Opinion
No. CV 085018535
July 9, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #126
The third-party defendant, Unemployment Tax Management Corporation (UTMC) filed a Motion to Strike the claims made against it in the third-party complaint by defendant/third party plaintiff, Kaiser Whitney Staffing, Inc. (Kaiser). It moves to strike the claims in the third-party complaint, arguing that the third-party plaintiff has failed to allege facts which entitle it to indemnification; the third-party plaintiff has failed to establish a legal basis for its claim for contribution; and the third party plaintiff is not entitled to compensatory damages under § 52-102a and Practice Book § 10-11. UTMC also requests that this court grant it attorneys fees and cost, which it incurred in defending the third-party complaint. Kaiser filed a motion in opposition on October 14, 2009, to which UTMC replied on February 4, 2010. This court heard oral argument on March 15, 2010. For reasons more fully set forth herein, the court denies the Motion to Strike and the request for attorneys fees and costs.
This case arises out of an employment relationship which began between the plaintiff, Robert Vitello, and the defendant, Kaiser. According to a Three Count Complaint filed on behalf of Vitello, the plaintiff was employed by the defendant from March 9, 2009 through October 19, 2009. The plaintiff further alleges that at the time of his hiring, he informed the defendant of his criminal record and the defendant hired him with full knowledge of this fact. On October 19, 2009, the defendant terminated the plaintiff from his employment on the basis of his criminal record. Thereafter, the plaintiff claims that the defendant falsely represented to the Employment Security Appeals Division of the Connecticut Department of Labor that it had been unaware of the plaintiff's criminal record in an attempt to avoid paying the plaintiff unemployment benefits. The defendant was represented in the hearing by a representative of UTMC. The unemployment hearing officer apparently agreed that the defendant falsely represented that it was unaware of the plaintiff's criminal record. The defendant then, allegedly, promised the plaintiff employment and asked him not to seek other job opportunities. After his re-hiring, the plaintiff claims that he was terminated a second time, this time for being on parole. The plaintiff claims that he sustained damages as a result of the misconduct of the defendant. The plaintiff also has a separate independent count against UTMC arising out of its conduct during the unemployment hearing.
On June 12, 2009, the defendant filed a third-party complaint against the third-party defendants alleging that any misrepresentations in the Unemployment Hearing were made by representatives of UTMC, which it had hired to represent it in the hearing. Therefore, Kaiser claims that any damages sustained by the plaintiff were caused by the active negligence of UTMC. UTMC argues that this third-party complaint is legally insufficient and should be stricken.
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted, or . . . the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not legally be awarded. Paula B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
UTMC argues that the third-party complaint fails because it contains insufficient facts to establish that Kaiser is legally entitled to indemnification. Additionally, UTMC claims that the third-party claim for contribution must be stricken. UTMC also claims that any claim for compensatory damages and costs are improper under the General Statutes and under the Practice Book. Finally, UTMC request attorneys fees and cost for the preparation of the case and the prosecution of the motion.
I.
UTMC's first argument is that the indemnification claim is insufficient because Kaiser failed to present a contract or contractual language. UTMC further argues that the third-party plaintiff has not pleaded facts to establish that the alleged negligence of UTMC was the primary cause of the injuries allegedly suffered by Vitello or that UTMC "could in any way be held liable for damages related to Vitello's termination." UTMC claims that it made no misrepresentations at Vitello's unemployment hearing and that Vitello did not suffer damages as a result of UTMC's conduct. In its reply brief, UTMC contends that Kaiser failed to allege that UTMC owed it a duty, and therefore failed to state a claim for indemnification. In response, Kaiser counters that it has alleged facts sufficient to support a common-law indemnification claim. Specifically, it argues that it has been damaged as a result of UTMC's negligence and that it has set forth facts sufficient to support this claim.
UTMC's arguments seem centered around the notion that the third-party plaintiff seeks indemnification from it for all of Vitello's claims against it. In fact, the allegations in the third-party complaint that pertain to UTMC are limited to Vitello's claim that the third-party defendant made misrepresentations during his unemployment compensation hearing and he has suffered damages as a result.
