a declaratory judgment against the defendants involved in the disposal of construction and demolition debris at the Lauralton Hall site; the second count seeks a declaratory judgment concerning the plaintiff's rights under its contract with Pepsi; the third count asserts a breach of contract claim against Pepsi; the fourth count asserts a breach of contract claim against JRP Wrecking; the fifth count asserts negligence claims against, inter alia, Pepsi and Accurate Insulation; the sixth count asserts claims of recklessness against, inter alia, Pepsi and Accurate Insulation; the seventh count sets forth claims of negligence against JRP Wrecking, Dalling LLC, Dalling Construction, Harry Dalling Trucking and Stoney; the eight count asserts recklessness claims against the same defendants; the ninth count seeks contribution from all defendants; the tenth count seeks indemnity from all defendants; the eleventh count asserts a claim of contractual indemnity against, inter alia, JRP Wrecking; the twelfth count sets forth a quantum meruit claim against Pepsi; and the thirteenth count asserts unjust enrichment against Pepsi.
At oral argument on the pending motions, the plaintiff agreed to withdraw the sixth count of its amended complaint.
The defendants have filed both motions to dismiss and motions to strike various counts of the plaintiff's complaint. The law governing this court's consideration of such motions is well-established. In ruling on a motion to dismiss, the court must take the facts to be those alleged in the complaint, including those necessarily implied, construing them in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308 (1998).
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214 (1992). "The role of the trial court is to examine the complaint, construed in favor of the plaintiffs, to determine whether the pleading party has stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378 (1997).
I MOTIONS TO DISMISS AND TO STRIKE THE FIRST COUNT
The defendants Dalling LLC, Larsen, Lauralton Hall and Milford Bank have asked the court to dismiss or strike the first count of the plaintiff's complaint which seeks a declaratory judgment concerning the parties' respective obligations to pay for the cost to clean up the Lauralton Hall site. The motions assert a variety of grounds which I will address in turn.
A Ripeness
The moving defendants maintain that the first count must be dismissed because it is not yet ripe for adjudication. They contend that the court lacks subject matter jurisdiction as the plaintiff has not alleged that any action, such as legal or administrative proceedings, has been taken against it or that any judgments or prejudgment remedies have been obtained seeking reimbursement for costs to remediate the Lauralton Hall disposal site. For the following reasons, I do not agree that the first count of the complaint fails to present a justiciable issue.
The Connecticut Supreme Court has recently opined on the doctrine of justiciability and its opinion is particularly instructive with respect to the issues before the court in this case. See Milford Power Co. v. Alstom Power, Inc., 263 Conn. 616 (2003). An issue regarding justiciability implicates the court's subject matter jurisdiction and must be resolved as a threshold matter. Id., 624. "[R]ipeness is the sine qua non of justiciability." (Quotation marks and citations omitted.) Id. The purpose of the requirement that a claim be ripe for adjudication is to prevent courts from entangling themselves in abstract disagreements. Id., 626. In determining that a case fulfills the requirement of ripeness, the court must be satisfied "that the case before the court does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." Id.
While the procedure established by statute and practice book for the issuance of a declaratory judgment, see General Statutes § 52-29 and Practice Book § 17-54, provides a valuable tool by which litigants may resolve uncertainty of legal obligations, a declaratory judgment action is nonetheless limited to resolving controversies that are justiciable. Id., 625. The declaratory judgment provisions do not create jurisdiction where it would not otherwise exist. Id.
In Milford Power Co. v. Alstom Power, Inc., the plaintiff power company, which had contracted with the defendants for certain engineering, procurement and construction services related to the construction of an electric power generating plant, sought a declaratory judgment to determine whether an accident during construction entitled the defendants to make a claim for additional time or money to complete construction under a force majeure provision of the parties' contract. The defendants filed a motion to dismiss contending that action was premature because they had not yet made a claim for additional time or money to construct the project. The trial court denied the motion to dismiss. The Supreme Court reversed, finding that there was no justiciable controversy pending before the court. The Supreme Court's decision hinged on the fact that the defendants, though giving notice to the plaintiff under the contract that a force majeure event had occurred, had not yet claimed that they were entitled to more money or time to complete the project. Without such a claim of entitlement, there existed no actual dispute, only a hypothetical one. "In other words, because the plaintiff's claims were contingent on the outcome of a dispute that had not yet transpired, and indeed might never transpire, the injury was hypothetical and, therefore, the claim was not justiciable." Milford Power Co. v. Alstom Power, Inc., supra, 263 Conn. 627.
