Opinion
No. CV 09 5005961S
September 15, 2011
MEMORANDUM OF DECISION
The defendant, Structure Works, Inc., has filed this motion for summary judgment (#127) on its counterclaim against the intervening plaintiff, Elite Electrical Contractors, Inc., on the ground that there is no genuine issue of material fact that Elite is required to provide a defense and indemnify Structure Works, and that Elite is in breach of contract for failure to obtain insurance for the benefit of Structure Works. For the reasons given below, the motion for summary judgment must be denied.
I FACTS
The underlying action is one for personal injuries arising from an alleged fall from a single interior wooden step located on an active home renovation construction site on October 16, 2007. The plaintiff, Jason Twigg, was employed by Elite Electrical Contractors, Inc. (Elite), a subcontractor of Structure Works, Inc. (Structure Works). The plaintiff brought a negligence suit against Structure Works alleging that, at the time of his injury, he was carrying a spool of electrical cable to another room when the step he was on gave way as he stepped off it pulling loose from the wall from which it was attached. On July 30, 2009, Elite filed a motion to intervene to recover workers' compensation benefits paid to the plaintiff. Structure Works answered the plaintiff's complaint and Elite's intervening complaint, raising to each a special defense asserting that the plaintiff was comparatively negligent. The plaintiff replied with a denial of the special defense.
On April 29, 2011, Structure Works filed a revised counterclaim against Elite. Count one alleges that Elite is obligated to defend and indemnify Structure Works pursuant to the terms of the subcontract between Elite and Structure Works. Count two alleges that Elite breached the subcontract in that it failed to obtain insurance for the benefit of Structure Works, which would have covered the claims being alleged by the plaintiff.
On June 24, 2011, Structure Works filed the present motion for summary judgment on its counterclaim against Elite, along with a supporting memorandum of law and evidentiary support. On August 23, 2011, Elite filed an objection to the motion for summary judgment along with a supporting memorandum of law and evidentiary support. Structure Works filed a reply memorandum on September 2, 2011.
The matter was heard at the September 6, 2011 short calendar. Additional facts will be presented as necessary.
II DISCUSSION A Summary Judgment Standard
"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. 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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[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).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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, 10-11, 938 A.2d 576 (2008).
B Analysis
Structure Works moves for summary judgment on the first count of its counterclaim on the ground that there is no genuine issue of material fact that the plaintiff's accident arose out of his work for Elite and was caused by the plaintiff's own negligence, thus triggering the contractual indemnification provision in the subcontract. Structure Works also contends that it is entitled to summary judgment on its second count because there is no genuine issue of material fact that Elite breached the subcontract by failing to obtain insurance for the benefit of Structure Works.
I Count One: Contractual Indemnification
The subcontract provides: "To the fullest extent permitted by law, subcontractor [Elite] shall indemnify and hold harmless Structure Works, Inc. and Owner against claims, damages, losses and expenses, including legal fees, arising out of or resulting from performance of subcontracted work to the extent caused in whole or in part by the subcontractor or anyone directly or indirectly employed by the Subcontractor."
Structure Works contends that it is entitled to summary judgment because the plaintiff's claim arises out of Elite's work, in that the plaintiff was an employee of Elite and he was performing his duties in connection with his employment with Elite. Specifically, on the day of the plaintiff's accident, the plaintiff was asked by his boss at Elite to bring his tools and wire down to the living room to perform some electrical work. While carrying his tools and the wire, the plaintiff stepped down onto a single stair into the living room when the stair moved, causing him to fall.
Structure Works further contends that it is entitled to summary judgment because the plaintiff's injuries were caused in whole or in part by his own negligence. According to Structure Works, the plaintiff knew that there was a problem with the single step descending into the living room but, nevertheless, used the step in the precise way that would cause it to pull away from the wall.
Elite objects arguing that there are genuine issues of material fact over whether the plaintiff's injury arose out of his work for Elite and whether the plaintiff was negligent. According to Elite, at the time of the plaintiff's accident, Structure Works controlled and/or maintained the instrument or mechanism of the plaintiff's injury, i.e., the step. Elite had nothing to do with the removal of the step, the ripping of the flooring beneath the step and/or the replacement of the step; all of these tasks were performed by Structure Works. Moreover, Elite contends that there has been no finding by a trier of fact as to what caused the plaintiff to fall. According to Elite, the plaintiff's complaint alleges that the fall was caused by the negligence of Structure Works. Elite contends that McNeff v. Vinco, Inc., 59 Conn.App. 698, 757 A.2d 685 (2000), is controlling and bars summary judgment for Structure Works because Elite cannot be obligated to indemnify Structure Works for claims arising out of Structure Works' own negligence.
Elite also argues that the indemnification provision contained in the subcontract is not directed at Elite because Elite is delineated in the subcontract as the "supplier" and the provision at issue is directed at "subcontractor." Structure Works contends that the terms "supplier" and "subcontractor" are used interchangeably within the subcontract.
