Opinion
No. FST CV08-5008446S
September 9, 2011
Memorandum of Decision on Motion for Summary Judgment (No. 200)
PROCEDURAL AND FACTUAL BACKGROUND
In this action, the plaintiff, Donna Valente, alleges that co-defendant Joseph Veneri engaged in obscene behavior while working as a security guard in the Norwalk building where she has her office. According to the second amended complaint ("the complaint"), filed on October 28, 2009 as the operative complaint in this case, Veneri was employed by co-defendant Securitas Security Services U.S.A., Inc. ("Securitas"), a private security company that contracted with the plaintiff's employer, Affinion Group, LLC ("Affinion"), to provide security services. The plaintiff alleges that "[for a long time prior to November 2007, unknown to the plaintiff, defendant Veneri used his position and access provided to him by Securitas to spy upon plaintiff and to make her the object of his perverse sexual desires." Veneri's indecent conduct is alleged to have occurred at times when the plaintiff was away from her office. According to the complaint, Veneri went through the plaintiff's belongings, left notes in her office addressed from "your secret admirer" in which he asked her for her used underwear, and performed a sexual act while he was alone in her office. Veneri's actions were allegedly captured on a hidden video camera that was installed in the plaintiff's office in late December 2007 after she started receiving the anonymous notes. After Affinion executives informed Securitas in January 2008 that Veneri engaged in offensive behavior, Securitas fired Veneri, according to the complaint.
The complaint of the plaintiff Donna Valente is brought in six counts: as to Securitas the four counts are: invasion of privacy, negligence, negligent supervision, and negligent infliction of emotional distress. Veneri is joined in the invasion of privacy, negligence and negligent infliction of emotional distress counts and is the sole defendant in two counts, battery and intentional infliction of emotional distress.
On August 3, 2009, defendant Securitas filed its amended apportionment and third-party complaint, (No. 132) ("third-party complaint") against Affinion and Trilegiant Corp., Affinion's corporate parent. Although that pleading was filed with reference to the plaintiff's original complaint of August 18, 2008, no subsequent third-party/apportionment complaint was filed with reference to plaintiff's Second Amended Complaint of October 28, 2009 and No. 132 remains the operative apportionment and third-party complaint in this matter. In count one of the third-party complaint, Securitas alleges that during the relevant events in this case, a Guard Services Master Agreement ("the contract") was in force between Securitas and Cendant Operations, Inc. ("Cendant"), the corporate predecessor to Trilegiant. The contract was extended to cover the relationship between Securitas and Affinion, according to the third-party complaint. Securitas alleges that pursuant to the contract, Affinion is required to indemnify Securitas against any losses attributed to "any third party's claim relating to the gross negligence or willful misconduct" of Affinion. Securitas further alleges that after the plaintiff complained to Affinion that someone was accessing her office in an improper manner, Affinion began video surveillance of the plaintiff's office and conducted an investigation into her complaints on its own without informing Securitas. Such withholding of information allowed Veneri's actions to continue, according to the third-party complaint, and constitutes intentional or grossly negligent violation of Affinion's duties. Had Affinion informed Securitas about the plaintiff's complaints or its unilateral investigation, then some or all of Veneri's actions would have been prevented, Securitas alleges. Thus, count one of the third-party complaint is a claim for contractual indemnity.
Affinion and Trilegiant Corp. have identical interests and will be collectively referred to as "Affinion" in this memorandum.
Count two of the third-party complaint repleads the allegations of count one and alleges that Affinion's gross negligence is a proximate cause of the plaintiff's injuries, entitling Securitas to an apportionment of damages related to the plaintiff's negligence claims pursuant to General Statutes § 52-572h et seq. and General Statutes § 52-102b.
Count three of the third-party complaint is a claim for common-law indemnification and alleges that Affinion had control over the situation that caused the plaintiff's injury and that Securitas reasonably relied on Affinion to notify Securitas about Veneri's conduct. Affinion's failure to notify is negligence and carelessness that directly caused the plaintiff's alleged losses, according to count three of the third-party complaint.