In this case, in contrast to the situation in Milford Power Co., there has been a demand for payment and a claim of entitlement. According to the plaintiff's complaint, Pepsi initiated a plan to completely remove from the Lauralton Hall disposal site all the improper fill without regard to its source. The plaintiff's complaint further alleges that Pepsi has demanded that Suitt reimburse Pepsi for all its expenditures associated with the removal activities in the estimated amount of $2.1 million. Pepsi has further setoff its removal costs against sums owed Suitt pursuant to their initial contract.
Moreover, on September 24, 2003, Pepsi filed a nine-count counterclaim in this action against Suitt requesting, inter alia, reimbursement for the costs it incurred in connection with the investigation, removal and disposal of material from the Lauralton Hall disposal site.
The purpose of the ripeness doctrine is "to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Id., 626. Therefore, the court must be satisfied that the case before it does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire. Id. The case before this court is neither hypothetical nor contingent upon the occurrence of some future event. Pepsi has both demanded payment of its remediation costs from Suitt and has offset those costs against funds it would otherwise owe Suitt. Consequently, the plaintiff's claim regarding the allocation of responsibility for remediation of the Lauralton Hall site is justiciable.
B Standing
Dalling LLC, Larsen, Lauralton Hall and Milford Bank have also moved to dismiss the first count of the plaintiff's complaint on the grounds that Suitt lacks standing to bring a claim based on General Statutes § 22a-452(a). Specifically, the moving defendants maintain that the plaintiff's complaint fails to allege that Suitt contained, removed or otherwise mitigated the effects of the solid and hazardous waste at the Lauralton Hall disposal site and that it may not bring an action under § 22a-452(a) in the absence of such allegations. I do not agree.
Section 22a-452(a) provides: "Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby."
In Knight v. F.L. Roberts Company, Inc., 241 Conn. 446 (1997), our Supreme Court addressed the issue of whether § 22a-452(a) requires that a party seeking reimbursement for cleanup costs pursuant to the statute must actually have participated directly in the removal, containment or mitigation of the pollution or contamination. The court held direct participation was not required. The court concluded that payment to a third party who expended funds to contain, remove or otherwise mitigate the contamination was sufficient. Id. 472.
In this case, Suitt has alleged in its complaint that it has, in effect, made payment to Pepsi for the costs incurred by Pepsi in containing, removing or otherwise mitigating the effects of the illegal dumping on the Lauralton Hall site. Suitt alleges that Pepsi has offset funds otherwise owed Suitt pursuant to its contract with Pepsi as reimbursement for a portion of Pepsi's cleanup costs. While Suitt's payment in this context is an involuntary one, the defendants have not offered a principled basis for a determination that the right to seek reimbursement under the statute should only apply to parties that have voluntarily paid to remediate pollution or contamination. In light of Suitt's allegation that funds otherwise due it have been used by Pepsi to reimburse Pepsi for its cleanup costs, I find that Suitt has standing to seek its own reimbursement under § 22a-452(a).
In fact, cleanup efforts are often made only pursuant to an order from the Connecticut Department of Environmental Protection and under the threat of sanctions. Pepsi's remediation efforts in this case resulted from just such an order.
C Culpability
Dalling LLC, Larsen, Lauralton Hall and Milford Bank have also moved to dismiss or strike the first count of Suitt's complaint on the grounds that it fails to allege that their actions in discarding or receiving construction debris and demolition material at the Lauralton Hall property were culpable as required by § 22a-452(a). I do not agree.
Section 22a-452(a) provides that a party "shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation." (Emphasis supplied.)
As its express language indicates, § 22a-452(a) does not impose strict liability upon parties whose actions cause pollution or contamination. Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 229 Conn. 455, 9 Conn. L. Rptr. 77 (1994). "The use of the phrase `resulted from the negligence or other actions of such person, firm or corporation' in § 22a-452(a) can be interpreted to mean only that the legislature intended § 22a-452(a) to be based on culpability and not merely causation." Connecticut Resources v. Refuse Gardens, 43 Conn. Sup. 83, 90 (1993), aff'd., 229 Conn. 455 (1994).
