Opinion
UWYCV146025695S
03-23-2016
Roseann Gugliotti v. Naugatuck Valley Lawn Maintenance et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barbara Brazzel-Massaro, J.
INTRODUCTION
This action was originally filed by writ, summons, and complaint on November 25, 2014. The plaintiff named four separate defendants. Thereafter, the plaintiff filed an amended complaint on January 22, 2015. In response, the defendant Ferrandino & Sons, Incorporated, filed an answer, special defense and cross claim against the defendant Naugatuck Valley Lawn Maintenance. (NVLM). The cross claim was in four counts alleging, 1) Breach of contract; 2) contractual indemnification; 3) common-law indemnification; and 4) arbitration and stay of action. The defendant NVLM has filed a motion to strike Counts One, Three and Four of the cross claim on the grounds that Count One does not arise from the same transaction as the principal case; that Count Three is insufficiently pleaded and Count Four does not establish proper grounds for a stay. NVLM filed an objection to the motion to strike dated May 8, 2015. The court heard argument on January 25, 2016.
FACTUAL BACKGROUND
The plaintiff Roseann Gugliotti (Gugliotti) has filed this action against the defendants Naugatuck Valley Lawn Maintenance (NVLM), Getty CT Leasing, Incorporated, (Getty), GPM Investments LLC, (GPM) and Ferrandino & Sons, Incorporated (Ferrandino). She alleges that on November 25, 2014 she was a patron at the Valero Gasoline Station owned by Getty CT Leasing located at 1030 Hamilton Avenue in the City of Waterbury when she was caused to slip and fall on an icy area by the gas pumps. The plaintiff contends that as a result of the slip and fall she has suffered a number of physical and economic injuries.
Gugliotti alleges that all of the defendants are liable because they either owned, possessed, maintained, and/or controlled the premises, including the Valero Gas Station and the surrounding parking lot driveway, and sidewalk.
Ferrandino alleges in its cross claim against NVLM that at the time of Gugliotti's injuries there was a subcontractor agreement between NVLM and Ferrandino. The subcontractor agreement provided that NVLM would be responsible for the maintenance of the area where Gugliotti allegedly slipped and fell. The maintenance included, but was not limited to, snow plowing, ice removal, sanding and salting the parking lot, and treating the sidewalks. The subcontractor agreement further provided that NVLM would defend Ferrandino against any and all allegations asserted in any and all claims reasonably related to services provided pursuant to the subcontractor agreement. Furthermore, under the agreement, NVLM would indemnify and hold harmless Ferrandino from and against any and all liabilities, obligations, claims, demands, causes of action, losses, expenses, damages, fines, assessments, awards, deficiencies, judgments, settlements and penalties in connection with NVLM's performance under the agreement. In addition, the agreement provided that NVLM would carry and maintain comprehensive liability coverage and the Ferrandino would be named as an additional insured. The subcontractor agreement also contained an arbitration clause requiring that all disputes, controversies, and claims arising out of or related to the agreement or the rights or obligations of the parties be resolved through binding and final arbitration.
Ferrandino requested that NVLM undertake to defend, indemnify, save harmless, and reimburse it for any losses or expenses related to the Gugliotti action. Ferrandino alleges that NVLM has failed to or refused to indemnify, save harmless, or reimburse Ferrandino. Thus, Ferrandino claims that NVLM is liable for a breach of contract. Additionally, Ferrandino claims that NVLM is liable for contractual indemnification. Lastly, Ferrandino alleges that NVLM should submit to an arbitration in accordance with the agreement, and it has refused to do so thus Ferrandino is seeking a stay and order to compel arbitration.
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). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. City of Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). Further, our Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987). " [T]he trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980). " 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 § [10-39(c)], 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 § 10-39(c)] 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).
