Opinion
No. CV 08 5014761S
May 3, 2011
Preliminary Statement
This case arises out of an injury alleged sustained by plaintiff Benjamin Wohlfert when he fell from a forklift being operated by defendant, Gerald Bates (Bates). The plaintiff's complaint sounds in negligence. Bates was a temporary employee at the work site by virtue of his placement there by defendant Spec Personnel, LLC (Spec). The forklift in question, known as a "Lull," was provided by third-party defendant Elite Construction Rentals, Inc. (Elite). By way of third-party complaint dated July 23, 2010, Bates and Spec bring an action for indemnification against Elite pursuant to Connecticut's Product Liability Act, CGS § 52-572m et seq., and § 52-240b. The third-party complaint also includes allegations of common-law indemnification. Elite filed a motion to strike the third-party complaint. It first avers that Bates and Spec are not product sellers and so cannot bring an indemnification claim pursuant to the CPLA. It further argues that the complaint is inadequate to sustain a common-law cause of action for indemnifcation. For the reasons set forth below, the motion to strike is GRANTED.
In its opposition, Spec and Bates only argue the adequacy of a common-law indemnification claim.
Standard of Review
The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading. RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994). The court must "examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action. (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [w]hat is reasonably 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 (2000).
The court is limited "to a consideration of the facts alleged in the complaint. A speaking motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn 845 (1996).
For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. supra at 383 n. 2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc. 224 Conn. 210, 215 (1992).
Discussion
The first basis upon which Elite seeks to strike the third count of the third-party complaint is that Bates and Spec are not "product sellers" and so cannot bring a claim for indemnification pursuant to the CPLA.
At paragraph 30 of count three, Spec and Bates unequivically aver that the claim is brought pursuant to the CPLA. Indeed, the allegations clearly implicate the CPLA. Elite argues that pursuant to CGS § 52-577a(b), only a product seller may implead a third party under the CPLA. While this is clearly the law, the law only applies in those circumstances where the original complaint is brought pursuant to the CPLA. Section 52-577a is the statute of limitations for product liability claims. Subsection (a) provides that "No product liability claim . . . shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered,. . . ." Subsection (b), on which Elite relies, provides:
(b) In any such action, a product seller may implead any third party who is or may be liable for all or part of the claimant's claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court.
There is no question that plaintiff Wohlfert's complaint is not brought pursuant to the CPLA. Thus, Section 52-577a(b) is inapplicable.
Of note, the motion to implead Elite does not reference as authority Section 52-577a. Rather, the motion to implead Elite referenced Section 52-102a(a), the statute through which indemnification complaints are typically pursued.
However, to the extent Spec seeks indemnification under the CPLA, the claim fails as a matter of law. In seeking indemnification under the CPLA, Spec seeks to recover for monetary damages that may be assessed against it for injuries and losses suffered by the plaintiff. Those damages, if incurred, are "commercial losses" and are therefore not recoverable under the CPLA. See, Davey v. Professional Properties, II, LLC, Superior Court, judicial district of Waterbury, Dkt. No. X02 CV 06 5004272 (March 20, 2009, Eveleigh, J.) (third-party complaint which seeks indemnification for damages which may be assess as a result of the plaintiff's negligence claims are "commercial losses" and not recoverable); Thomas v. Seaport Motor Inn, Inc., Superior Court, judicial district of New London at Norwich, Dkt. No. 122625 (August 26, 2002, Hurley, J.T.R.) (third party's claim for indemnification from a product manufacturer for personal injuries claimed against it under a premises liability theory alleged potential commercial loss and was therefore barred under Section 52-572n(c)). "Commercial loss" is economic injury, whether direct, incidental, or consequential, including property damage and damage to the product itself incurred by persons regularly engaged in business activities consisting of providing goods or services in competition." Producto Machine Co. v. Ajax Magnethermic Corp., Superior Court, judicial district of Fairfield at Bridgeport, Dkt. No. CV 23 6005 (November 10, 1987, Burns, J.).
The question remains however whether the third count of the third-party complaint presents a cognizable claim under common law principles of indemnification.
As indicated, the third count states explicitly that it is brought pursuant to the terms of the CPLA. However, it also incorporates allegations which implicate common-law principles of indemnification. The court will address those as well.
"Ordinarily, there is no right of indemnity or contribution between joint tort-feasors." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697 (1997), quoting, Kyrtata v. Stop Shop, Inc. 205 Conn. 694, 697-98 (1988). However, "where, . . . one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury . . . Under the circumstances described, we have distinguished between `active aor primary negligence,' and `passive or secondary negligence.' . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active one." Id.