Contrary to the assertion of the moving defendants, Suitt's complaint alleges that the actions of each of the moving defendants were culpable. The complaint asserts that Lauralton Hall established an unlicensed landfill and sought fill from surrounding area construction sites. It further alleges that Dalling LLC and Larsen disposed of construction and demolition debris and the Milford Bank arranged for the disposal of construction material at the unlicensed disposal site established by Lauralton Hall. These allegations that the defendants solicited, arranged for and disposed of solid waste at a disposal site not licensed to receive such material are sufficient to satisfy the culpability requirement of § 22a-452(a).
The plaintiff claims that a license was required pursuant to General Statutes § 22a-208c for the Lauralton Hall site to receive construction material and demolition debris.
Larsen also claims that the plaintiff lacks standing to assert a claim for reimbursement because "the plaintiff makes no allegations whatsoever relating to the pollution of the waters of the state, the subject of § 22a-452." While the Connecticut Water Pollution Control Act, General Statutes § 22a-416 et seq., of which § 22a-452 was an amendment, was, at the time of its enactment, intended as "a declaration of war against water pollution," see Knight v. F.L. Roberts and Company, Inc., 241 Conn. 446, 473 (1997), it has since been amended so that it is not limited to pollution of the waters of the state. Connecticut Resources v. Refuse Gardens, 43 Conn. Sup. 83, 90 (1993), aff'd., 229 Conn. 455 (1994).
D Lack of Precision
Dalling LLC, Lauralton Hall and Milford Bank maintain that the first count of the plaintiff's complaint which seeks declaratory relief must be dismissed or stricken because its prayer for relief fails to state with precision the declaratory judgment desired as required by Practice Book § 17-56(a)(2). I do not agree.
The prayer for relief contained in the plaintiff's amended complaint requests "a declaration determining the pro rata contributions, if any, that the parties must make to Pepsi, Suitt and/or any other appropriate parties with respect to the costs incurred in connection with the removal activities conducted relative to the Lauralton Hall site." Its language adequately apprizes the parties and the court of the nature and scope of the declaration sought by the plaintiff. Accordingly, it is sufficiently precise to satisfy the requirements of Practice Book § 17-56(a)(2).
E Insufficient Allegations Regarding Larsen
Larsen contends that the first count of the plaintiff's complaint should be stricken because it falls to allege that Larsen disposed of any materials at the Lauralton Hall site. I am not persuaded.
Larsen has also moved to strike the ninth and tenth counts of the plaintiff's complaint for the same reason. That request is similarly denied.
Paragraph 49 of the plaintiff's complaint alleges that "several entities" disposed of construction and demolition debris on the Lauralton Hall property. The complaint then goes on to identify the entities that the plaintiff alleges disposed of such material on the Lauralton Hall site. Paragraph 55 identifies Larsen as having disposed of brick, concrete, and elevator pit fill from Milford Bank. While the complaint does not explicitly state that these materials were discarded at the Lauralton Hall property, this allegation can reasonably be inferred.
II MOTIONS TO DISMISS AND TO STRIKE THE FIFTH COUNT
Pepsi has moved to strike and AFF and Accurate Insulation have moved to dismiss the fifth count of the plaintiff's amended complaint which asserts claims of negligence against Pepsi, AFF, and Accurate Insulation. Pepsi contends that Suitt has failed to allege facts sufficient to set forth the essential elements of negligence: breach of a duty, causation and actual injury. AFF and Accurate Insulation argue that the plaintiff's negligence claim is not ripe because it is contingent on the outcome of the contract dispute involving Suitt and Pepsi. I do not agree with the defendants' claims.
The fifth count of the plaintiff's amended complaint alleges that Pepsi, AFF and Accurate Insulation each owed Suitt a duty to use reasonable care in disclosing any adverse environmental conditions at the Benton Street property and that each breached its duty by failing to disclose information relating to the presence of additional contamination on the Benton Street property. Suitt alleges the defendants' breach caused it damage in that Pepsi repudiated its contract with Suitt and Suitt has been exposed to potential liability for clean-up costs.
In ruling on a motion to strike, the court must construe the complaint broadly and realistically, rather than narrowly and technically, and in the manner most favorable to sustaining its legal sufficiency. Gazo v. Stamford, 255 Conn. 245, 260 (2001).