Practice Book § 1-8, however, provides: " The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case were it shall be manifest that a strict adherence to them will work surprise or injustice." " Further, the rules of practice must be construed reasonably and with consideration of this purpose . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding." (Internal quotation marks omitted.) Shapero v. Mercede, 77 Conn.App. 497, 508 n.18, 823 A.2d 1263 (2003); see e.g. Hartford Casualty Ins. Co. v. Sapienza, Superior Court, judicial district of Hartford, Docket No. CV 14-6054554-S (December 11, 2015, Huddleston, J.) (concluding that defendant's failure to file separate memorandum of law in support of motion to strike was not fatal because in motion defendant invoked appropriate principles of law such that put plaintiff on notice of argument); Litevich v. Probate Court, Superior Court, judicial district of New Haven, Docket No. CV 12-6031579-S, (May 17, 2013, Wilson, J.) (applying exception to general rule that successive motions to strike are impermissible when second motion is filed solely to cure Practice Book defect, is timely filed, does not include new or different grounds, opposing party is not prejudiced, and interests of judicial economy would be best served by considering second motion). " Although not generally stated in these terms, the purpose of a motion to strike (and other pre-trial motion practice) is to allow the court and parties to focus on the true issues that need to be litigated, while removing issues that are alleged but that should not be allowed to remain in the case for trial due to legal insufficiency. The purpose of pleadings is to frame, present, define, and narrow the issues and to form the foundation of, and to limit, the proof to be submitted on the trial." (Internal quotation marks omitted.) Krayeski v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 14-6022177S (November 24, 2015, Povodator, J.) . As a threshold issue, Ferrandino argues that NVLM's motion to strike must be summarily denied for a procedural defect. Specifically, Ferrandino notes that NVLM fails to state the specific grounds for striking its cross claims on the face of the motion in violation of Practice Book § 10-39(b). In raising this argument, Ferrandino did not waive this defect and the court must take the alleged defect under consideration. NVLM's motion states: " Pursuant to Practice Book Section 10-39 et seq., the Cross-Claim Defendant, Naugatuck Valley Lawn Maintenance moves to strike the Cross Complaint dated March 10, 2015, in its entirety, A Memorandum of Law is Attached."
While it is clear that NVLM does not state its reasons for challenging Ferrandino's cross claims with the requisite specificity, Practice Book § 1-8 indicates that the purpose of the Practice Book rules are to facilitate business and advance justice and, therefore, the rules should be construed liberally when strict adherence would result in surprise and injustice. Our Appellate Court has further indicated that these rules should be construed reasonably such that courts can provide just determinations in every proceeding. In accordance with these principals and the purpose for a motion to strike, summarily denying NVLM's motion to strike would not serve the purpose of facilitating business, advancing justice, or encouraging judicial economy. Under the circumstances, summarily denying NVLM's motion to strike based on Ferrandino's argument leaves open the opportunity for NVLM to refile its motion to strike to cure the Practice Book defect on the face of its motion. If the court were to deny the motion outright and NVLM refiled its motion pursuant to the recognized exception among the Superior Courts, then the parties would be required to reargue the motion and the court would be required to rehear and to render another decision on the same matter absent the defect.
Moreover, NVLM's memorandum of support of its motion to strike clearly states its grounds for striking and cites legal authority to support its arguments such that Ferrandino has adequate notice of NVLM's position for moving to strike. Furthermore, Ferradino's opposition to NVLM's motion to strike does not indicate that NVLM's failure to state its specific reasons for striking Ferrandino's cross claims did not put it on notice of NVLM's arguments or that it was so prejudiced that it could not raise an objection to the motion. In addition, as this case is scheduled for trial in April, consideration of NVLM's motion would be particularly relevant to serving the purpose of a motion to strike and judicial economy in that it would focus the issues to ones that need to be heard and tried and remove the issues that are inappropriately raised under the circumstances. Thus, the court denies the motion to strike on procedural grounds.
