Opinion
CV156027719S
01-22-2018
The CONNECTICUT LIGHT AND POWER CO. v. JOKEN DEVELOPMENT CORPORATION et al.
UNPUBLISHED OPINION
OPINION
RORABACK, J.
I
BACKGROUND
The plaintiff in the above-captioned action, the Connecticut Light and Power Company (" CL & P" ), alleges that an important component of its underground transmission system was seriously damaged in the course of a sewer construction project undertaken by the defendants on behalf of the Town of Greenwich. The sewer project in question was designed by the engineer defendants, AECOM Services Inc., AECOM USA Inc., and AECOM Technical Services Architects & Engineers, Inc. (collectively " AECOM" ), and the actual construction work was performed by the contractor defendant, Joken Development Corp (" JOKEN" ). AECOM has brought crossclaims against JOKEN that allege, inter alia, that JOKEN owes it a duty to defend this lawsuit pursuant to the terms of the contract governing this project, and that JOKEN has breached its contractual obligation to furnish and pay for that defense.
AECOM has brought a motion for partial summary judgment on counts one and two of its crossclaim complaint, alleging a duty to defend, and a breach of contract for failure to defend, respectively. AECOM argues that there is no genuine issue of material fact that JOKEN must furnish AECOM with a defense, and pay for that defense contemporaneously with the proceedings as they advance in this action. JOKEN opposes this motion on the grounds that its obligations to AECOM under the contract are strictly obligations to indemnify AECOM for both attorneys fees and damages should AECOM be found liable to CL & P in this action on grounds which entitle it to such indemnification.
II
DISCUSSION
" [S]ummary 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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016).
" [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " A genuine issue has been variously described as a triable, substantial or real issue of fact ... and has been defined as one which can be maintained by substantial evidence." (Citation omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment. Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). " ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." Id., 379.
The contractual language at issue here, containing the purported agreement to defend and indemnify, is as follows: " [JOKEN] shall indemnify and save harmless ... [AECOM and its agents] from and against any and all claims, demands, suits ... damages, costs and expenses, including attorneys fees, on account of ... damage to or destruction of any property directly or indirectly arising out of ... the work ... and [JOKEN] shall and does hereby assume and agrees to pay for the defense of all such claims ... provided, however, that [JOKEN] shall not be required to indemnify [AECOM] ... against any such damages, occasioned solely by defects in maps ... prepared ... by [AECOM] and/or solely by the negligence or fault of [AECOM] ..."
JOKEN argues that the contract language only obligates it to indemnify AECOM for the costs of defense in the event that CL & P either does not prevail on its claims against AECOM, or if AECOM is found liable to CL & P for damages which are not occasioned solely by defects in AECOM’s work product or AECOM’s negligence. In support of this argument, JOKEN cites to a Supreme Court case interpreting a statute and a Superior Court case interpreting a contract.
In the Supreme Court case of Vibert v. Board of Education, 260 Conn. 167, 793 A.2d 1076 (2002), a physical education teacher accused in a civil action of sexual assault, and other wrongs, sought an order from the court compelling the board of education which employed him to pay for a defense attorney of his choosing in connection with the defense of that civil action. His claim was rooted in a statute which, among other things, obligated the board to " protect and save harmless" any employee found liable for negligent conduct. In addition, this statute permitted the board of education to recoup from its employee legal fees incurred in the defense of any such claim in cases where the employee was found to have engaged in willful or wanton misconduct. In rejecting the employee’s claim that he was entitled to have the board of education pay for a lawyer of his choosing, the Supreme Court concluded: " Every word and phrase is presumed to have meaning, and we do not construe statutes so as to render certain words and phrases surplusage ... The first sentence of § 10-235(b), which contains the ‘protect and save harmless’ language, clearly mandates that a board of education indemnify a teacher in actions that fall within its purview. The indemnification required pursuant to the first sentence specifically includes ‘legal fees and costs ...’ General Statutes § 10-235(b). Thus, it is apparent from the clear language of the statute that the legislature intended to require a board of education to ‘protect and save harmless,’ that is, to indemnify, a teacher for legal expenses. Notwithstanding the existence of this duty to indemnify in the first sentence of subsection (b) of § 10-235, the plaintiff would have us read the imposition of a broader duty to defend into § 10-235(b) by virtue of the last sentence of subsection (b) [which allows the board to recoup expenses incurred in providing such defense]. This is an untenable interpretation of the statute because a duty to indemnify for attorneys fees cannot coexist with a duty to defend: it would be impossible for a board of education to indemnify a teacher for attorneys fees if the board of education already has provided the teacher with counsel." (Citation omitted; internal quotation marks omitted.) Id., 176.