A.
UTMC's first argument, that the indemnification claim is legally insufficient, is without merit. Claims for indemnification may be grounded in contract or in tort. See Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965). The third-party complaint contains no reference to a contractual right to indemnification. It is clear from the face of the third-party complaint that Kaiser seeks indemnification from UTMC based upon a theory of negligence. Consequently, it was not necessary for Kaiser to present a contract or contract terms to support its common-law indemnification claim.
B.
Regarding UTMC's second argument, that the third-party claim is insufficient to allege a claim for indemnification based on tortious conduct, the law governing indemnification for torts in is well settled. "[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . Ordinarily there is no right of indemnity . . . between joint tortfeasors." (Citation omitted; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42, 732 A.2d 767 (1999). There is, however, 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 . . . To assert a claim for indemnification . . . an out-of-pocket defendant must show that: (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 . . .; (3) the other party was in control of the situation to 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." (Citations omitted.) Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).
Kaiser's third-party complaint satisfies each required element. It asserts that UTMC negligently failed to prepare for unemployment compensation hearing; and that it failed to adequately represent Kaiser at the hearing. Kaiser also alleges that the active and primary responsibility to prepare and present evidence during the hearing fell upon UTMC; and that Kaiser's involvement was passive. Implicit in the allegations in the third-party complaint, are the third and fourth elements. Kaiser's allegations imply that, in representing it at Vitello's unemployment compensation hearing, UTMC was in exclusive control. Also implicit in these allegations is that Kaiser should have been able to rely upon an expectation of reasonable representation; and that Kaiser was not put on notice of any misconduct before it occurred.
UTMC's arguments that it did not make misrepresentations at Vitello's hearing and that Vitello did not suffer damages as a result of UTMC's conduct are irrelevant to the motion to strike. "[F]or the purposes of a motion to strike the third-party complaint on the ground that the third-party defendants cannot, as a matter of law, be liable to the defendant for the claims by the plaintiff, it is necessary to assume that the jury found that the plaintiff established the elements of the cause or causes of action in the first-party complaint against the defendant." New Haven Terminal v. Hungerfords, Inc., Superior Court, judicial district of New Haven, Docket No. 05 6000015 (August 8, 2007, Cosgrove, J.) ( 44 Conn. L. Rptr. 258, 263). Thus, this court must assume that misrepresentations were made at the hearing and that the plaintiff suffered damages as a result of them. Accordingly, for the reasons articulated above, the motion to strike the indemnification claim is denied.
II.
UTMC also argues that its motion to strike the contribution claim should be granted because Kaiser has not alleged facts to establish that Vitello has a claim against UTMC directly. It also claims that Vitello did not suffer any damages as a result of UTMC's conduct during the hearing because he was, in fact, awarded unemployment compensation benefits. Kaiser maintains that it has alleged sufficient facts to support its claim for contribution.
"Contribution is a payment made by each, or by any, of several having a common interest or liability of his share in the loss suffered . . . The contribution defendant must be a tortfeasor, and originally liable to the plaintiff. If there was never any such liability . . . then there is no liability for contribution." (Internal citations omitted; internal quotation marks omitted.) Crotta v. Hope Depot, Inc., supra, 249 Conn. 639-40. The facts in Crotta v. Home Depot, Inc., are inapposite to the instant matter because the issue before the court in Crotta was whether a defendant/third-party plaintiff could make a contribution claim against the parent of a minor child based on a theory of negligent supervision. The Supreme Court held in Crotta that the doctrine of parental immunity barred the parent from being held liable to the minor child, and, as a result, there was "no basis upon which to assert a common-law contribution claim." Id., 640-41. However, the legal principle articulated in the decision governs this case.