Looking to the substance of NVLM's motion, it argues that Ferrandino raised improper cross claims and that Ferrandino did not sufficiently plead its cross claims. First, NVLM maintains that Ferrandino's cross claim for breach of contract does not arise out of the same transaction of Gugliotti's complaint as required by Practice Book § 10-1. Second, NVLM contends that Ferrrandino has not alleged sufficient facts to support its claim for common-law indemnification. Specifically, NVLM contends that Ferrandino has not shown that NVLM was in exclusive control of the situation to the exclusion of Ferrandino. Third, NVLM argues that Ferrandino has not sufficiently pleaded facts to support a need for stay. In response, Ferrandino, maintains that its breach of contract claim arises out of the same transaction as Gugliotti's complaint. Ferrandino further responds that NVLM misconstrues the exclusive control requirement for common-law indemnity and that the question of exclusive control under the present circumstances is one of fact that cannot be resolved on a motion to strike. Ferrandino also argues that NVLM's challenge to the request to compel arbitration erroneously focuses on whether Ferrandino met its burden to establish the need for stay. As a result, Ferrandino maintains that it has sufficiently pleaded a request for arbitration given the nature of its pleadings and given NVLM's improper grounds for challenging Ferrandino's cross claim.
I.
STANDARD FOR PROPER CROSS CLAIMS
Practice Book § 10-10 provides in relevant part: " In any action for legal equitable relief, any defendant may file . . . cross claims against any codefendant provided that each such . . . cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint; and if necessary, additional parties may be summoned in to answer any such . . . cross claim. A defendant may also file a . . . cross claim under this section against any other party to the action for the purpose of establishing that party's liability to the defendant for all or part of the plaintiff's claim against that defendant." " [Practice Book § 10-10] is a commonsense rule designed to permit the joinder of closely-related claims where such joinder is in the best interests of judicial economy." (Internal quotation marks omitted.) South Windsor Cemetery Assn, Inc. v. Lindquist, 114 Conn.App. 540, 546, 970 A.2d 760, cert. denied 293 Conn. 932, 981 A.2d 1076 (2009). " Where the underlying purpose of [Practice Book § 10-10], to wit, judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially on action, are thwarted rather than served by the filing of a cross claim, the cross claim may properly be expunged." (Internal quotation marks omitted.) CitiMortgage, Inc. v. Rey, 150 Conn.App. 595, 607, 92 A.3d 278, cert denied 314 Conn. 905, 99 A.3d 635 (2014).
In interpreting Practice Book § 10-10, our appellate courts set out the parameters of what has become the " transaction test" for determining the propriety of cross claims. " Our Supreme Court has instructed that the relevant consideration in determining whether the " transaction test" has been met include whether the same issues of fact and law are presented by the complaint and the [cross claim] and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." (Internal quotation marks omitted.) South Windsor Cemetery Assn, Inc. v. Lindquist, supra, 114 Conn.App. 547. " In assessing the legal viability of a [cross claim] and, in particular, whether it arises from the same transaction as the complaint, we have not required a complete identity of issues. Rather, the claims must have a sufficient closeness that the trial of the complaint and [cross claim] will not imperil judicial economy." Citimortgage, Inc. v. Rey, supra, 150 Conn.App. 606. Appellate authority has suggested that the trial court's application and determinations pursuant to the transaction test are discretionary. See Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 21, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999) (" The transaction test [of Practice Book § 10-10] is one of practicality, and the trial court's determination as to whether that test has been met ought not be disturbed except for an abuse of discretion." [Internal quotation marks omitted.]).
In interpreting appellate authority on the transaction test, " the courts seem to be saying that where the legal claim of the complaint and the evidence to prove it is completely different from the claims of the [cross claim] and the evidence that will be used to establish it, there really is no judicial economy to be achieved [by allowing the cross claim to proceed]." Grant v. Lettieri, Superior Court, judicial district of New Haven, Docket No. CV 08-4034372-S, (December 10, 2009, Corradino, J.) (granting motion to strike counterclaim because it did not arise out of same transaction as underlying complaint); see also Criscuolo v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 10-6014191-S, (November 17, 2011, Woods, J.) (granting motion to strike cross claim for breach of contract for failure to obtain liability insurance on ground breach of contract claim was unrelated to underlying negligence claim for personal injuries suffered from slip and fall); Vitale v. Demar's Landscaping, Superior Court, judicial district of New Haven, Docket No. CV 06-500782-S, (November 6, 2007, Lopez, J.) (denying motion to strike cross claim for breach of contract based on failure to obtain necessary insurance on ground that transaction test is not to be rigidly applied and, therefore, breach of contract claim had sufficient connection to underlying negligence claim from slip and fall to survive motion); Fitzpatrick v. Cornucopia Food Services Inc., Superior Court, judicial district of Hartford, Docket No, CV 94-0543832, (December 12, 1995, Wagner, J.) (granting motion to strike cross claim for breach of contract based on failure to obtain liability insurance on grounds that cross claim did not relate to underlying claim for negligence from slip and fall and that argument that contract would be introduced as evidence related to negligence claim was not enough to satisfy transaction test).