On August 26, 2009, Affinion filed its answer, special defense and counterclaims to the third-party complaint. In its answer, Affinion denied responsibility for the alleged conduct of Securitas and Veneri and denied that it had any control over the situation that led to the plaintiff's injury. Affinion pleaded a special defense of comparative (contributory) negligence to count two of the third-party complaint, alleging that the plaintiff's injuries were due to the negligence or willful misconduct of Veneri or of Securitas in hiring, retaining and supervising Veneri. Affinion also pleaded two counterclaims against Securitas. The first counterclaim sounds in contractual indemnification and alleges that pursuant to the agreement between Securitas and Affmion, Securitas must indemnify the third-party defendant Affinion from any losses "arising out of or resulting from any third party's claim relating to (I) the gross negligence or willful misconduct by [Securitas], its employees, or agents [and/or] (ii) bodily injury (including death) or damage to real or personal property by [Securitas], its employees or agents . . ." The second counterclaim sounds in common-law indemnification and alleges that Securitas contributed to the plaintiff's injuries by negligently hiring, retaining or supervising Veneri, including retaining Veneri despite knowing about "prior inappropriate behavior toward females" and failing to ensure that he completed "sexual harassment training." Thus, according to the second connterclaim, Securitas' negligent actions and omissions directly and immediately caused the plaintiff's alleged injuries.
On September 10, 2009, Securitas replied to Affinion's special defense and counterclaims, denying the special defense and second counterclaim in their entirety and leaving Affinion to its proof on the first counterclaim. On December 15, 2009, Securitas answered the plaintiff's complaint, denying the substantive allegations, and moved for summary judgment on both the complaint and the third-party complaint. The court, Tierney, J., denied both motions for summary judgment on June 7, 2010.
This decision addresses Affinion's March 31, 2011 motion for summary judgment (#200) as to the third-party complaint. Attached to the motion is a memorandum of law and the following exhibits: (a) excerpts of the deposition transcript of Thomas Fagan, Securitas' corporate designee; (b) excerpts of the March 10, 2011 deposition transcript of Deborah Warrek, branch manager at Securitas' Milford branch; (c) a copy of a 1999 Hospital of Saint Raphael incident report pertaining to an incident where a hospital employee claimed she felt threatened by Veneri; (d) copies of a 2001 disciplinary warning from Pinkerton, a Securitas subsidiary, pertaining to an incident where Veneri allegedly violated company policy by opening a Trilegiant payroll package that he was holding for safekeeping and a 2005 Securitas "counseling and corrective action report" stating that Veneri failed to report a large brown stain on the carpet; (e) excerpts of the May 20, 2010 deposition transcript of Warrek; (f) a copy of a 2006 e-mail exchange between Warrek and Larry Ciacci, Securitas' field service manager, pertaining to Veneri's alleged failure to follow established procedures during a power outage and Affinion's request that Securitas remove Veneri from its offices; and transcripts of the following individuals' depositions: (g) Mary Rusterholz, Affinion's executive vice president of support services; (h) Brian Hogarth, Affinion's facilities manager for the Norwalk office; (i) Michael Brown, Affinion's head of human resources; (j) the plaintiff; (k) Veneri; and (l) Brian Lessard, Affinion's group vice president of global office services, to which is attached: (1) a copy of the guard services agreement between Cendant and Securitas; and (2) a copy of a December 15, 2008 e-mail from Fagan to Lessard, ccd to Brown, with the subject line "Pending Action Valente v. Securitas USA," in which Fagan writes that, "[a]s discussed, Securitas USA will be filing a cross-complaint v. Affinion in this matter." Also attached to the motion is a copy of Securitas' objections and supplemental answers to Affinion's first set of requests for admission.
On May 5, 2011, Securitas filed its opposition to the motion for summary judgment. Attached to the opposition are excerpts of the deposition transcripts of the following individuals: (a) Francis Murphy, Affinion's expert witness, an expert on private security and law enforcement; (b) the plaintiff; (c) Rusterholz; (d) Brown; (e) Hogarth; and (f) Lessard. Also attached to the opposition are the following exhibits: (g) Securitas' response and objections to the plaintiff's first set of interrogatories and requests for production; (h) an excerpt of the deposition transcript of Fagan; (i) copies of the 2006, 2007 and 2008 performance reviews of Securitas, showing that in most aspects, Affinion believed that Securitas "frequently exceeds expectations"; and (j) the May 2, 2011 affidavit of Fagan, attached to which is a copy of a December 15, 2008 e-mail from Fagan to Lessard and Brown.
The court heard oral argument at short calendar on May 9, 2011. On May 12, 2001 Affinion filed its Errata to its memorandum of law in support of the motion for summary judgment.
STANDARD OF DECISION
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, 297 Conn. 710, 721, 1 A.3d 21 (2010). "A material fact is a fact that will make a difference in the outcome of the case." Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an 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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010). "Furthermore, [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 51 Conn.Sup. 265, 273, 980 A.2d 983 [ 47 Conn. L. Rptr. 375] (2009).
