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Huertas v. Walgreen Eastern Co.

Connecticut Superior Court Judicial District of New Haven at Meriden
Mar 15, 2011
2011 Ct. Sup. 7086 (Conn. Super. Ct. 2011)

Opinion

No. CV10-6001204-S

March 15, 2011


MEMORANDUM OF DECISION


FACTS

This premises liability action arises from the alleged slip and fall by the plaintiff, Lillian Huertas, at a store owned by the defendant and third-party plaintiff, Walgreen Eastern Co., Inc. (Walgreen), and located at 425 West Main Street in Meriden (Meriden store). On March 8, 2010, the plaintiff filed a one-count complaint against Walgreen. On August 13, 2010, Walgreen filed a motion to cite in the third-party defendant, McClean Services, LLC (McClean), along with a two-count third-party complaint. In its third-party complaint, Walgreen alleges that an agreement existed between itself and McClean, which obligated McClean to clean the floors of the Meriden store in a workmanlike manner. In count one of its third-party complaint, Walgreen alleges that, if the plaintiff fell as she alleges, it was because McClean breached its contract with Walgreen by its failure to clean the floors in a workmanlike manner. In count two of its third-party complaint, Walgreen alleges that, if the plaintiff fell as she alleges, it was because McClean was negligent. As a result, Walgreen alleges that McClean should be required to defend and indemnify Walgreen.

In her complaint, the plaintiff alleges that, on June 2, 2009, she slipped and fell on water at the Meriden store "due to the negligence and carelessness of'" Walgreen.

The motion was granted by the court, Fischer, J., on August 30, 2010.

In particular, Walgreen alleges: (1) McClean's negligence was the direct and immediate cause of any injuries; (2) McClean had exclusive control over the situation; and (3) Walgreen did not know of McClean's negligence, had no reason to anticipate it, and could reasonably rely on McClean to act without negligence.

On December 15, 2010, McClean filed a motion to strike on the ground that both counts of the third-party complaint fail to state a legally sufficient cause of action. The motion is accompanied by a memorandum of law pursuant to Practice Book § 10-42(a). On January 14, 2011, Walgreen filed an objection to McClean's motion to strike, pursuant to Practice Book § 10-42(b). The matter was heard at short calendar on January 24, 2011.

DISCUSSION

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "If any facts provable under the express and implied allegations in the plaintiffs complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "Each motion to strike raising any . . . claims of legal insufficiency . . . shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41. "Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).

In the present case, McClean has failed to set forth the grounds of insufficiency in its motion to strike. Furthermore, Walgreen has not waived this requirement, as it has filed a proper objection to McClean's motion on this basis. Therefore, the motion to strike is denied on the ground that McClean has failed to comply with the mandates of Practice Book § 10-41. See Stuart v. Freiberg, supra, 102 Conn.App. 861.

Even if this court reviews the grounds of insufficiency raised in McClean's memorandum of law, this court would still deny the motion to strike. In its memorandum of law, McClean argues that the first count of the third-party complaint is legally insufficient because Walgreen: (1) fails to allege whether the agreement was oral or written; (2) fails to plead indemnification as a term of the agreement; and (3) fails to allege substantial compliance on its behalf. Furthermore, McClean argues that the second count of the third-party complaint is legally insufficient because Walgreen: (1) fails to plead specific facts in support of its contention that McClean had exclusive control over the situation; and (2) had a nondelegable duty to the plaintiff, which prohibits its indemnity claim based on tortious conduct.

In response, Walgreen counters that the first and second grounds raised by McClean with regard to the first count and the first ground raised by McClean with regard to the second count were not properly briefed by McClean because it fails to cite any legal authority to support these contentions. Therefore, Walgreen argues that McClean has abandoned these grounds. In any event, Walgreen argues that, in count one, it has pleaded a sufficient claim for contractual indemnity. Furthermore, Walgreen argues that, in count two, it has pleaded a sufficient claim for common-law indemnity. Moreover, Walgreen argues that the nondelegable duty doctrine does not apply to claims for indemnification.

"Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Practice Book § 10-42(a). The Supreme Court has stated that it is "not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). A number of decisions of the Superior Court have likewise held that a Superior Court is not required to review issues that have been improperly presented to the court. See State v. Bashura, 37 Conn.Sup. 745, 748-49, 436 A.2d 785 (1981); Gorman v. New Milford, Superior Court, judicial district of Danbury, Docket No. CV 08 5004455 (March 17, 2010, Marano, J.).

"[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, 579 A.2d 26 (1990). With regard to indemnity based upon a contractual provision, "if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed . . . The right to indemnity is clear when the obligation springs from a separate contractual relation, such as . . . a contractor's obligation to perform his work with due care . . ." Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989). With regard to indemnity based upon tortious conduct, "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 [third-party] 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 [third-party] plaintiff, and (4) that the [third-party] 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." (Citation omitted; internal quotation marks omitted.) Burkert v. Petrol Plus of Naugatuck, Inc., supra, 74.

In the present case, with regard to the first count, McClean has failed to support its first two grounds for insufficiency with any legal authority. Therefore, this court considers these grounds to be abandoned. While McClean has supported its third ground for insufficiency with legal authority, the case cited is inapposite to the facts presented in Walgreen's third-party complaint. See Argentinis v. Gould, 219 Conn. 151, 157, 592 A.2d 378 (1991) (builder cannot maintain action on contract to recover unpaid balance without substantial performance). Argentinis did not consider the requirements for indemnification based upon a contractual provision whatsoever. Therefore, the first count of Walgreen's third-party complaint is not legally insufficient based on the grounds relied upon by McClean.

In any event, there is no authority for the proposition that Walgreen was required to allege whether the contract was oral or written and contradictory authority for the proposition that Walgreen must plead indemnification as a term of the agreement. Indemnity may be based upon an implied promise of indemnity. See Ferryman v. Groton, supra, 212 Conn. 144-45.

With regard to the second count, McClean has failed to support its first ground for insufficiency with any legal authority and this court considers this ground to be abandoned. McClean, however, has supported its second ground for insufficiency with legal authority. Nevertheless, the cases relied upon by McClean do not stand for the proposition that Walgreen cannot recover for indemnity based upon the tortious conduct of McClean due to Walgreen's nondelegable duty. See Gazo v. Stamford, 255 Conn. 245, 256, 765 A.2d 505 (2001) (concluding that nondelegable duty doctrine "does not necessarily preclude liability on the part of the independent contractor"); Smith v. Greenwich, 278 Conn. 428, 460, 899 A.2d 563 (2006) (concluding that "a defendant that owns or controls property may not bring an apportionment claim against a contractor hired to carry out the defendant's nondelegable duties" [emphasis added]). Furthermore, the Supreme Court has stated to the contrary that "[i]t is widely recognized that, when one party is vicariously liable for another party's conduct, the appropriate remedy for an innocent party who has been held vicariously liable is a claim for indemnity rather than for apportionment." (Emphasis added.) Smith v. Greenwich, supra, 278 Conn. 462. Therefore, the second count of Walgreen's third-party complaint is not legally insufficient based on the grounds relied upon by McClean.

In any event, while Walgreen must plead that McClean was in control of the situation that caused the plaintiff's injury to the exclusion of Walgreen in order to plead indemnity based upon tortious conduct; see Burkert v. Petrol Plus of Naugatuck, Inc., supra, 216 Conn. 74; there is no authority for the proposition that Walgreen must allege the specific facts giving rise to such allegations of control. Nevertheless, Walgreen has pleaded in its third-party complaint that McClean had exclusive control over the situation and has set forth sufficient facts to support its allegation of control.

CONCLUSION

For all the foregoing reasons, McClean has failed to comply with the mandates of Practice Book § 10-41 and the motion to strike is denied.


Summaries of

Huertas v. Walgreen Eastern Co.

Connecticut Superior Court Judicial District of New Haven at Meriden
Mar 15, 2011
2011 Ct. Sup. 7086 (Conn. Super. Ct. 2011)
Case details for

Huertas v. Walgreen Eastern Co.

Case Details

Full title:LILLIAN HUERTAS v. WALGREEN EASTERN CO., INC

Court:Connecticut Superior Court Judicial District of New Haven at Meriden

Date published: Mar 15, 2011

Citations

2011 Ct. Sup. 7086 (Conn. Super. Ct. 2011)