In response, Structure Works argues that its claim for indemnity is based on the comparative negligence of the plaintiff, not its own work. Furthermore, Structure Works contends that McNeff is not controlling because that case is distinguishable from the present case.
The exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284(a), provides in relevant part: "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 . . ."
"The Supreme Court has recognized an exception to the exclusivity provision of the workers' compensation act when an independent relationship exists between the defendant third party and the employer. In Ferryman v. Groton, 212 Conn. 138, 561 A.2d 432 (1989), the defendant filed a third-party complaint after it was sued in a negligence action by the plaintiff employee. In the third-party complaint, the defendant sought indemnification from the third-party defendant-employer. The trial court granted the third-party defendant's motion to strike, however the Supreme Court reversed the trial court's ruling and held that ordinarily the exclusivity provisions of the workers' compensation statute would insulate the employer from any further liability, but the court found that an independent duty existed between the defendant and the third-party defendant employer, therefore the right of indemnification springs from their separate contractual relationship." Kimerle v. Freelife International Operating Corp., Superior Court, judicial district New Haven, Docket No. CV 04 04152 (September 22, 1998, Moran, J.).
In the present case, under the subcontract, Elite has an independent duty to indemnify Structure Works if two conditions are met: the claims and damages must arise out of or result from the performance of Elite's work and be caused in whole or in part by Elite or anyone directly or indirectly employed by Elite. Structure Works has not met its burden of showing that there are no genuine issues of material fact that the plaintiff's injury arose out of or resulted from his work for Elite or that the plaintiff was negligent.
The present case is similar to McNeff v. Vinco, Inc., supra, 59 Conn.App. 698, which involved an injured employee of a subcontractor who brought an action against a general contractor, which then filed a counterclaim for indemnity against the injured party's employer, who intervened for reimbursement of workers' compensation benefits. In McNeff "[t]he accident occurred as McNeff exited a mechanical platform located at the project. Hilton [the mechanical subcontractor and McNeff's employer] had installed some equipment on the platform, which McNeff was working on prior to the accident, but Hilton did not design or construct the platform itself, nor did it construct walls on the platform." Id., 699. "Prior to the accident, McNeff complained orally to Hilton that the working conditions on the platform were unsafe, and Hilton agreed that the ingress to and egress from the platform were dangerous." Id., 700. Vinco, Inc. (Vinco), the general contractor, sought indemnification from Hilton based on a contractual indemnification provision contained in the subcontract. Id., 703. The indemnification clause provided in relevant part: "[Hilton] shall indemnify . . . [Vinco] from and against all claims . . . arising out of or resulting from the performance of [Hilton's] work . . . to the extent caused in whole or in part by any negligent act or omission of [Hilton]. . ." (Internal quotation marks omitted.) Id.
In McNeff v. Vinco, Inc., supra, 59 Conn.App. 698, the plaintiff brought suit against the general contractor, architect and construction manager. Vinco, Inc. (Vinco) was the general contractor; Vinco, Ames and Whitaker, P.C. (Ames) was the architect; and Turner Construction was the construction manager. Id., 699-700. The plaintiff's employer, Hilton, filed an intervening complaint, seeking to recover workers' compensation benefits. Id., 700. "Vinco filed a third party complaint against Hilton claiming that Hilton did not properly supervise the work done and the equipment used by its employees and that, under its subcontract, Hilton was responsible for indemnifying Vinco." Id. The trial court granted a directed verdict for Hilton on Vinco's claim for indemnification. Id. The Appellate Court upheld the trial court's ruling. Id., 702.
In sustaining the directed verdict in favor of Hilton and against Vinco, our Appellate Court noted: "Under the terms of the indemnification clause, Hilton would be liable only if there was a causal connection between the work that it had contracted to perform and the injury sustained. There is no language in this clause that could be interpreted as providing indemnification for any claim beyond one resulting from Hilton's work . . . Vinco did not offer any evidence establishing that McNeff's injuries result[ed] from the performance of [Hilton's] work." (Citation omitted; internal quotation marks omitted.) Id., 703. The court further explained that "the accident at issue occurred when McNeff fell as he was leaving the platform. Hilton neither designed nor constructed the platform or its ingress and egress. The only connection between Hilton and the platform was equipment it had placed on the platform and work it had performed while on the platform. No evidence was introduced establishing that Hilton's equipment or work contributed to the accident in any way." Id. The court also noted that "[t]he defects at issue . . . were not related to the performance of [Hilton's] work." (Internal quotation marks omitted.) Id., 704.
Like in McNeff under the terms of the indemnification clause in the present case, Elite would be liable only if there was a causal connection between the work that it had contracted to perform and the plaintiff's injury. The evidence submitted shows that there is a genuine issue of material fact concerning whether the plaintiff's injuries resulted from the performance of Elite's work. The evidence indicates that the plaintiff was carrying wire and tools to the living area when he stepped on the faulty step. Elite, however, had nothing to do with the removal of the step, the ripping of the flooring beneath the step and/or the replacement of the step. Rather, all of these tasks were performed by Structure Works. The only connection between Elite and the step was that the plaintiff used the step as ingress and egress into the living room to perform work. Unlike in McNeff however, Structure Works has presented evidence that Elite's equipment, i.e., the tools and the wire, may have contributed to the accident. Moreover, there are genuine issues concerning whether the plaintiff was negligent, a claim which the plaintiff denies. "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Accordingly, the motion for summary judgment as to count one is denied.