DISCUSSION
Affinion moves for summary judgment on all three counts of the third-party complaint. Affinion argues initially that Securitas has not complied with the alternative dispute resolution mechanism set out in the contract between the parties, namely a request for a meeting in an attempt to resolve the dispute, followed by an escalation of the dispute if the parties fail to resolve the matter. According to Affinion, Securitas' failure to adhere to this condition precedent necessitates the granting of summary judgment in favor of Affinion. Securitas, in turn, argues that a genuine issue of material fact exists and refers the court to its corporate designee's affidavit, who attests that discussions took place between Securitas and Affinion representatives prior to the filing of the third-party complaint.
Affinion advances several other arguments in support of its motion for summary judgment. With respect to the contractual indemnification count, Affinion argues that the contract's indemnity provision, covering gross negligence or willful misconduct, does not apply to the facts of this case. Securitas argues that this is a contested factual issue and that the court is not bound to follow the opinion of Judge Tierney, who noted in his ruling that neither gross negligence nor willful misconduct is in the plaintiff's complaint against Securitas. Affinion also urges the court to grant summary judgment on the contractual indemnification count because Securitas' claims are based on a non-existent duty. Securitas argues in return that factual issues exist regarding Affinion's decisions to conduct its investigation into the plaintiff's privacy concerns without informing Securitas and to withhold information from Securitas even after seeing Veneri on tape in the plaintiff's office.
Lastly, Affinion argues that there are no issues of fact as to Securitas' common-law indenmification claim because Affinion never had exclusive control over Veneri, a claim supported by both the evidence and Judge Tierney's opinion in the previous motion for summary judgment. Securitas argues in response that exclusive control is an unresolved issue of fact, referring to Affinion's exclusive control over the investigation into the plaintiff's concerns and Affinion's alleged assistance in training Veneri.
Contractual Prerequisites to Suit
The court will first address Affinion's threshold argument regarding contractual prerequisites to suit. Affinion argues that pursuant to its contract with Securitas, two conditions precedent must be satisfied prior to the commencement of legal action between the parties: meeting and notice. The contract between Affinion's predecessor Cendant and Securitas contains the following section 25, titled "dispute resolution": "The parties agree that, before any formal legal action is commenced, any dispute between the parties shall be the subject of a meeting between management representatives authorized to negotiate, in good faith, a mutually acceptable resolution of such dispute. The parties agree to seek appropriate escalation of the dispute within thirty (30) days of the dispute being raised. If these efforts are not successful, either party shall have the right to pursue available remedies at law or equity. This provision may not be construed so as to prohibit either party from seeking preliminary or permanent injunctive relief in any court of competent jurisdiction." (Lessard affidavit, Ex. 1, p. 17.) The term "meeting" is not defined in the contract. The following section 26 is titled "governing law/jurisdiction": "This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New Jersey, without regard to its conflicts of law principles, which are affirmatively hereby waived. The parties hereto consent to the exclusive jurisdiction of the state and federal courts in the State of New Jersey." (Lessard affidavit, exh. 1, p. 17.)
In addition to alternative dispute resolution, the contract contains a notice requirement in section 10(c): "The Indemnitee agrees to (i) promptly notify the Indemnitor in writing of any indemnifiable claim; and (ii) give the Indemnitor the opportunity to (y) defend or negotiate a settlement of any such claim at Indemnitor's expense, and (z) cooperate fully with Indemnitor, at Indemnitor's expense, in defending or settling such Claim." (Lessard affidavit, Ex. 1, p. 9.) Section 18 of the contract mandates that notices are effective when reduced to writing and delivered. (Lessard affidavit, Ex. 1, p. 15.) Brian Lessard, Affinion's group vice president of global office services, attests in his affidavit that Securitas never requested a meeting and never provided Affinion with written notice pertaining to indemnification of claims. (Lessard affidavit, p. 2.) In his deposition, Thomas Fagan, Securitas' corporate designee, testified that Securitas did not send a letter to Affinion demanding indemnification but that he did communicate by e-mail with Lessard and that to his knowledge, no meeting took place between representatives of Affinion and Securitas. (Affinion exh. A, pp. 107-08, 143). In its supplemental answers to Affinion's first set of requests for admission, Securitas answered in part that it "would be incapable of asking for a meeting on a 'claim' it had not yet asserted" to a request asking whether it asked for a meeting with Affinion representatives prior to instituting its claims against Affinion. (Affinion exh. M, pp. 2-3.)