Thus, in order to maintain a common-law indemnification claim, Bates and Spec must allege: (1) that Elite was negligent; (2) that Elite's negligence was the direct, immediate cause of the accident and injuries; (3) that Elite was in control of the situation to the exclusion of Spec and Bates; and (4) that neither Spec nor Bates knew of such negligence, had no reason to anticipate it, and could reasonably rely on Elite not to be negligent. Id., at 698; see also, Kyrtatas v. Stop Shop, Inc., 205 Conn. 698 (1988).
The third-party complaint dated July 23, 2010 contains a multitude of allegations of negligent conduct by Elite. This court has found no prohibition against allegations which fall within the ambit of the CPLA as being the basis for the active or primary negligence element of an indemnification claim. See, Peerless Insurance Company v. Tucciarone, 48 Conn.App. 160 (1998) (plaintiff's brought a complaint sounding in negligence against the defendants, owners of certain property destroyed by fire, and thereafter the owner/defendants brought a third-party complaint against the manufacturer of the product which allegedly caused the fire claiming violations of the CPLA and in a separate count, seeking indemnification); Therian v. Big Y Foods, Inc. Superior Court, judicial district of Hartford, Dkt. No. CV 010 809096 (March 27, 2003) (Wagner, J.T.R.) (Plaintiff brought a negligence action against the defendant Big Y who filed a third-party complaint against the manufacturer of the container from which the liquid which caused the plaintiffs fall had leaked); Lee v. Northeast Graphics, Inc., Superior Court, judicial district of New Haven, Dkt. No. CV 0326689 (April 7, 1993, Stanley, J.) (Defendant in a negligence action filed a third-party complaint against machine manufacturer alleging a defective product and seeking common-law indemnification); Coates v. Rolscreen Company, Superior Court, judicial district of New Haven, Dkt. No. CV 91 0330146 (June 14, 1994, Hadden, J.) (Defendant in a claim based upon negligence filed a third-party complaint against a window/screen manufacturer alleging that the window/screen was defective by virtue of the manufacturer's negligence).
The outcome would be decidedly different if Spec and Bates sought to bring an apportionment complaint against Elite alleging violations of the CPLA, even allegations sounding in negligence. Such claims would be barred. Allard v. Liberty Oil Equipment Co., 253 Conn. 787 (2000).
Elite argues that count three is insufficient insofar as the complaint fails to allege that Elite was in exclusive control of the situation which caused Mr. Wohlfert's injuries. After alleging a littany of tortious acts, the complaint alleges: "At all times relevant, Elite was in control of the situation to the exclusion of the Defendants/Third Party Plaintiffs."
Although the question of exclusive control of the situation is usually a question of fact, Weintrab v. Richard Dahn, Inc, 188 Conn. 570, 573 (1982), there are circumstances under which the issue is one for the court. See, Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704 (1997). Indeed, Skuzinski is instructive. There, the plaintiff brought a suit against the defendant when he was struck and injured by a truck owned by the defendant and operated by one of its employees. At the time, the plaintiff was walking in the road. The defendant brought a third-party complaint against the adjacent property owner on the theory that it's negligent failure to clear snow and ice from the sidewalk forced the plaintiff to walk in the street, thereby causing his injuries when he was struck by the truck. The Supreme Court held that the third-party complaint was properly stricken, though on grounds other than those relied upon by the trial court. For purposes of considering the validity of the complaint, the Court accepted that the third-party defendant was in exclusive control over the snow covered sidewalk; that the accumulation of snow and ice "forced" the plaintiff to walk in the street; and that the third-party defendants were negligent in their failure to clear the sidewalk or warn the plaintiff of its perils. Id. at 705. The Court held that these allegations, even if proven, could not result in a jury finding that the third-party defendants were in exclusive control over "the situation, that is to say over an accident caused by an unrelated party and occurring in the adjoining public roadway." Id. Thus, "the situation" or "dangerous condition giving rise to the accident" over which exclusive control is alleged must be identified with reference to the claims of the plaintiff. Gordon v. O'Neall Construction, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. X08 CV 07 5003336 (May 27, 2009, Jennings, Jr., J.T.R.), citing, Skuzinski, supra. See also, Casadonte v. Northeast Property Group, Superior Court, judicial district of New London, Dkt. No. CV 10 6004476 (Mar. 24, 2011, Cosgrove, J) (motion to strike denied where the indemnification complaint adequately alleged that the defendant had exclusive control over the landscaping, which is identified by the plaintiff as the conduct which gave rise to her injuries); Irazaary v. Moskowitz Co., Superior Court, judicial district of Stamford-Norwalk, at Stamford, Dkt. No. FST CV 085007501 S (Apr. 6, 2010, Brassel-Massaro, J.) (motion to strike indemnification claim denied where complaint adequately alleges exclusive control over conditions of condominium unit, which conditions were the alleged cause of the plaintiff's injuries.) Indeed, an allegation of exclusive control in a third-party complaint for indemnification must be considered as against the allegations of the original plaintiffs complaint because the grounds alleged in that complaint will be the basis for holding the third-party plaintiff liable to the original plaintiff. See, Wynn v. Labbadia, Superior Court, Judicial District of New Haven, Docket No. CV90-302052 (September 1, 1994, Hadden, J.), citing Cimino v. Yale University, et al., 638 F.Sup. 952 (D.Conn. 1986).