Pepsi maintains that Suitt has failed to adequately allege a duty owed to Suitt because Suitt has failed to identify the source of any special relationship between the parties or any provision in their contract creating such a duty. Privity, however, is no longer a requirement for the recognition of a duty. Zapata v. Burns, 207 Conn. 496, 516 (1988). "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised." Coburn v. Lenox Homes, Inc., 173 Conn. 567, 575 (1977). "The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Id., 575-756. In light of the allegation of the complaint that Pepsi was responsible for ensuring that potentially adverse environmental conditions were disclosed and addressed prior to issuing the notice to proceed to Suitt, it was foreseeable that Suitt, the entity responsible for demolition of the property, would suffer the type of harm of which it complains by Pepsi's failure to adequately disclose the existence of contamination.
Pepsi further contends Suitt fails to allege that there actually existed any information as to the existence of additional contaminants. While it is true that the plaintiff's amended complaint fails to expressly allege such a fact that fact is necessarily implied in the complaint's allegation that Pepsi breached its duty by failing to disclose information relating to the presence of additional contamination on the Benton Street property. "[W]hat is necessarily implied in an allegation need not be expressly alleged." Gazo v. Stamford, supra, 255 Conn. 260.
Finally, Pepsi, AFF and Accurate Insulation seek to have fifth count expunged on the grounds that it fails to allege actual harm. They each contend that the possible exposure to future liability for clean-up costs is insufficient harm, while AFF and Accurate Insulation also maintain that Suitt's claim is not ripe because it is contingent on the resolution of Suitt's breach of contract dispute with Pepsi. The fifth count alleges more than the possible exposure to future liability. It further alleges that Suitt has been damaged by Pepsi's repudiation of their contract, by Pepsi's refusal to allow work on the project to proceed and by Pepsi's refusal to pay Suitt for labor and material provided to date. Such consequences are themselves harm and not contingent on the outcome of any breach of contract suit between Pepsi and Suitt.
III MOTION TO DISMISS AND STRIKE THE SEVENTH COUNT
Dalling, LLC has moved to dismiss and strike the seventh count of the plaintiff's complaint which asserts a claim of negligence on the grounds that it is not ripe and it fails to allege a legal duty or damages. I am not persuaded.
The seventh count of the plaintiff's amended complaint alleges that it hired JRP Wrecking to demolish and remove structures from the Benton Street property and that JRP Wrecking, in turn, hired its own subcontractors, including Dalling, LLC to remove that debris. The complaint further alleges that Dalling, LLC disposed of the demolition debris from the Benton Street property at Lauralton Hall School, a disposal site which was not licensed to accept such material. The complaint further alleges that Suitt was injured by the actions of Dalling, LLC in that Pepsi has repudiated its contract with Suitt, ordered Suitt not to proceed with any further work on the Benton Street property, not paid Suitt for amounts due under their contact, and back charged Suitt for its clean-up costs.
The contention of Dalling, LLC that the plaintiff's negligence claim is not ripe is unfounded for the reasons cited in part IA of this opinion.
Dalling, LLC also argues that Suitt has failed to allege facts showing that it owed a legal duty to the plaintiff because no contract existed between them and it was not foreseeable that Suitt would be harmed by the defendant's conduct in the manner described by the plaintiff. As stated previously, the existence of a legal duty is no longer dependent on privity. Zapata v. Burns, 207 Conn. 496, 516 (1988). Rather, its existence depends on the foreseeability that harm of the type suffered by the plaintiff will likely result. Coburn v. Lenox Homes, Inc., 173 Conn. 567, 575 (1977). In this case, it was foreseeable that Suitt's contract with Pepsi for the demolition and removal of construction debris from the Benton Street property would be adversely impacted in the ways alleged by the defendant's dumping of that debris at an unlicensed disposal site. Accordingly, Dalling, LLC owed the legal duty to Suitt to use reasonable care in the disposal of that demolition debris.
Dalling, LLC further asserts that the seventh count should be stricken because it fails to allege actual harm. As stated previously, the complaint's allegations that the actions of Dalling, LLC caused Pepsi to repudiate its contract with Suitt, refuse to pay Suitt for work it had completed, and back charge Suitt for clean-up costs incurred by Pepsi constitute sufficient allegations of actual harm.
IV MOTION TO STRIKE THE EIGHTH COUNT
Dalling, LLC has moved to strike the eighth count of the plaintiff's amended complaint on the ground that the complaint's factual allegations do not properly state a claim of recklessness. I agree.