The contract notice provision uses the generic terms "Indemnitor" and "Indemnity" because each party has cross-indemnified the other in identical language "from and against any and all losses, claims, damages, expenses, fees, settlements, penalties, and attorneys fees arising out of resulting from any third party's claim relating to the gross negligence or wilful misconduct by [the indemnifying party]." Contract, ¶ 10(a) and(b).
Securitas responds that an issue of fact exists as to whether it complied with contractual prerequisites to suing Affinion. It argues that the December 15, 2008 e-mail from Fagan to Lessard and Brown provides clear notice of impending action. Furthermore, in his affidavit, Fagan attests that in the spring and late fall of 2008, he discussed the plaintiff's claims against Securitas with Lessard, and that Securitas' intent to seek indemnification from Affinion was discussed orally with Lessard prior to the December 15, 2008 e-mail. (Fagan affidavit, p. 2.) Even if this notice is not strictly in compliance with the contract, it still constitutes constructive notice, therefore creating an issue of fact, according to Securitas.
The court agrees with Securitas that the evidence submitted shows an issue of material fact as to the notice of an indemnifiable claim and as to compliance with the requirement for a meeting to attempt resolution of any disputes. The motion for summary judgment therefore cannot be granted on the ground of alleged noncompliance with the contractual prerequisites to suit.
Count I — Contractual Indemnification
Affinion argues that it is entitled to summary judgment on the contractual indemnification count because the plaintiff's claims sound in negligence and not gross negligence or willful misconduct and are therefore outside the scope of the indemnification agreement. This argument is consistent with Judge Tierney's opinion in the prior motion for summary judgment. Furthermore, Affinion argues that the agreement only covers third-party claims against Affinion, whereas the plaintiff's claims are solely against Securitas.
Section 10(b) of the contract provides that "[Affinion] shall indemnify, defend and hold harmless [Securitas] from and against any and all losses, claims, damages, expenses, fees, settlements, penalties and attorneys fees arising out of or resulting from any third party's claim relating to the gross negligence or willful misconduct by [Affinion]." (Lessard affidavit, Ex. 1, p. 9.) Securitas argues that the damages alleged by the plaintiff relate to the gross negligence or willful misconduct of Affinion and that Judge Tierney's decision regarding the absence of gross negligence or willful misconduct in the plaintiff's complaint is dicta and should be disregarded by this court.
In the contract, Securitas is referred to as "Vendor." (Lessard affidavit, exh. 1, p. 1.)
In denying Securitas's Motion for Summary Judgment as to Third-Party Claims filed by Securitas Security Services USA, Inc. dated December 15, 2009 (No. 148) Judge Tierney, after a review of authorities in both jurisdictions, concluded that ". . .there is no separate action either in Connecticut or New Jersey for 'gross negligence.' {Plaintiff] Valente has not sued in gross negligence. Thus the contractual indemnification clause must fail as to the claim of gross negligence." (Memorandum of Decision, No. 168. p. 8.) Judge Tierney also considered whether or not the plaintiff's claims in her complaint could be construed as 'wilful misconduct' for purposes of the indemnity clause of the contract. After reviewing authorities of both jurisdictions, he concluded that ". . .New Jersey and Connecticut define the term 'wilful' in a similar fashion, requiring an element of intent." Id. The court therefore ruled: "The court finds that the contractual indemnity provision in paragraph 10(b) is not applicable, since 'gross negligence' and 'wilful misconduct' as defined by both New Jersey and Connecticut are not in Valente's claim against Securitas." Id.
"The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, supra, 288 Conn. 656.
"Our Supreme Court has defined gross negligence as very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or slight diligence . . . It has defined wilful misconduct as intentional conduct designed to injure for which there is no just cause or excuse . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional." (Citation omitted; internal quotation marks omitted.) PIC Associates, LLC v. Greenwich Place GL Acquisition, LLC, 128 Conn.App. 151, 158-59, 17 A.3d 93 (2011).
Under New Jersey law, "[g]ross negligence is conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362 N.J.Super. 421, 425, 828 A.2d 343 (N.J.Super.Ct. Law Div. 2003). "[W]illful misconduct is not immutably defined but takes its meaning from the context and purpose of its use . . . The label turns on an evaluation of the seriousness of the actor's misconduct . . . Although it is clear that the phrase implies more than simple negligence, it can apply to situations ranging from slight inadvertence to malicious purpose to inflict injury." (Citations omitted; internal quotation marks omitted.) G.S. v. Dept. of Human Services, 157 N.J. 161, 178, 723 A.2d 612 (1999).