Structure Works submitted excerpts from the plaintiff's deposition in which the plaintiff testified that he thought the weight of the wire in front of him, weighing approximately fifty pounds, may have contributed to the flipping up of the step and his resulting injury.
2 Count Two: Insurance
The subcontract provides that Elite was to obtain insurance including workers' compensation insurance, employers' liability insurance, "occurrence" based commercial general liability insurance and comprehensive automobile liability insurance. Moreover, the subcontract required, inter alia, Elite to name Structure Works as an additional insured. Under the terms of the subcontract, Elite was not to commence work until the insurance was approved and accepted by Structure Works. On April 9, 2007, National Grange Mutual Insurance Company (NGM) issued Elite a certificate of liability insurance listing Structure Works as a certificate holder. Thereafter, Elite began work on the property.
The certificate lists the date (MM/DD/YYYY) as 04/07/09. Elite notes in its memorandum that the certificate was issued on or around April 9, 2007. Based on the date of the accident, October 16, 2007, and that fact that the parties do not dispute that the certificate of insurance was issued on or around April 9, 2007, the court finds that the date listed on the certificate was a typographical error and should correctly read 04/09/07.
On June 10, 2011, in response to an inquiry from Structure Works, NGM informed Structure Works, by letter, that NGM did not believe that Structure Works was an additional insured under the insurance policy and denied Structure Works' request that NGM assume the defense and agree to indemnify Structure Works. NGM noted that "[t]he terms of [the] endorsement have not been met because there is no certificate of insurance providing that Structure Works was an additional insured. Moreover, even if the plaintiff were to be considered an additional insured, the endorsement further provides that it would have been an additional insured only for its vicarious liability for Elite's acts or omissions arising from ongoing construction operations performed for Structure Works. The endorsement did not provide for additional insured status with respect to any liability due to Structure Works' own independent acts or for any actions involving its supervision of Elite's work or the work of any other person. The negligence allegations against Structure Works made by or on behalf of the plaintiff . . . in his underlying Complaint indicate that they are all negligence allegations which raise or allege independent acts of negligence on the part of Structure Works . . ."
Structure Works moves for summary judgment on the ground that, based on the above letter from NGM, there is no genuine issue of material fact that Elite breached the subcontract by failing to obtain insurance coverage for the benefit of Structure Works, which covers the claim being made by the plaintiff.
Elite objects arguing that summary judgment should be denied, first, because Structure Works is seeking an improper declaratory judgment as to the terms of the existing NGM policy and NGM is not a party to the action. Second, Elite argues that Structure Works is estopped from asserting that Elite breached the insurance provision of the subcontract because Structure Works permitted Elite to commence work. According to Elite, Structure Works, by having Elite begin its work, approved and accepted the insurance proffered by Elite. Therefore, it is now estopped from asserting that the insurance was inadequate.
Elite also argues that summary judgment is inappropriate because the terms of the subcontract are ambiguous, in that certain insurance related terms are not defined. Although Elite contends that the terms are susceptible to more than one interpretation, Elite fails to provide an alternative interpretation.
"The doctrine of equitable estoppel is well established. [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time." (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn.App. 800, 826, 3 A.3d 992 (2010). "Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct . . . In its general application, we have recognized that [t]here are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done . . . Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong." (Citation omitted; internal quotation marks omitted.) Liberty Bank v. New London Ltd. Partnership, Superior Court, judicial district of New London, Docket No. 4005236 (May 1, 2007, Devine, J.) ( 43 Conn. L. Rptr. 326, 328-29).
"Waiver is the intentional relinquishment or abandonment of a known right or privilege . . . [V]arious statutory and contract rights may be waived . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007).
In the present case, the evidence demonstrates that there is a genuine issue of material fact as to whether Structure Works waived its right to assert that Elite breached the contract by failing to obtain the required insurance. The fact that Structure Works permitted Elite to commence, and continue, the work it was subcontracted to perform after Elite proffered an insurance certificate is evidence of conduct that may have induced Elite to believe that the insurance it obtained was in compliance with the subcontract. Based on the terms of the subcontract which indicated that Elite would not commence work until the insurance was approved and accepted by Structure Works and on Structure Works' subsequent conduct permitting Elite to begin work, Elite may have reasonably been led to believe that, absent notice to the contrary, Structure Works was satisfied with the insurance proffered by Elite.
"Waiver is a question of fact." AFSCME, Council 4, Local 704 v. Dept. of Public Health, 272 Conn. 617, 622, 866 A.2d 582 (2005). Accordingly, the motion for summary judgment as to count two is denied.