The eighth count of the plaintiff's amended complaint claims that Dalling, LLC was reckless in arranging for the disposal of demolition debris at an unlicensed landfill. The factual allegations of the eighth count are the same as the factual allegations of the seventh count which asserts a claim of negligence. The only difference is a conclusory allegation contained in the eighth count that the defendant acted willfully, wantonly, recklessly and maliciously.
There is a wide difference between negligence and a reckless disregard of the rights or safety of others. Brock v. Waldron, 127 Conn. 79, 81 (1940). Recklessness entails more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Craig v. Driscoll, 64 Conn. App. 699, 720 (2001). Reckless conduct is highly unreasonable conduct, involving an extreme departure from ordinary care, where a high degree of danger is apparent. Dubay v. Irish, 207 Conn. 518, 533 (1988).
Our Supreme Court has expressly held that the bare allegation that the defendant acted recklessly is insufficient to state a common-law claim of recklessness. Dumond v. Denehy, 145 Conn. 88, 91 (1958). "Simply using the word `reckless' or `recklessness' is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." Id.
The factual allegations asserted by the plaintiff with respect to its claim of recklessness constitute nothing more than the failure to exercise a reasonable degree of care under the circumstances. Factual allegations which constitute no more than simple negligence cannot be transformed into claims of reckless misconduct merely by labeling them as such. Brown v. Branford, 12 Conn. App. 106, 110 (1987).
In light of the above, the defendant's motion to strike the eighth count of the plaintiff's amended complaint is granted.
V MOTIONS TO DISMISS AND STRIKE THE NINTH COUNT
Dalling, LLC, Larsen, Lauralton Hall, AFF, Milford Bank and Accurate Insulation have moved to dismiss or strike the ninth count of the plaintiff's amended complaint. In the ninth count, the plaintiff asserts a claim for contribution both under the common law and under General Statutes § 22a-452.
At the outset, it should be noted that the plaintiff should not have joined a common-law contribution claim with a statutory contribution claim. Pursuant to Practice Book § 10-36, separate and distinct causes of action should be placed in separate counts. See Falby v. Zarembski, 221 Conn. 14, 24 (1992) (common-law negligence claim and statutory claim should not have been pleaded in the same count of the complaint). Although no request to revise has been filed by the defendants asking that these causes of action be cleaved, I will treat them as separate causes of action because the defendants have asserted different claims against each.
With respect to the plaintiff's claim for contribution under § 22a-452, the defendants assert the same claims of lack of ripeness, lack of standing and lack of culpability which they asserted against the plaintiff's request for declaratory relief pursuant to § 22a-452 contained in the first count of its complaint. For the reasons cited in part I of this opinion, I find unpersuasive the defendants' claims.
With respect to the plaintiff's common-law claim for contribution, the defendants maintain that it should be stricken because there exists no right of contribution among joint tortfeasors at common law. I agree.
"Contribution is `a payment made by each, or by any, of several having a common interest or liability of his share in the loss suffered, or in the money necessarily paid by one of the parties in behalf of the others.' The right of action for contribution, which is equitable in origin, arises when, as between multiple parties jointly bound to pay a sum of money, one party is compelled to pay the entire sum. That party may then assert a right of contribution against the others for their proportionate share of the common obligation." (Citations and internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 639-40 (1999).
At common law, there is no contribution among joint tortfeasors. Caviote v. Shea, 116 Conn. 569, 575 (1933). See also Alvarez v. New Haven Register, Inc., 249 Conn. 709, 717 (1999). "Prior to October 1, 1986, this state adhered to the rules of joint and several liability with no contribution among joint tortfeasors. This doctrine can be stated succinctly. If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other; or the plaintiff might have sued either alone, and of course in the event of a recovery, that one would have been compelled to pay the entire amount of damages." Id. Although the legislature in 1986, abrogated by statute the common-law rule for certain negligence actions, see Donner v. Kearse, 234 Conn. 660 (1995), the ninth count of the plaintiff's complaint does not assert any such statutory claim. Accordingly, the plaintiff's claim of common-law contribution is hereby stricken.
VI MOTION TO STRIKE THE TENTH COUNT
Dalling, LLC, Larsen, Lauralton Hall, AFF, Milford Bank and Accurate Insulation have moved to strike the tenth count of the plaintiff's amended complaint which asserts an indemnity claim against the defendants.