While under the law of the case doctrine, this court is not bound by Judge Tierney's opinion, this court has reviewed all the allegations of plaintiff Donna Valente's complaint and has reviewed the authorities cited by Judge Tierney in his memorandum of decision, and concurs with his conclusion that the complaint fails to allege any claim of gross negligence or willful misconduct against either party to the contract. That conclusion has been dismissed by Securitas as "dictum" but that is not so. It was a ground of Judge Tierney's decision to deny Securitas' motion for summary judgment on its own third-party/apportionment claims. In any event this court concurs with and adopts Judge Tierney's decision on that point. The court will discuss only the allegation of Count One (invasion of privacy) which alleges in Paragraph 23 that "[t]he defendants have intentionally, or with reckless disregard for the rights of the plaintiff, intruded into the plaintiff's seclusion, privacy, and personal affairs." Judge Tierney referred to his earlier memorandum of decision (No. 167) denying Securitas' Motion for Summary Judgment as to Claims of Plaintiff Donna Valente, where he noted that there was no allegation of liability of Securitas for invasion of privacy by its employee Veneri under the doctrine of respondeat superior, and that plaintiff's claim against Securitas was based entirely on an allegation of direct conduct by Securitas, and concluded: "[n]o facts have been submitted to establish any direct invasion of privacy by Securitas . . . The only manner by which Securitas can be held liable on the first count of invasion of privacy is if there is a cause of action for reckless invasion of privacy." (Memorandum of decision, p. 13.) The issue on the Securitas Motion for Summary judgment on its own third-party and apportionment claims against Affinion thus became whether the plaintiff's claim of reckless invasion of privacy by Securitas was a claim sounding in gross negligence or intentional conduct for purposes of the contractual indemnity clause. Judge Tierney found there was no evidence of intentional invasion of privacy by Securitas, and this court adopts his reasoning in reaching that conclusion and concurs with it. But what about the plaintiff's allegation of reckless invasion of privacy by Securitas? Is that a claim of "gross negligence" for purposes of the indemnification? Judge Tierney found that it was not, and this court concurs based on the following reasoning. First, as Judge Tierney pointed out, Donna Valente is not a party to the contract between Securitas and Affinion, and is therefore not bound by the choice of law provision of the contract. She is entitled to sue for her tortious claims in Connecticut where the torts occurred, and to have those torts decided under Connecticut law. Furthermore, it has been established in Connecticut that "[r]ecklessness is a state of consciousness with reference to the consequences of one's acts . . . [i]s is more than negligence, more than gross negligence . . ." Craig v. Driscoll, 262 Conn. 312, 342 (2003); Dubay v. Irish, 207 Conn. 518, 532 (1988). This court therefore agrees that the plaintiff's allegation of reckless invasion of privacy by Securitas is neither a claim of gross negligence nor a claim of intentional conduct and therefore does not fall within the contract indemnification clause.
A more compelling reason to conclude that the claims in this case do not fall within the indemnification clause is that the claims of plaintiff Donna Valente are not made against the indemnitor, Affinion which was not sued at all by the plaintiff. The plaintiff's causes of action as pleaded in the amended complaint are directed only at the two defendants, Securitas and Affinion. The indemnity clause applies to" . . . any third party's claim relating to the gross negligence or willful misconduct of Cendant [the predecessor of Affinion]." Securitas argues unconvincingly and without citation of authority that plaintiff Valente's claims "'arise out of' and 'result from'" Affinion's gross negligence despite the fact that the plaintiff has made no such allegation. Secuitas in the third-party/ apportionment complaint charges Affinion with conducting an investigation into the sexual harassment and possible stalking of an employee but failing to inform Securitas of this investigation after finding that a Securitas security guard was entering this employee's office at night and looking through her belongings, and that Affinion's conduct was a proximate cause of the plaintiff's injuries and damages in that "[h]ad Affinion taken the proper and reasonable steps of reporting this complaint to Securitas initially, or even at subsequent times to the complaint, it is highly likely that the subsequent acts of Mr. Veneri would have been prevented and hence, the plaintiff's damages would not have occurred." (Amended Apportionment and Third-Party Complaint, First Count, ¶ 7a.) This argument fails for two reasons: first, it is entirely contrary to the unambiguous cross-indemnity provisions of the contract; and second, there is no evidence whatsoever that Affinion had a duty to report the fact of its investigation, or the findings, to the employer potentially liable for the actions of one of the people who had after-hours access to the plaintiff's locked office.