Kaiser alleges that an agent or employee of UTMC represented it at the hearing and that if misrepresentations were made at such hearing, they were made by an agent or employee of UTMC. These allegations support the claim that UTMC is originally liable to Vitello for the alleged misrepresentations. Moreover, there is no legal doctrine to bar UTMC from being held liable to Vitello. Accordingly, this court finds that Kaiser has pleaded facts sufficient to allege that UTMC is directly liable to Vitello for injuries related to the hearing. Additionally, UTMC's challenge to the sufficiency of Vitello's direct legal claim against UTMC is misplaced. This issue was already decided by this court (Keegan, J.) on September 22, 2009, when it denied UTMC's motion to strike the count against it in Vitello's complaint.
III.
Finally, UTMC seeks to strike Kaiser's claims for compensatory damages, costs, expenses and attorneys fees. It argues that these claims are improper pursuant to § 52-102a and Practice Book § 10-11.
Section 52-102a(a) provides in relevant part: "[a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Practice Book § 10-11(a) provides in relevant part: "[a] defendant in any civil action may move the court for permission as a third party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff's claim against him or her."
While it is true that nothing in § 52-102a nor Practice Book § 10-11 authorizes the awarding of attorneys fees and costs, this fact does not resolve the issues presented by the motion to strike. "The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception . . . Connecticut adheres to the American rule . . . There are few exceptions. For example . . . an indemnitee is entitled to recover from an indemnitor, as part of its damages, attorneys fees, costs and expenses." (Internal quotation marks omitted. Emphasis added.) Centimark v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 539, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). Consequently, Kaiser is legally permitted to seek attorneys fees, costs and expenses, and the motion to strike these is denied.
Regarding the claim for compensatory damages, UTMC argues that this is really an independent claim for negligence, and as such does more than merely attempt to pass liability onto it. Kaiser argues that the claim for compensatory damages is not an independent claim from the underlying one, and therefore is proper. The court agrees with Kaiser.
It is true that in its prayer for relief, the third-party plaintiff makes a claim for compensatory damages "as a result of the negligence" of UTMC. It is also true that Vitello makes no such negligence claim in his complaint. Nonetheless, this court finds that Kaiser's claim, though denoted differently, arises out of the same transaction alleged in Vitello's complaint. This court agrees with the reasoning applied in the line of trial court decisions which deny motions to strike third-party complaints even when they allege purportedly independent claims because one of the purposes of § 52-102a is to obviate the need for multiple actions arising from the same transaction. See, Cambridge Mutual Fire Ins. Co. v. Michaud, Superior Court, judicial district of Hartford, Docket No. CV 07 4032988 (August 9, 2008, Wagner, J.) [ 46 Conn. L. Rptr. 96] ("[s]ince the third-party complaint entails similar and related issues . . . the motion to strike is denied"); Chen v. Celon, Superior Court, judicial district of Fairfield, Docket No. CV 02 0391304 (March 30, 2006, Rodriguez, J.) ( 41 Conn. L. Rptr. 105, 107) (granting motion to strike on other grounds, but stating that independent "allegation in the present case arises from the same set of events as the original complaint, and accordingly, may be maintained in the third-party complaint pursuant to § 52-102a); Wise v. Bickford, Superior Court, judicial district of Hartford, Docket No. CV 97 571001 (September 17, 1997, Teller, J.) [ 20 Conn. L. Rptr. 218] (denying motion to strike third-party plaintiffs independent negligence claim reasoning that third-party complaint is to be treated as ordinary civil action complaint); Middlesex Mutual Assurance Co. v. Black, 40 Conn.Sup. 63, 66, 480 A.2d 614 (1984) (denying motion to strike where "third party defendant . . . has been properly impleaded, and where all claims made by . . . the third party plaintiff, arise out of the same transaction complained of in the original complaint, the third party complaint may include claims for damages in excess of those sought in the original complaint.").
IV.
Given that this court has denied the motion to strike the third-party complaint, there is no need to address UTMC's request for an award of attorneys fees and costs incurred in preparing it. There is neither any legal authority for the granting of such a request, nor is there a basis upon which to even consider it because the movant is not the prevailing party.