In the Superior Court case cited by JOKEN, Williams v. Westport, Superior Court, judicial district of Fairfield, Docket No. CV-13-6032960-S (December 15, 2015, Kamp, J.), the court found that the Vibert interpretation of § 10-235 applied with equal force in a case where a finding of a duty to defend was sought by a municipal defendant (Westport), and in support of that claim the party relied on contract language that entitled it to be indemnified for attorneys fees incurred as a result of defending against claims arising from the performance the work of the co-defendant contractor. " Although the Vibert court was conducting a statutory analysis and rested its holding, in part, on principles of statutory construction, its reasoning would appear to apply to the contract language at issue in the present case, given that the indemnity provision uses ‘indemnify and hold harmless’ language and provides for the reimbursal of attorneys fees to Westport in the event that Westport’s liability to the plaintiffs falls within the purview of the indemnity provision." Id. Notably absent from the contract language in Williams and distinctly present in the contract under review, however, is express language that requires the contractor to " assume" the defense of the suit and to " pay for" that defense.
AECOM thus disputes JOKEN’s position that the language in JOKEN’s contract does not now impose a duty on JOKEN to defend AECOM in the action now pending. For guidance, AECOM points to language from a Massachusetts case for the proposition that " [t]he inclusion of attorneys fees as an expense for which there shall be indemnity does not automatically impose a duty to defend similar to that inherent in an insurance contract ... Contrast Urban Investment & Development Co. v. Turner Construction Co., 35 Mass.App.Ct. 100, 107, 616 N.E.2d 829 (1993), in which the indemnity clause required the subcontractor to ‘assume, on behalf of [the general contractor] ... the defense of any action.’ " (Citation omitted.) Miley v. Johnson & Johnson Orthopaedics, 41 Mass.App.Ct. 30, 34, 668 N.E.2d 369 (1996), cert. denied, 423 Mass. 1111, 672 N.E.2d 539 (1996).
In Urban, the court found that a duty to defend could co-exist with an obligation to indemnify when the contract provided that the subcontractor " agrees to indemnify and save harmless [the contractor] ... from and against any and all such claims ... including legal fees and disbursements that [the contractor] ... may ... sustain ... as a result thereof and the subcontractor agrees to and does hereby assume, on behalf of [the contractor] the defense of any action at law or in equity which may be brought against [the contractor] ..." (Emphasis removed.) Urban Investment & Development Co. v. Turner Construction Co., supra, 35 Mass.App.Ct. 106.
Similarly, in Turner Construction Co. v. Zurich American Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-07-5004719-S (April 14, 2009, Radcliffe, J.), the court interpreted specific contract language embedded in a sentence otherwise detailing a duty to indemnify, to nevertheless impose a separate duty to defend. The language under scrutiny in that case stated that " [t]he contractor agrees to and does hereby assume on behalf [of the parties also being indemnified] the defense of any action which may be brought against [them]." Id.
" If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 8, 35 A.23d 177 (2011). " A contract is unambiguous when the language is clear and conveys a definite and precise intent ... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity." (Internal quotation marks omitted.) Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 102-03, 84 A.3d 828 (2014). " [A] contract must be viewed in its entirety, with each provision read in light of the other provisions ... and every provision must be given effect if it is possible to do so." (Internal quotation marks omitted.) Id., 103. " Furthermore, a presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature." United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002). In this case, the inclusion in the subject contract of the language that JOKEN agreed " to assume and pay for the defense" of all claims brought against AECOM in connection with this project is unambiguous and subject to but one reasonable interpretation: that JOKEN undertook the duty to defend AECOM from any such claims. It is possible, as evidenced by the contract now under review, for commercial parties to accept express language allocating risk such that one party agrees both to indemnify for attorneys fees related to a claim and to provide a defense in the event the claim ripens into a lawsuit against the party indemnified. Accordingly, there is no genuine issue of material fact that AECOM is entitled to a judgment of liability against JOKEN as a matter of law on counts one and two of its crossclaims. Further proceedings will be scheduled to determine the amount of damages which AECOM is entitled to, and to enter such additional orders as are required to enforce the liability judgment against JOKEN.
III
CONCLUSION
For the foregoing reasons, AECOM’s motion for summary judgment is granted.