Paragraph 10a of the contract obligates Securitas to indemnify, defend and hold harmless Affinion from any loss or damages "arising out of or resulting from any third party's claim relating to (i) the gross negligence or wilful misconduct of Vendor [Securitas] its employees or agents . . ." Paragraph 10b, the provision here at issue, obligates Affinion to likewise indemnify, defend and hold harmless Securitas from any loss or damages "arising out of or resulting from any third party's claim relating to the gross negligence or wilful misconduct of Cendant [Affinion's predecessor]." "In other words, each party promises to indemnify and hold the other party harmless from third-party claims of gross negligence or wilful misconduct of the promisor or indemnitor." This is clear and unambiguous. If the indemnity extended additionally to claims of the third party against the indemnitee, as Securitas argues, the third-party claim would potentially be covered by both indemnity clauses, resulting in a meaningless circle of indemnity between the parties. The Securitas interpretation of the contract is rejected as a matter of law. If the intent of the contracting parties was to extend the indemnity to claims against either party, they would have said so in the contract. They did not. It is well settled that "[w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." Honulik v. Town of Greenwich, 293 Conn. 698, 710 (2009), quoting Connecticut Light Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109-10 (2006). See also Levine v. Massey, 232 Conn. 272, 278 n. 7 (1995) (reaffirming generally the "four corners" doctrine of contract interpretation; i.e. when only one interpretation of a contract is possible, the court need not look outside the four corners of the contract).
Finally, Affinion argues that there is no evidence of any duty on its behalf to report to Securitas that it was conducting its own investigation of a sexual harassment complaint by one of its employees that improper conduct had occurred on its premises. Securitas' corporate designee, Thomas Fagan has testified that, under the contract, Affinion was not obligated to (i) use or request the assistance of Securitas in handling sexual harassment investigations, or (ii) to inform Securitas when it was investigating a sexual harassment matter (Clauss Affidavit, Ex. A. Fagan Transcript, 32, 64-65, 68-69). Furthermore, Securitas has admitted, through Fagan, that there are no amendments to the contract that provide for services other than security guard services. Id. Tr. 13. Section 19 of the contract expressly states that the obligations of the parties based entirely on and circumscribed by the express provisions of the contract. The court has examined the contract and finds no provision which would obligate Affinion to report to Securitas that it was conducting an investigation of the Valente complaints, or report the results of that investigation at any particular stage. Paragraph 3 of the contract appoints Securitas as "a preferred, but non exclusive, provider of Services . . . Cendant [Affinion] makes no commitment or guarantee as to the volume of services to be purchased under this agreement and any applicable schedules." "Services" are defined in the preamble as "security and guard services." Paragraph 6 is a detailed provision under the heading "Reporting," but all the reporting requirements describe reports to be provided by Securitas to Affinion, not the opposite. (The same is true of "Exhibit C, Reporting Requirements"). Paragraph 12(a) provides that ". . .Vendor [Securitas] shall not tamper with, compromise, or attempt to circumvent any physical or electronic security or audit measures employed by Cendant [Affinion] in the course of [Affinion's] business operations." Paragraph 12(d) provides that "[Securitas] shall monitor all service . . . for security breaches, violations, and suspicious activity and shall notify [Affinion] of such breaches, violations. And activity on a timely basis . . . [Affinion] reserves the right to audit the services and the Service Sites for compliance with this Section 12 . . ." And paragraph 36 provides "[Securitas] is not engaged as a security consultant and has no overall responsibility for the manner in which Cendant enforces its security policies." None of the services itemized in Exhibit A, "Schedule of General Services," make any mention of conducting criminal investigations. The court agrees that there is no evidence of any duty of Affinion to report to Securitas that it is conducting its own investigation of improper sexual harassment conduct toward one of its employees on company property.
Henceforth the court shall substitute "Securitas" for "Vendor" and "Affinion" for "Cendant" when quoting from the contract.
A legal duty may arise from a contract, from a statute or from the circumstances of a certain situation. Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008); see also Hill v. Williams, 74 Conn.App. 654, 660 n. 7, 813 A.2d 130, cert. denied, CT Page 19467 263 Conn. 918, 822 A.2d 242 (2003) (duties may arise pursuant to contracts). "The determination of whether a duty exists is a question of law." Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). "[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand." (Internal quotation marks omitted.) Leon v. DeJesus, 123 Conn.App. 574, 576, 2 A.3d 956 (2010). "To find the existence of a legal duty where none is expressed in the contract has much the same effect as judicially rewriting the contract for the parties." (Internal quotation marks omitted.) Connecticut Bank Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 783, 595 A.2d 334 (1991). Summary judgment is appropriate where a party's assertion of a lack of independent legal duty is uncontested. Sanders v. R.R. Hiltbrand Construction, LLC, Superior Court, judicial district of New Britain, Docket No. CV 07 5003802 (March 11, 2011, Young, J.).