In the present case, NVLM argues that neither the issues involving the alleged contract nor the alleged breach of that contract by NVLM relates to the transaction that initiated Gugliotti's lawsuit, namely, her slip and fall on the premises. NVLM relies on the Superior Court's decision in Fitzpatrick . In response, Ferrandino contends that its cross claim for breach of contract does arise out of the same transaction as Gugliotti's case in that NVLM's breach of its duties to defend and to indemnify under the alleged contract only arises as a result of Gugliotti's slip and fall and her subsequent civil action. Ferrandino explains that NVLM's breach is a result of NVLM's refusal, despite demand, to indemnify for losses and to undertake defense of Ferrandino in Gugliotti's negligence action. Ferrandino relies on the Superior Court's decision in Vitale .
At the outset, the decision in Vitale is minimal in its reasoning for finding that the breach of contract claim was sufficiently related to the underlying negligence claims to survive a motion to strike. Thus, relying on Vitale in determining the current motion provides little guidance in finding compliance with Practice Book § 10-10. In accordance with the above cited principles and standards, Ferrandino's breach of contract claim does not arise from the same transaction as Gugliotti's negligence claim. While Gugliotti's slip and fall may have been the event that led to the breach, the substance of Ferrandino's breach of contract ultimately arises out of the subcontractor agreement and of contract law, not Gugliotti's slip and fall and not tort law. The facts and evidence related to and necessary to Gugliotti's negligence claim would not be substantially similar to the facts and evidence related to and necessary to Ferrandino's breach of contract claim. Although the subcontractor agreement may be a piece of evidence offered to the underlying negligence action, this possibility is not enough to satisfy the transaction test. Along this vein, the facts and evidence needed to prove negligence and to prove breach of contract differ such that separate actions for each claim would not result in a substantial duplication of the parties' or court's efforts. Thus, no judicial economy would be achieved by allowing Ferrandino's breach of contract claim to continue in the present case. While Ferrandino is correct in stating that it would not have a breach of contract claim but for Gugliotti's action that gave rise to NVLM's alleged breach, inclusion of the contract claim in a negligence action is more likely to confuse the issues before the trier of fact and take away from the central case brought by Gugliotti. Separation of the claims would further serve judicial economy by keeping the focus of the issues on negligence and, therefore allowing the efficient disposition of the issues.
In Vitale v. Demar Landscaping, Superior Court, judicial district of New Haven, Docket No. CV 06-500782-S, (November 6, 2007, Lopez, J.) the court provided only the following reasoning for denying the motion to strike a cross claim for breach of contract for failure to obtain necessary insurance: " Concerning the Second Count, a claim for breach of contract to obtain necessary insurance has a sufficient connection to the underlying action to withstand a motion to strike. The 'transaction test' is not to be rigidly applied."
Moreover, under the specific circumstances of this cross claim, separation of the breach of contract claim would, again, best serve judicial economy and preserve the rights of all the parties to Gugliotti's actions. Ferrandino alleges that the subcontractor agreement requires binding arbitration of any and all disputes arising from the agreement. Ferrandino has included a request for arbitration and attendant stay. If the subcontractor agreement is as Ferrandino alleges and the breach of contract claim remains in the present action, there is a possibility that Ferrandino can force arbitration to receive the contract dispute and stay the present proceedings if the arbitration clause is deemed valid and enforceable. Such a result would delay the resolution of Gugliotti's claim and put a damper on the other defendant's efforts thus far in Gugliotti's actions.
