Opinion
No. X04 CV-07-5012240 S
June 18, 2010
MEMORANDUM OF DECISION
The court heard oral argument on May 4, 2010 concerning the motion for summary judgment (#382) filed by third-party defendant Guardian Home Improvement, LLC (Guardian) as to the Substitute Apportionment/Counter and Third-Party Complaint (#207) (third-party complaint) of DiGiorgi Roofing And Siding, Inc. (DiGiorgi). After considering the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons stated below, Guardian's motion is granted.
I Background
In the third-party complaint, DiGiorgi alleges that plaintiff James McQueeney served DiGiorgi with a complaint in July 2007. McQueeney alleges that on July 5, 2006 he suffered serious injuries, including fractures, while working as a roofer on a roof located in New Britain, Connecticut. McQueeney alleges that, at the time, he was employed by Guardian. He alleges that DiGiorgi was the general contractor for the work and "involved" Guardian in the roofing work. See amended complaint, Count I, ¶ 3 (#271). McQueeney alleges that DiGiorgi was responsible for directing all of Guardian's work activities at the jobsite. See amended complaint, Count I, ¶¶ 1-4, 19. McQueeney also claims that DiGiorgi was negligent in its selection of Guardian as a subcontractor which was utilized for framing and other functions. See amended complaint, Count II.
In the two-count third-party complaint, DiGiorgi alleges that Guardian had a contractual relationship with DiGiorgi to perform work at the jobsite, had exclusive responsibility and control of the jobsite, and had sole authority to direct and supervise McQueeney. DiGiorgi also alleges that McQueeney's allegations arise solely from Guardian's conduct, which would have given rise to notice to Guardian that any injuries and losses to McQueeney would occur with substantial certainty, but that Guardian failed to desist in such conduct when a reasonable employer would have done so. See third-party complaint, first count, ¶ 6.
In the second count, DiGiorgi alleges that, pursuant to the contractual obligations between Guardian and DiGiorgi, Guardian was to furnish labor, equipment and expertise, and was to perform its work "in a reasonable and workmanlike manner." See third-party complaint, second count, ¶ 6. DiGiorgi also alleges that Guardian was contractually obligated to indemnify DiGiorgi and hold it harmless against all claims arising out of Guardian's work, if caused in whole or in part by Guardian's negligence and carelessness. See third-party complaint, second count, ¶ 7.
In addition, DiGirogi alleges that the contract required Guardian to obtain and provide to DiGiorgi, and ensure that DiGiorgi was a named additional insured on Guardian's commercial general liability policy as well as on a workers' compensation policy, to cover DiGiorgi for personal injuries arising out of DiGiorgi's business operations and/or involvement in work at the jobsite. See third-party complaint, second count, ¶ 8. DiGiorgi alleges that any injuries or losses suffered by McQueeney were caused in whole or in part by Guardian's negligence and/or carelessness, that Guardian had exclusive control over the jobsite, and that if DiGiorgi is found liable to McQueeney, said liability arises directly from Guardian's active negligence and/or carelessness.
DiGiorgi seeks apportionment pursuant to General Statutes §§ 52-572h and/or 52-102(b) (first count) and money damages and indemnification for any judgment that may rendered against it in favor of McQueeney (second count).
In its motion for summary judgment, Guardian contends that: it has no obligation to indemnify DiGiorgi, either by contract or under the common law; there is no evidence that it agreed to name DiGiorgi as an additional insured; any claim for apportionment is barred by the exclusivity provisions of the Workers' Compensation Act and the express terms of the apportionment statute; and General Statutes § 52-572k bars any claims for indemnity against Guardian for DiGiorgi's negligence. In opposition, DiGiorgi argues that there are genuine issues of material fact which preclude summary judgment and necessitate presenting the issues to the trier of fact.
II Standard Of Review
"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." (Internal quotation marks omitted.) Southwick At Milford Condominium Association, Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
The court addresses the issues below in the order in which they are presented in Guardian's motion.
III Discussion A Indemnification and Additional Insured
"[General Statutes § ]31-284 provides that an employer that complies with the requirements of the workers' compensation laws shall not be liable for any action for damages on account of personal injuries sustained by an employee arising out of and in the course of employment . . . Under the Workers' Compensation Act, both the employer and the employee have relinquished certain rights to obtain other advantages. The employee no longer has to prove negligence on the part of the employer, but, in return, he has to accept a limited, although certain, recovery . . . The employer, in turn, guarantees compensation to an injured employee in return for the exclusivity of the workers' compensation liability to its employees." (Footnote omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450-51, 820 A.2d 258 (2003).
General Statutes § 31-284(a) provides: "An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation."