Securitas has failed to provide any evidence rebutting Affinion's contention that it lacked a duty. Although Securitas' brief mentions that there is a factual issue over whether prior incidents of misconduct involving Veneri that were known to Affinion made Veneri's actions toward the plaintiff foreseeable, Securitas argues that those incidents are based on inadmissible hearsay or are irrelevant and "that they do not lend support to any argument that it was foreseeable that Veneri would commit the later acts involving [the plaintiff]." (Securitas brief, p. 9.) (The court has not considered the incident report or other evidence claimed to be inadmissible.) Securitas also argues that one member of Affinion's staff thought that the handwriting on one of the anonymous notes might be similar to the handwriting of Veneri. This is insufficient to create a question of fact as to the existence of a duty to inform Securitas. Also, the evidence offered by Securitas does not substantiate the claim that the offensive nature of Veneri's alleged conduct was foreseeable to Affinion. To the extent any issues raised by Securitas are unresolved questions of fact, such questions are immaterial.
For all these reasons, the court grants summary judgment as to Count I of the Third-Party Complaint.
Count II — Apportionment
Count II asks for an apportionment of damages under Conn. Gen. Stat. § 52-572h, et seq. and § 52-102b. Securitas alleges in its apportionment complaint that apportionment defendant Affinion kept the Donna Valente complaint of sexual harassment secret, "and instead attempted to determine the identity of the person or persons on their own, which led to the sequence of events which are alleged by the plaintiff to have caused her injuries and damages." (Count II, para 7a.) Securitas further alleges: "[a]fter the initial complaint by the plaintiff, Affinion continued to withhold the information available and failed to notify Securitas of the complaint, having a continuing duty to do so"; ( Id. ¶ 7b) and, that the foregoing conduct "was grossly negligent and in violation of Affinion's duties under the circumstances, thus allowing Mr. Veneri's improper acts to continue." ( Id. ¶ 7c).
Affinion argues that it had no duty, contractual or otherwise, to tell Securitas about its internal investigation into the harassment of an employee and is thus entitled to summary judgment on the apportionment count of the third-party complaint. The court has addressed that argument at length in the foregoing discussion of Count I, and agrees that there is no evidence of any duty of Affinion to report its confidential investigation of Ms. Valente's complaint of sexual harassment to Securitas. On that basis alone, Affinion is entitled to summary judgment.
But summary judgment must also enter for Affinion on the apportionment count because the claim of apportionment is improper under the apportionment statutes. Conn. Gen. Stat. § 52-102b(a) provides: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons, and complaint upon a person not a party to the action, who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages, in which case the demand for relief shall seek an apportionment of liability." Section 52-572h(c) provides: "In a negligence action to recover damages for resulting from personal injury . . . 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 . . ."
There is no doubt that this is a negligence action to recover damages resulting from personal injury. The plaintiff has alleged negligence in the second, third, and fourth counts of the complaint and has alleged that the conduct of defendants Secuitas and Veneri have caused her fear for her safety, fear of contracting disease, shame, humiliation, severe emotional distress, for which she has received medical care and has taken prescription medications. But, contrary to section 52-572h(c), defendant Securitas is not alleging in its apportionment complaint against Affinion that if its apportionment complaint against Affinion is proved, plaintiff's damages should be "determined to be proximately caused by the negligence of more than one party." Securitas has not alleged that Affinion was negligent in causing plaintiff's damges. It has alleged twice (in ¶¶ 7 and 7c of the apportionment complaint) that Affinion's alleged conduct was "gross negligence" or "grossly negligent." Apportionment on the basis of gross negligence is not permitted. This was underscored by the legislature in 1998 when it added subsection 52-572h(o) to the statute, which provides:
Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton, or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute . . .
The court holds that an apportionment complaint alleging only gross negligence against the apportionment defendant is a claim against that party on a basis other than negligence and is therefore not an apportionment claim allowed under Conn. Gen Stat. 52-572h. In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 338 the Supreme Court defined gross negligence as "very great or excessive negligence, or the want of or failure to exercise even slight care or slight diligence." This is vastly different from the familiar definition of common-law simple negligence as "the failure to use reasonable care under the circumstances. Reasonable care is the care that a reasonably prudent person would use in the same circumstances." Hoelter v. Mohawk Services, Inc., 170 Conn. 495, 501 (1976). See, PIC Associates v. Greenwich Place GL Acquisition, supra, 128 Conn.App. 151 (2011) where the court approved a finding that the equitable defense of nonforfeiture had been proved on the ground that the evidence showed that the defendant's failure to timely pay the monthly rent was negligent, but not grossly negligent, thereby supporting the concept that gross negligence is something other than negligence.