Ferrandino's other cross claims for contractual indemnification and common-law indemnification do not have this effect given the outcome of these claims turn on the determination of liability in Gugliotti's case. Furthermore, these claims more squarely fit within the parameters of practice book § 10-10 in that they serve the purpose of establishing NVLM's liability to Ferrandino for all or part of the Gugliotti claim against Ferrandino. In short, the rights of the other parties to Gugliotti's action are potentially subject to Ferrandino's breach of contract cross claim that is secondary to Gugliotti's negligence claim and that can be tried separately without imperiling judicial economy. Based upon the above, the court grants the NVLM motion to strike count one of Ferrandino's cross claim for breach of contract on the ground that it does not comply with Practice Book § 10-10.
II.
COMMON-LAW INDEMNIFICATION
Our appellate courts have recognized " 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." (Emphasis in original; internal quotation marks omitted.) Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 770, 57 A.3d 803 (2012), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013). " Indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones." (Emphasis in original; internal quotations marks omitted.) Id., 771. Under the circumstances, the party seeking indemnity must show: (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 accident and the resulting injuries and death; (3) the other party was in control of the situation in 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." Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).
Being " in control of the situation" has been interpreted to mean control over the dangerous condition that exposed a plaintiff to harm by virtue of alleged negligent conduct as opposed to control over the negligent conduct itself. See Pellecchia v. Connecticut Light & Power Co., supra, 139 Conn.App. 775. " Generally, the question of control should not be resolved on a motion to strike because it is a question of fact . . . In a given case, however, 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" (Citation omitted, internal quotation marks omitted.) Id.; see Clark v. Castaldi, Superior Court, judicial district of Fairfield, Docket No. CV 07-5007921-S, (March 4, 2008, Arnold, J.) (denying motion to strike indemnity claim, in part, on ground that determination of exclusive control was question for trier of fact and inappropriately determined on motion to strike); Angelone v. Travisano, Superior Court, judicial district of New Britain, Docket No. CV 97-0483599, (August 3, 1999, Robinson, J.) (denying motion to strike on same grounds).
In the present case, NVLM argues that the facts alleged in Ferrandino's cross claim cannot support a finding that NVLM was in exclusive control of the situation. It further claims that no reasonable juror could find that a snow removal contractor had control over the premises to the exclusion of the owner and tenant of the property. Based on this reasoning, NVLM concludes that the issue of control is a question of law, not fact; and therefore, can be resolved on a motion to strike. In response, Ferrandino contends that NVLM misconstrues the element of control necessary to common-law indemnification. Ferrandino argues that the element of control refers to control over the dangerous condition rather than control of the property itself. In addition, Ferrandino argues that it sufficiently pleaded facts to support the contention that NVLM had exclusive control over the dangerous condition in this case the ice on which Gugliotti slipped and fell.
As our appellate courts have explained, having control over the situation means control over the condition that exposed a plaintiff to injury by virtue of alleged negligent conduct. In addition, our appellate courts have held that the question of control should not be decided on a motion to strike because it is one of fact. In count three of its cross claim, Ferrandino provides facts that support the contention that NVLM had exclusive control over the dangerous condition that allegedly caused Gugliotti's injuries from the slip and fall. Specifically, in paragraph 7 of count three of Ferrandino's cross claim, it alleges, " The Cross-Claim Defendant, NVLM was in control of the situation that gave rise to the Plaintiff's alleged injuries, to the exclusion [sic] the Cross-Claim Plaintiff, in that NVLM had exclusive control of the exterior maintenance including, but not limited to snow plowing, ice removal, sanding and salting the parking lot as well as treating the walkways." When reading these allegations realistically and broadly and favorably to Ferrandino, they are sufficient to plead that NVLM was in control of the situation or condition-the accumulation of ice-that gave rise to Gugliotti's injuries. Moreover, given the alleged existence of the subcontractor agreement and the alleged duties therein, the facts are not so clear cut such that the question of control would be one of law. Thus, the question of exclusive control cannot be determined on a motion to strike and would be more properly submitted to the trier of fact. Given the above, the court finds that Ferrandino has sufficiently pleaded its claim for common law indemnity and the court denies the motion to strike count three of Ferrandino's cross claim for common law indemnity.
III.
