Opinion
X10CV01606031521S
09-20-2017
Glen A. Canner, Executor v. Governor's Ridge Association, Inc. et al
UNPUBLISHED OPINION
RULING ON MOTION TO STRIKE CROSS CLAIM (#242)
LINDA K. LAGER, JUDGE.
On June 14, 2017, South Meadow Development, LLC, Anthony Lucera and Glenn Tatangelo (South Meadow or South Meadow parties) filed a cross complaint (#240) in two counts alleging common law indemnification against Adeeb Consulting, LLC and Kareem Adeeb (Adeeb or Adeeb parties). The South Meadow parties and the Adeeb parties were at that time co-defendants in the original action brought by Glen Canner as the executor of the estate of Charles A. Canner (original action). Briefly, the original action alleges that Charles Canner and his wife purchased a condominium unit from South Meadow (Canner unit), which was part of phase II of the Governor's Ridge common interest community located in Trumbull, Connecticut, and that the Canner unit has sustained damages because it was not built on piles and its foundation settled.
On the date the cross complaint was filed, the operative complaint in the original action was the fifth amended complaint filed on April 28, 2017 (#227) which remains operative to this date. On June 16, 2017, the plaintiff withdrew the complaint as to the Adeeb parties (#241).
On July 14, 2017 the Adeeeb parties moved to strike the cross complaint (#242) and the South Meadow parties filed an objection to that motion on August 10, 2017 (#247). The parties have consented to the court deciding the motion on the papers (#250). Familiarity with the law governing motions to strike is presumed. See e.g., Lawrence v. O and G Industries, Inc., 319 Conn. 641, 648-49, 126 A.3d 569 (2015). For the reasons stated below, the motion to strike is denied.
Common-law indemnification requires proof of four elements. Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416, 207 A.2d 732 (1965). One of the requisite elements is that the indemnitor must be " in control of the situation to the exclusion" of the indemnitee because " [c]ontrol is one of the essential elements of primary negligence . . ." Id. The Adeeb parties have moved to strike the cross complaint in its entirety solely on the ground that it fails to sufficiently allege the requisite element of exclusive control. Generally, the issue of exclusive control is a question of fact which should not be resolved on a motion to strike. Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 704, 694 A.2d 788 (1997). A motion to strike on this ground may be granted only in the rare circumstance where the court can determine that under the alleged factual circumstances it would be impossible for a reasonable juror to conclude that indemnitor was in exclusive control of the situation. Id., 706.
Whether the cross complaint adequately pleads exclusive control is determined in light of its allegations considered in the context of the allegations in the original complaint. See Gordon v. O'Neall Construction, LLC, Superior Court, judicial district of Stamford, Docket No. 07500336, (2009 WL 2230876 at *3) (May 27, 2009, Jennings, J.) and cases cited therein. When, as here, the Canner estate has not limited the allegations against the South Meadow parties to their negligence alone or to their exclusive control of the situation but rather has cast a wide net of blame that encompasses the Adeeb defendants and others, the court cannot decide as a matter of law whether a reasonable juror could find that Adeeb did not have exclusive control over the situation, as that term is defined by the caselaw. See Fifield v. South Hill Ltd. Partnership, 20 F.Supp.2d 366, 370 (D.Conn., 1998) (Denying motion for summary judgment because the underlying action did not allege that the indemnitee was primarily negligent or in exclusive control of the situation).
For the purpose of common law indemnification, exclusive control of the situation is defined as " exclusive control over the dangerous condition that gives rise" to the damages alleged in the underlying action. Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 706. In Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013), the court reiterated that " the meaning of the term 'the situation' as used in Kaplan and later cases to define the third essential element of active-passive negligence" is " the dangerous condition that allegedly exposed the [plaintiff in the original action] to harm . . ." In determining the sufficiency of allegations of exclusive control in the cross-complaint, Pellecchia requires the court to examine all allegations that relate to " the condition of danger from which a foreseeable risk of harm to the [Canner unit] is claimed to have arisen" Id., 776.
The cross claim alleges that Adeeb " contracted with South Meadow to . . . design the footing for each unit, " and " determined that units . . . could be built without piles, including the [Canner] unit" (¶ 5). It alleges Adeeb exclusively controlled the design of the foundation for the unit without piles (¶ 6). The original complaint alleges that there were concerns about the condition of the site related to sinking or settling of buildings and that Adeeb gave assurances the buildings will not settle (¶ ¶ 19, 22, 28, 38). Adeeb engineered and designed the foundations and recommended the use of " geofabric" or " geotextile" to stabilize the foundation although these were not sound engineering standards. (Fifth Amended Complaint ¶ ¶ 40, 69, 75, ex. H incorporated into the complaint.) The South Meadow parties maintain that Adeeb's determinations and assurances in conjunction with its design of the foundation, to be built without piles as alleged (¶ ¶ 29, 41, 42, 50, 52, 54, 62, 63), constitute " the dangerous condition" which underlies the damage to the Canner unit asserted in the original action. The court agrees.
All references to the original complaint cite to allegations in the Fifth Amended Complaint.
The Adeeb parties counter that in light of the allegations that the South Meadow parties were negligent when they built the Canner unit without piles (¶ ¶ 229-30 as restated in ¶ 3 of each count of the cross complaint) and the fact that the Adeeb defendants were not involved in building the Canner unit, no reasonable juror could find the Adeeb parties to have had exclusive control of the situation as alleged. As occurred in Pellecchia, the Adeeb defendants confuse allegations of negligent conduct with allegations that relate to the dangerous condition. The question at the motion to strike stage is whether the facts are sufficient so that the Adeeb defendants could be found to be exclusively in control of the condition of not building the Canner unit on piles, not whether they will be found exclusively in control. The fact that South Meadow built the foundation for the Canner unit without piles in accordance with Adeeb's design does not make it impossible for a fact finder to conclude that the Adeeb parties exclusively controlled the alleged dangerous condition of building it without piles.
The cross complaint sufficiently alleges the element of exclusive control. Accordingly, the motion to strike is denied.