"When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification . . . ] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or 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 an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation indemnify a bailor, or a contractor's obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a primary wrongdoer impliedly promises to indemnify a secondary wrongdoer, the great majority of jurisdictions disallow this claim." (Footnote omitted; internal quotation marks omitted.) Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989).
"The existence of a legal duty is a question of law . . ." Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008). Guardian contends that no independent duty existed between Guardian and DiGiorgi and that there is no evidence that Guardian expressly or impliedly agreed to indemnify DiGiorgi. In addition, it asserts that it had no contractual obligation to ensure that DiGiorgi was named as an additional insured. DiGiorgi argues that its rights to indemnity and to be named as an additional insured sprang from the contractual relationship that existed between Guardian and DiGiorgi.
No written contract has been provided. In support of its motion, Guardian presented the affidavit of Lawrence A. Fortin, Jr., its managing member at the time of the events at issue. He avers that there was no written agreement between Guardian and DiGiorgi. He also states that there was never any discussion at all regarding indemnification for any claims brought by Guardian employees. In addition, he avers that Guardian never promised to perform work with due care, in a workmanlike manner, in compliance with OSHA regulations, or in a safe manner. See Fortin affidavit, ¶ 6. He also avers that, at no time prior to the accident involving McQueeney in July 2006 did DiGiorgi request that DiGiorgi be named as an additional insured on Guardian's general liability insurance policy. See Fortin affidavit, ¶ 8.
In opposition to the motion, DiGiorgi presented the affidavit of its president, David DiGiorgi. In paragraph 6a, he avers that Guardian began its contractual relationship with DiGiorgi in 2005. Without reference to evidentiary support, he then states, "[s]ubcontractors, including Guardian, were contractually required by DiGiorgi to obtain and maintain commercial general liability in the amount of $1,000,000.00 and workers' compensation insurance in the statutory required amounts; to name DiGiorgi as an additional insured on those policies; and, to defend, indemnify and hold harmless DiGiorgi from any negligence attributable in whole or in part, to said subcontractor's negligence or improper performance of its labor[.]" See David DiGiorgi affidavit, ¶ 7. In paragraph 8, David DiGiorgi states that "DiGiorgi did contractually require subcontractors, including Guardian, to perform their work on DiGiorgi procured roofing projects in a safe manner and with due care[.]"
These conclusory statements about DiGiorgi's general practices in dealing with subcontractors, "including Guardian," are insufficient. "Mere statements of legal conclusions . . . and bald assertions,-without more, [generally] are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." Hopkins v. O'Connor, 282 Conn. 821, 847 n. 11, 925 A.2d 1030 (2007). Such general averments in an affidavit about contractual requirements do not. amount to evidence of a contractual agreement. "Merely alluding to disputed material facts . . . without providing substantiation, does not sufficiently establish those facts to preclude summary judgment." Gupta v. New Britain General Hospital, 239 Conn. 574, 582, 687 A.2d 111 (1996). In Gupta, the "plaintiff's conclusory statements, in the affidavit and elsewhere, that he and the hospital had entered into an `employment contract' [did] not constitute evidence sufficient to establish the existence of disputed material facts." Id., 583.
In addition, David DiGiorgi's deposition testimony shows that, contrary to paragraph 2 of his affidavit, in which he states that his affidavit is based on personal knowledge, he lacks personal knowledge about the contractual relationship between Guardian and DiGiorgi. He testified that he was not involved in entering into an agreement with Guardian; rather, Joe Tierinni, a DiGiorgi employee, entered into a "verbal" agreement with Guardian on DiGiorgi's behalf. See David DiGiorgi deposition, p. 157. David DiGiorgi stated that he did not remember doing that, "[s]o I'll say Joe." See David DiGiorgi deposition, p. 158. However, he also testified that he did not know whether Tierinni told Guardian that DiGiorgi required Guardian to name DiGiorgi as an additional insured on Guardian's insurance policy. See David DiGiorgi deposition, pp. 153, 158. In addition, he stated that it was only an "assumption" on his part that Guardian agreed to name DiGiorgi as an additional insured. See David DiGiorgi deposition, p. 158. He made a similar assumption about other DiGiorgi requirements concerning subcontractors. See David DiGiorgi deposition, pp. 144-45.
In view of his acknowledged lack of personal knowledge, David DiGiorgi's summary, in his deposition, of the contract terms which existed between Guardian and DiGiorgi, must be disregarded for this reason as well. See David DiGiorgi deposition, p. 121. Even if this summary could be considered, it does not include that Guardian undertook contractual obligations to indemnify DiGiorgi, or to have DiGiorgi named as an additional insured; or agreed to perform its work with due care. See Ferryman v. Groton, supra, 212 Conn. 144-45.