ARBITRATION
" Connecticut has adopted a clear public policy in favor of arbitrating disputes. The policy is expressed in General Statues § 52-408, which provides in relevant part: 'An Agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.'" Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 71, 856 A.2d 364 (2004). General Statutes § 52-410(a) provides for the enforcement of such agreement. It provides in relevant part that " [a] party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court . . . for an order directing the parties to proceed with an arbitration in compliance with their agreement . . ." General Statutes § 52-409 sets forth the procedure for requesting a stay if the court compels arbitration. It provides in relevant part: " [T]he court . . . upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration."
In the present case, NVLM moves to strike Ferrandino's request for arbitration and stay of the current action on the ground that Ferrandino fails to sufficiently establish a need for a stay. NVLM cites to federal authority establishing that stay of an action is an extraordinary remedy and setting out the factors that courts should consider upon a request for stay. In addition, NVLM argues that staying the present action would not serve judicial economy and would harm Gugliotti's pursuit of her negligence claim. In response, Ferrandino notes that NVLM relies on inapplicable authority and erroneously focuses on the issue of stay rather than Ferrandino's request to compel arbitration. Ferrandino maintains that NVLM does not have any argument that its request for arbitration is legally insufficient and cites the incorrect authority governing stay under the circumstances. Ferrandino explains that stay in light of a request for arbitration is governed by General Statues § 52-409, which NVLM neither cites nor references in its arguments in support of its motion to strike.
As the court is reviewing a motion to strike, it is limited to the grounds stated in the motion and detailed in the memorandum of law in support, NVLM, indeed, fails to properly attack the legal insufficiency of Ferrandino's request for arbitration. Rather, NVLM attacks Ferrandino's pleadings as insufficient to support the need for stay and as harmful to judicial economy and Gugliotti's rights. In pursuit of these arguments, NVLM cites to irrelevant authority given Ferrandino's request for arbitration is governed by the statutory scheme embodied in chapter 909, title 52 § § 408 to 424 of our General Statutes. Count Four of Ferrandino's cross claim however, focuses on the existence of an arbitration clause in the subcontractor agreement, the enforceability of said clause, and NVLM's failure to honor said clause. Based upon the above, the court finds that NVLM has stated an improper ground for striking Count Four of Ferrandino's cross claim and thus the motion to strike Count Four is Denied.
Ferrandino's request for stay attached to its request for arbitration and NVLM's challenge to this request are likely premature. Under the express language of General Statutes § 52-409, provides that the court being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement. Thus, the court's determination of whether an arbitration agreement, in fact, existed and is enforceable must precede an opportunity to seek stay. Moreover, our Supreme Court has explained: " [Sections] 52-409 and 52-410 serve distinct functions. Section 52-409 provides relief when a party to a contract that contains an arbitration clause desires arbitration of a dispute, and the other party, instead of proceeding with arbitration, institutes a civil action . . . The party desiring arbitration can then seek a stay of the civil action. In contrast, § 52-410 comes into play when no action is pending between the parties, the parties have a contract providing for arbitration, and the parties are unable to agree about the arbitrability of the dispute. In that case, one of the parties, may apply to the trial court, in accordance with the distinct statutory procedure provided by § 52-410, for an order directing the parties to proceed with arbitration." (Emphasis omitted.)
It is of note that count four of Ferrandino's cross claim may be legally Insufficient on other grounds not raised by NVLM. General Statutes § 52-410 provides the procedure by which a party may make an application to the Superior Court to compel arbitration in compliance with a written agreement. The express language of § 52-410(a) provides in relevant part: " The application
CONCLUSION
For the foregoing reason, the court grants NVLM's motion to strike Count One of Ferrandino's cross claim and denies the motion to strike Counts Three and Four of Ferrandino's cross claim.
Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 768, 613 A.2d 1320 (1992).
shall be by writ, summons and complaint, served in the manner provided by law." (Emphasis added.) There appears to be no indication either by statute or case law that an application for arbitration can be made by way of cross claim. The statute is clear in requiring the form of an application for arbitration, which Ferrandino did not follow in the present case. The court, however, is limited to the arguments that NVLM presents in its motion to strike and, therefore, does not take this possible insufficiency into consideration.