Count III — Common-law Indemnification CT Page 19470
Affinion argues that there are no questions of fact relating to count three of the third-party complaint, which alleges a cause of action in common-law indemnification.
"Common-law indemnification 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 . . . To assert a claim for indemnification . . . 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 . . . resulting injuries . . . (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." (Emphasis in original; internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 523-24, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). "[T]he absence or presence of exclusive control is a question of fact. That is ordinarily the applicable rule . . . Nonetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third-party complaint, any reasonable juror could find that the third-party defendants had exclusive control of the situation. Under such circumstances, this issue becomes a question of law." (Citations omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704-05, 694 A.2d 788 (1997). One of those circumstances occurs when "the disagreement between the parties on this issue does not . . . turn upon any meaningful dispute about the alleged facts." Id., 705.
For instance, in Shelby Ins. Co. v. Castellon, Superior Court, judicial district of New Haven, Docket No. CV 98 0416779 (May 26, 2000, Devlin, J.), the court granted summary judgment on a common-law indemnity count in favor of a fire marshal because the fire marshal did not have exclusive control over a defective gas furnace to the exclusion of the owners of the bakery where the furnace was located. The court found that the fire marshal's exclusive control of inspections of buildings for fire code compliance was not the type of exclusive control that could lead to indemnity liability for a fire caused by the faulty furnace. Id. Similarly, in Palmieri v. Metcalf Drug Store, Superior Court, judicial district of New Haven, Docket No. CV 03 0475158 (August 15, 2006, Silbert, J.), the court granted summary judgment on common-law indemnity in favor of a third-party defendant that was hired to inspect carpet mats on Wednesdays whereas the injury caused by the carpet occurred on a Friday.
Affinion claims that it did not have exclusive control over Veneri's conduct. Affinion refers to the contract, which states, among other provisions, that "[Affinion] shall advise [Securitas] of the rules and regulations governing the conduct of [Securitas] employees who perform/provide Services at the Locations and [Securitas] shall cause its employees to adhere to all such rules and regulations, including without limitation on-site safety and security procedures and policies." (Lessard affidavit, exh. 1, p. 2.) The contract further implies a joint responsibility for removing unsuitable Securitas employees: "In the event that [Affinion], in its sole and reasonable judgment, determines that such person(s) are unsatisfactory or unqualified to perform Services hereunder, [Affinion] shall so notify [Securitas] and such person(s) shall be removed forthwith and replaced by [Securitas] without any degradation in Services to [Affinion]." (Lessard affidavit, exh. 1, p. 2.)
This court concurs with Judge Tierney's findings in denying Securitas' motion for summary judgment on its claim of common-law indemnification, after reviewing this same evidence:
Affinion did not hire Veneri and did not participate in the hiring process. Affinion did not supervise Veneri. The Guard Services Master Agreement did not permit Affinion to supervise or control the security personnel placed in Affinion's offices by Securitas. Securitas had its own supervisory personnel on and off the Affinion premises. Securitas has failed to demonstrate any facts showing that Affinion was "in control of the situation to the exclusion of the plaintiff." Memorandum of Decision, 6/7/10 No. 168, p. 10.
Securitas makes no argument that Affinion had exclusive — or any — control over Veneri or his performance of his duties, but argues instead in response that Affinion's unilateral investigation into the plaintiff's complaints translates into exclusive control for the purposes of indemnity. In its brief, Securitas goes so far as to argue that, "Affinion was in control of the investigation to the exclusion of Securitas USA and, by virtue of its concealment of the knowledge of Veneri's activities, in control of Veneri's very activities themselves." (Securitas brief, p. 21.) This argument misses the mark and stretches the limits of Connecticut's common-law indemnity doctrine. In Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 706, the Supreme Court defined "exclusive control over 'the situation' as exclusive control over the dangerous condition that gives rise to the accident." In the present case, the dangerous condition that gave rise to the plaintiff's alleged injuries is Veneri himself, not Affinion's alleged delay in disclosing or reporting the monitoring of Veneri on a hidden camera. Thus, the court rules that there are no issues of material fact relating to the presence or absence of exclusive control. Affinion lacked exclusive control over Veneri as a matter of law, and thus, Affinion is entitled to summary judgment on the common-law indemnification count of the third-party complaint.
CONCLUSION
For the reasons stated above, the motion for summary judgment is granted.