In its memorandum in opposition, pages 11-12, DiGiorgi notes that Guardian submitted the transcripts of DiGiorgi's and Tierinni's depositions, but only selectively cites to portions thereof. DiGiorgi then argues that these "transcripts contain much testimony supporting the existence of a contractual relationship between DiGiorgi and Guardian requiring indemnification and the naming of DiGiorgi as an additional insured." See DiGiorgi memorandum in opposition, p. 12. DiGiorgi provides no citations thereto.
Similarly unavailing are the two certificates of liability insurance presented with David DiGiorgi's affidavit. The first, dated in April 2006, before McQueeney's accident, simply lists DiGiorgi as a certificate holder. The second, which states that DiGiorgi is listed as an additional insured on Guardian's coverage, and is dated January 19, 2007, after the alleged accident of July 5, 2006, is immaterial to show either a duty to indemnify or that an agreement to name DiGiorgi as an additional insured existed prior thereto.
Also, the fact that, in his deposition, Fortin, Guardian's managing member, stated that there were written contracts does not establish their terms. As discussed above, David DiGiorgi stated that the agreement was "verbal," meaning oral, not written. In his deposition, Tierinni testified that he was responsible for hiring subcontractors, with David DiGiorgi's approval. See Tierinni deposition, p. 31. Tierinni testified that he could not recall if he ever saw a written agreement between DiGiorgi and a subcontractor; he also could not recall David DiGiorgi telling him that subcontractors working for DiGiorgi needed to enter into written agreements. See Tierinni deposition, pp. 32-33. Also, as noted above, neither party has presented a written contract.
Likewise, the fact that Guardian no longer possesses records of its dealings with DiGiorgi does not prove contract terms. Similarly, that Guardian stated in an interrogatory response that it did not recall whether DiGiorgi requested to be added as an additional insured before or after McQueeney's accident is not evidence of a contractual obligation. See Guardian's supplemental answers to interrogatories, dated June 3, 2009, Interrogatory No. 2. While this response was contradicted in Fortin's affidavit, paragraph 8, wherein he stated that at no point prior to the accident did DiGiorgi make such a request, a material issue of fact is not created thereby since there is no evidence of a contractual agreement on this subject.
"Under well established contract law, a contract must be definite and certain as to its terms and requirements . . . In addition, there must be a manifestation of mutual assent to those terms and requirements . . . It is well settled that the existence of a contract is a question of fact." (Citations omitted.) Bender v. Bender, 292 Conn. 696, 728, 975 A.2d 636 (2009).
"Where the party seeking indemnification has only hired an independent contractor and the contract contains no express indemnification language, no special relationship exists between that party and the independent contractor that would obviate the operation of the exclusive remedy doctrine." LaVoie v. Marriott International, Inc., Superior Court, judicial District of Hartford at Hartford, Docket No. CV 01 0808756 (May 13, 2004, Wagner, J.T.R.). That DiGiorgi and Guardian had some form of agreement as to Guardian's work at the job site is insufficient to give rise to an independent duty by Guardian to indemnify DiGiorgi. See Krisjansson v. Pietrewicz, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0279552 (April 7, 2005, Tanzer, J.) (indemnification claim inadequate if not based on entirely independent and separate duty, citing Ferryman v. Groton, supra, 212 Conn. 144).
Similarly, where a claimant relies on the theory that a contractor had an obligation to perform his work with due care, "[t]he independent duty allowing such a result is created by the explicit agreement not merely to perform the contract in a workmanlike manner per contract specs but also to use due care with attention to safety considerations." Rivera v. City of Meriden, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 04 4000526 (March 23, 2006, Corradino, J.) ( 41 Conn.L.Rptr. 98).
DiGiorgi also argues that there was an implied agreement to indemnify based on past custom and practices of the parties. "A contract implied in fact, like an express contract, depends on actual agreement." (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111, 544 A.2d 170 (1988). "[C]ontracts are not created by evidence of customs and usage." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 843, 888 A.2d 104 (2006) (allegation of implied contract; plaintiff had burden to establish that adherence to policies and procedures was result of contractual commitment by defendant).
In Fifield v. South Hill Limited Partnership, 20 F.Sup.2d 366, 370-71 (D.Conn. 1998), cited by DiGiorgi, the evidence of an implied agreement to indemnify included unsigned, clearly worded agreements with indemnification clauses. Here, there is no such evidence. "A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties." (Internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 730, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). There is no evidence of an implied agreement to indemnify.
