Opinion
No. CV04 0286362-S
November 4, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#118)
The third-party defendant, Danka Financial Services (hereinafter "Danka") moves for summary judgment pursuant to Practice Book § 17-44 alleging that there are no genuine issues of material facts regarding its liability to the third-party plaintiff Premier Support Services, Inc. (hereinafter "Premier").
I. Factual Background
Citicorp brought a lawsuit against Premier alleging that Premier had breached a lease agreement by failing to pay Citicorp rents due under the leasing agreement. Premier filed a motion to implead Danka on July 19, 2004 which was granted on September 16, 2004. The third-party complaint seeks indemnification from Danka for any judgment which Citicorp may obtain.
It is undisputed that Premier entered into a finance lease agreement with Danka on or about October 4, 2000 (lease agreement) and that on or about December 2000 Premier entered into a service agreement with Danka to service the copy equipment in question.
II. Legal Standard
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
"In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial. These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action. The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge." Practice Book § 17-44.
III. Legal Discussion
At oral argument, Premier conceded that its claim for indemnification does not arise out of any contractual language, but rather, it relies on the common-law right to indemnification to support its third-party complaint. The indemnification statute, Connecticut General Statutes § 52-102(a) permits a defendant to, "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." The operative language, "is or may be liable" however, is Premier's undoing. "Indemnification is available only when the third party defendant's liability is secondary to or a derivative of, the original defendant's liability on the original plaintiff's claim." Suncare v. Longridge Nursing and Rehabilitation Center, Inc., 24 C.L.R. 409, (April 27, 1998). The court concludes that Premier's alleged failure to pay Citicorp pursuant to the lease agreement is unrelated to and distinct from Premier's allegations that under the maintenance agreement, Danka failed to provide maintenance services. The maintenance contract and the leasing contract are separate contracts, entered into several months apart for two distinct purposes. Premier argues in its brief, "If Danka had not assigned the lease to Citicorp, this would simply be a case of whether Danka's own actions were responsible for the failure of Premier to pay the balance of the lease payments." This begs the question since it is undisputed that Danka had assigned the lease to Citicorp and as such is involved only from the perspective of the maintenance contract and not as it relates to the lease. Conceding that the contract language nowhere supports a claim for indemnification, Premier argues that the obligations for indemnification are implicit in the maintenance agreement. But an implied obligation to indemnify exists between joint tortfeasors only where one tortfeasor is primarily or actively negligent. Kaplan v. Merberg, 152 Conn. 405, 411 (1965). This case does not involve joint tortfeasors as defined in Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74 (1990).
The connection between the breach of contract for failure to make leasing payments between Citicorp and Premier is neither directly related to nor derivative of the alleged claim that Danka failed to properly service the copiers leased by Premier.
For the foregoing reasons, the motion for summary judgment is granted.