The tenth count of the plaintiff's complaint appears to assert a claim for indemnity under the common law. "[A] party is entitled to indemnification, in the absence of a contract to indemnify, 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 (1990). The plaintiff seeks to assert against the moving defendants tort-based claims for indemnification. With respect to the defendant Dalling, LLC, the plaintiff alleges that Dalling, LLC negligently disposed of demolition debris from the Benton Street property at Lauralton Hall school, an unlicensed landfill. With respect to the defendants Larsen and Milford Bank, the plaintiff alleges that Milford Bank was negligent in arranging for the disposal of construction material at Lauralton Hall school and Larsen was negligent in disposing of the material it received from Milford Bank at Lauralton Hall school. Finally, the plaintiff asserts that AFF and Accurate Insulation negligently failed to disclose information to the plaintiff relating to the presence of additional contamination on the Benton Street property.
"[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. Such proof requires a plaintiff to establish four separate elements: (1) that the other tortfeasor was negligent; (2) that his negligence, rather than the plaintiff's, was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the plaintiff; and (4) that the 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." (Citations and internal quotation marks omitted.) Id.
In the tenth count of its amended complaint, Suitt seeks to have each of the moving defendants indemnify it for all the costs that may be imposed upon it for the clean up of the Lauralton Hall disposal site. This count stands in contrast to the ninth count in which the plaintiff asserts a claim of contribution against the defendants. "In an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another. The doctrines of indemnification and contribution are based on fundamentally different principles. 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. (Citations and internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706 (1997).
Given the allegations of the complaint that each of the various defendants is responsible for dumping a portion of the total amount of construction material found at the unlicensed landfill, this action appears ill-suited for a claim of indemnity. The plaintiff apparently agrees. It has made no attempt in its complaint to allege facts to show that the negligence of each of the moving defendants was primary. The plaintiff has not alleged any facts indicating that each of the defendants was in control of the situation to the exclusion of the plaintiff. Since no such facts are alleged, no reasonable juror could find such facts and the moving defendants' motion to strike the tenth count must be granted. Id., 705.
VII MOTION TO STRIKE ALL COUNTS REGARDING KEITH DALLING
The defendant Keith Dalling has moved to strike the first, seventh, eighth, ninth and tenth counts of the plaintiff's complaint for failure to state a claim upon which relief can be granted. Keith Dalling argues that the complaint contains no factual allegations concerning the individual actions of Keith Dalling which, if found to be true, would establish his personal liability. I agree.
The plaintiff's complaint asserts that Michelle Dalling Daughters, LLC is a limited liability company and that Michelle Dalling and Keith Dalling are individuals doing business as Michelle Dalling Daughters, LLC. The complaint contains no other factual allegations concerning Keith Dalling individually. While an officer or agent of a corporation who commits or participates in the commission of a tort may be liable to third persons injured thereby, Scribner v. O'Brien, Inc., 169 Conn. 389, 404 (1975), the plaintiff's complaint must allege facts setting forth the nature of the individual's participation. The plaintiff's complaint fails to do so. Accordingly, the defendant Keith Dalling's motion to strike the first, seventh, eighth, ninth and tenth counts of the plaintiff's complaint as they relate to him is hereby granted.
VIII CONCLUSION CT Page 11728
In light of the above, the court renders the following decisions:
1. The motions to dismiss and to strike the first count, and the seventh count filed by the defendants Dalling LLC, Larsen, Lauralton Hall and Milford Bank are denied;
2. The motion to strike the fifth count filed by Pepsi and the motions to dismiss the fifth count filed by AFF and Accurate Insulation are denied.
3. The motions to dismiss and strike the seventh count filed by Dalling, LLC is denied.
4. The motion to strike the eighth count filed by the defendant Dalling, LLC is granted;
5. The motions to strike the ninth count filed by the defendants Dalling, LLC, Larsen, Lauralton Hall, AFF, Milford Bank and Accurate Insulation are granted in part in that the plaintiff's common-law claim for contribution is stricken;
6. The motions to strike the tenth count filed by the defendants Dalling, LLC, Larsen, AFF, Milford Bank and Accurate Insulation are granted;
7. The defendant Keith Dalling's motion to strike all counts asserting claims against him is granted.
BY THE COURT
Jon M. Alander Judge of the Superior Court