Here, as discussed above, Guardian has presented evidence showing that it did not agree to indemnify DiGiorgi, and that it did not promise to perform work with due care. In addition, it claims that there is no evidence of a contractual obligation to have DiGiorgi named as an additional insured. In response, DiGiorgi has not presented evidence that demonstrates the existence of a material, disputed factual issue as to these contentions. See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. It has not presented evidence showing that Guardian and DiGiorgi entered into a contract which included such terms as part of their agreement. Thus, there is no material factual dispute as to whether Guardian breached an independent duty to DiGiorgi. DiGiorgi has presented no evidentiary basis on which a factfinder could find that there was an agreement to indemnify DiGiorgi, or for finding an implied promise of indemnity, or an obligation to perform work with due care. See Ferryman v. Groton, supra, 212 Conn. 144-45. Likewise, there is no evidence showing that the parties agreed, prior to McQueeney's accident, that Guardian was obligated to have DiGiorgi named as an additional insured.
Since there is no material factual dispute, Guardian has shown, as a matter of law, that it has no obligation to indemnify DiGiorgi and that there is no evidence showing that it agreed to have DiGiorgi named as an additional insured prior to McQueeney's accident. Accordingly, judgment may enter for Guardian as to the second count.
In its memorandum in opposition, page 13, DiGiorgi confirms that it makes no claim that Guardian is obligated to indemnify DiGiorgi for DiGiorgi's own negligence. Accordingly, the court need not consider Guardian's argument concerning the applicability of General Statutes § 52-572k.
B Apportionment
As discussed above, in the first count, DiGiorgi alleges that, in view of Guardian's conduct, McQueeney's injuries and losses were substantially certain to occur. DiGiorgi seeks apportionment against Guardian, McQueeney's employer, and relies on General Statutes §§ 52-572h and/or 52-102(b). Guardian contends that DiGiorgi is not entitled to apportionment from Guardian.
Section 52-572h(c) provides "[i]n a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, 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 except as provided in subsection (g) of this section."
"Section 31-284(a) is the exclusivity provision of the [workers' compensation] act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury . . . An exception to this general rule of exclusivity exists when a plaintiff can establish an intentional tort claim by demonstrating that his employer either: (1) actually intended to injure [the employee] (actual intent standard); or (2) intentionally created a dangerous condition that made [the employee's] injuries substantially certain to occur (substantial certainty standard)." (Citation omitted; emphasis in original; internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006), citing Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997) ( Suarez II).
DiGiorgi is attempting to step into the plaintiff's shoes and bring an intentional tort claim against Guardian for apportionment. As stated above, DiGiorgi alleges that Guardian's conduct "would have given rise to notice to Guardian that the injuries and losses (if any) to McQueeney would occur with substantial certainty . . ." See third party complaint, first count, ¶ 6.
As a matter of law, this claim is barred, since it is not among the exceptions to workers' compensation exclusivity discussed in Ferryman v. Groton, supra, 212 Conn. 144-45, as to claims for contribution by third parties, such as DiGiorgi, against a plaintiff's employer. The Supreme Court recently has reiterated its adherence to the principles enunciated in Ferryman. See Barry v. Quality Steel Products, Inc., supra, 263 Conn. 451, which was decided after Suarez II. As the Supreme Court explained in Durniak v. August Winter Sons, Inc., 222 Conn. 775, 781, 610 A.2d 1277 (1992), "[w]e have repeatedly observed that our [workers' compensation] act represents a complex and comprehensive statutory scheme balancing the rights and claims of the employer and the employee arising out of work-related personal injuries. Because of the comprehensive nature of the act, the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts . . . The legislature manifestly has the competence to enact statutes relating workers' compensation to tort reform. See, e.g., General Statutes 52-572r(c). Absent such express legislative intervention, we have held that we should not assume that the legislature intended to create an exception for aggravated torts . . .; or for uninsured motorist benefits . . . It is similarly inappropriate, in this case, for us to undermine the tradeoffs that underlie workers' compensation by importing contributory or comparative negligence into the no-fault workers' compensation reimbursement program." (Citations omitted.)
Since, under the circumstances here, Guardian, the employer, may not have its liability apportioned with DiGiorgi's liability, pursuant to § 52-572h, the provisions of General Statutes § 52-102b also are not applicable. Section 52-102b(c) provides, "[n]o person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h."
CONCLUSION
Based on the foregoing reasons, Guardian has shown that the material facts are not disputed and that it is entitled to judgment as a matter of law. Guardian's motion for summary judgment is granted. Judgment may enter for Guardian and against DiGiorgi on DiGiorgi's third-party complaint. It is so ordered.