It is difficult to distinguish the circumstances in Skuzinski and the cases cited above from those presented here. Wohlfert's complaint against Spec and Bates clearly identify the "dangerous condition giving rise to the accident" to be the manner in which the forklift was operated. Bates and Spec argue however that "the situation" over which Elite had exclusive control is, generally, the merchantability of the forklift. For that reason, the allegations of the complaint fail to adequately plead common-law indemnification. See, Lee v. Northeast Graphics, Inc., Superior Court, judicial district of New Haven, Dkt. No. CV 0326689 (April 7, 1993, Stanley, J.) (Allegation that the third-party defendant was in exclusive control over the manufacture and sale of the allegedly defective machine was insufficient to allege exclusive control over the situation which caused the plaintiff's injuries); Therian v. Big Y Foods, Inc., Superior Court, judicial district of Hartford, Dkt. No. CV 010 809096 (March 27, 2003) (Wagner, J.T.R.) (Allegation that the third-party defendant had exclusive control over manufacture of alleged defective bottle was insufficient to meet pleading requirements of common-law indemnification); Flye v. American Medical Response of Connecticut, 21 Conn. L. Rptr. 674 (June 2, 1998, Radclifee, J.) (third-party complaint against hospital which averred that the hospital was in exclusive control of the premises was insufficient to establish exclusive control of the situation which produced the plaintiff's injuries).
In addition, Elite claims that the nature of the plaintiffs claims against Bates and Spec are such that common-law indemnification requirements cannot be satisfied. In essence, Elite avers that since a finding of liability to the plaintiff by Spec or Bates necessarily involves a finding of active negligence on their part, as a matter of law, a finding of passive or secondary negligence cannot occur in order to satisfy an indemnification claim.
CGS § 52-102a allows for impleader "against persons who are or may be liable to the defendant for part or all of the plaintiffs claim." Thus, a third-party complaint is premised on the plaintiff prevailing against the defendant/third-party plaintiff. Macarone v. Hawley, 7 Conn. App. 19, 22 (1986). Where a motion to strike a third-party complaint is filed on the basis that the third-party defendant cannot, as a matter of law, be liable to the defendant for the claims by the plaintiff, the court assumes that the plaintiff prevailed in his cause of action against the defendant in the original action. Weintraub v. Richard Dahn, Inc. 188 Conn. 570, 573 (1982) (the finding of the jury in the first-party action that the defendant third party plaintiff was negligent was binding upon the defendant third-party plaintiff in the action for indemnification). In an indemnification action, the plaintiff is bound by all findings without which the judgment against him, for which he seeks indemnification, could not have been rendered. Preferred Accident Ins. Co v. Musante, Berman Steinberg, 133 Conn. 536, 541 (1947). Therefore, if a judgment in the first action against the defendant/third-party plaintiff rests on a fact that is fatal to recovery in the action against the third-party defendant, the third-party complaint cannot be maintained. Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 413 (1965).
However, whether the defendant/third-party plaintiff's negligence, even if found by the jury, was active or passive, is generally a question for the jury. Weintraub v. Richard Dahn, Inc., supra. In Weintraub, the jury's determination that the defendant operated his truck in a negligent fashion, did not defeat, as a matter of law, the defendant's indemnification claim against the general contractor who was alleged to be primarily negligent. Id. In deciding the motion to strike, the court accepts all facts well-pled. The third-party complaint adequately alleges that Elite's negligence was the active and the direct cause of the plaintiff's injuries and that any negligence found on the part of Bates and Spec was passive and secondary in nature.
For the reasons set forth above, the motion to strike is granted.