Opinion
UWYCV116014292S(X02).
11-15-2012
DALEY MOVING & STORAGE, INC. OF TORRINGTON v. Eric CHADWICK d/b/a Summer Street Partnership et al.
UNPUBLISHED OPINION
SHABAN, J.
I
FACTS AND PROCEDURAL HISTORY
The plaintiff, Daley Moving and Storage, Inc. of Torrington, commenced the present action against, among others, the named defendant, Eric Chadwick d/b/a Summer Street Partnership (Chadwick), by service of process on July 7, 2011. The operative complaint, dated January 13, 2012, alleges the following relevant facts. On August 10, 2009, there was a fire at 200 Litchfield Street in Torrington, Connecticut, which was the location of commercial property owned by Chadwick. At all times relevant to the present action, the plaintiff was the assignee of a lease for commercial and storage space at 200 Litchfield Street. The fire caused damage to the plaintiff's personal property and the personal property of the plaintiff's customers, who rented storage space at the leased premises from the plaintiff. Counts one, two, three and four of the operative complaint are against Chadwick and sound in negligence, negligence per se, common-law indemnification and contribution, respectively.
Chadwick has in turn filed a cross complaint against Bunch Relocation, LLC, which leased space at 200 Litchfield Street at all times relevant to the present action. The March 22, 2012 operative cross complaint alleges the following relevant facts: that there was a lease agreement between the parties that was operative on August 10, 2009; that paragraph eleven of the lease agreement obligated Bunch Relocation, LLC to comply with all federal, state and municipal laws pertaining to its use and occupancy of its leased premises; and that paragraph twelve obligated Bunch Relocation, LLC to provide its own janitorial services and not allow combustible waste to accumulate on or near its leased premises. The cross complaint further alleges that Bunch Relocation, LLC caused any and all of Daley's alleged damages through various failures: negligently maintaining the sprinkler system, failing to warn Chadwick about the negligently maintained sprinkler system, negligently storing property on its leased premises, allowing people to smoke on its leased premises and negligently maintaining the electrical system on its leased premises.
Chadwick is the cross claim plaintiff, Bunch Relocation, LLC is the cross claim defendant and Daley is the plaintiff.
The cross complaint also alleges the following. Bunch Relocation, LLC possessed and controlled its leased premises, to the exclusion of Chadwick, who did not know and had no reason to know that Bunch Relocation, LLC was negligent. To the extent that the court might find Chadwick negligent in the direct action, such negligence was passive and not the cause of Daley's alleged damages. The cause of any and all of Daley's alleged damages was instead Bunch Relocation, LLC's active negligence. Therefore, should Daley recover against Chadwick in the direct action, Bunch Relocation, LLC would be liable to Chadwick for all or part of Daley's damages. Count one of the cross complaint sounds in common-law indemnification. Count two of the cross complaint sounds in contractual indemnification. With respect to count two, Chadwick alleges that Bunch Relocation, LLC's negligent conduct breached paragraphs eleven and twelve of the lease agreement, and these paragraphs set forth implied contractual rights to indemnification.
Bunch Relocation, LLC filed the present motion to strike and a memorandum of law in support thereof on March 27, 2012. Chadwick in turn filed an objection to the motion and a memorandum of law in support thereof on May 9, 2012. The court held oral argument on September 10, 2012.
II
DISCUSSION
A
Motion to Strike Standard
Practice Book § 10-39(a) provides in relevant part: " Whenever any party wishes to contest ... the legal sufficiency of the allegations of any ... cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or ... the legal sufficiency of any prayer for relief in any such ... cross complaint ... that party may do so by filing a motion to strike the contested pleading or part thereof." " Practice Book § 10-39 allows a claim for relief to be stricken only if the relief sought could not be legally awarded." (Internal quotation marks omitted.) Thomas v. State, 130 Conn.App. 533, 542, 24 A.3d 12 (2011).
A motion to strike " admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court takes " the facts to be those alleged in the [complaint] ... and construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). " If any facts provable under the express and implied allegations in the ... complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991); see also Sturm v. Harb Development, LLC, 298 Conn. 124, 140, 2 A.3d 859 (2010) (motion must be denied where provable facts support cause of action). " 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., supra, 240 Conn. at 580.
B
Count One: Common-Law Indemnification
There are " four separate elements ... to maintain a common law action for indemnity. These elements are: (1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [the cross claim plaintiff's], was the direct, immediate cause of the accident and injuries; (3) that [the other tortfeasor] was in control of the situation to the exclusion of [the cross claim plaintiff]; and (4) that [the cross claim plaintiff] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997). " It is plausible to define exclusive control over ‘ the situation’ as exclusive control over the dangerous condition that gives rise to the incident ." Id., at 706.
Bunch Relocation, LLC moves to strike count one, in part, on the ground that Chadwick has not alleged that the situation that gave rise to the incident (i.e, the fire and subsequent loss) was solely the fault of Bunch Relocation, LLC. It claims that the " situation" that gave rise to the incident was the commercial property itself and that Chadwick cannot claim that Bunch Relocation, LLC had exclusive control over the property, when certain state statutes and fire code provisions relative to the property imposed certain duties upon Chadwick as the property's owner. Chadwick argues in turn that Bunch Relocation, LLC's referral to the commercial property at 200 Litchfield Street, Torrington as the " situation" that gave rise to the incident is a mischaracterization, as the situation that gave rise to the incident was actually the dangerous conditions that caused the fire at the property. According to Chadwick, the allegations sufficiently state that Bunch Relocation, LLC had exclusive control over the dangerous conditions. Chadwick further argues that the issue of which party controlled the situation that gave rise to the incident is a question of fact that is inappropriate to decide on a motion to strike.
Bunch Relocation, LLC notes that Chadwick's specific allegations are that Daley's " damages were caused in whole or in part " by Bunch Relocation, LLC and that Bunch Relocation, LLC is or may be liable " for all or part of the [first party] [p]laintiff's claims." (Emphasis added.) Amended Cross Complaint, First Count, ¶ ¶ 7, 10. In considering an indemnification claim, our courts have made clear that such actions are ones that seek complete, rather than partial, indemnification. " [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest ..." (Emphasis added.) Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965). " In an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another [tortfeasor]." (Emphasis added; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 641, 732 A.2d 767 (1999).
Chadwick concedes that he may not seek partial indemnification and asks the court to strike the phrase " or part" from the cross complaint. " Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike ... only when it attempts to set forth all the essential allegations of a cause of action ... [O]nly an entire count ... can be subject to a motion to strike unless the individual paragraph embodies an entire cause of action or defense." (Internal quotation marks omitted.) O'Malley v. Devivo, Superior Court, judicial district of New Britain, Docket No. CV 09 4019885 (May 7, 2010, Trombley, J.) (49 Conn. L. Rptr. 801, 802). Paragraph ten, which contains the phrase " or part, " does not contain the entirety of Chadwick's common-law indemnification claim. This court adopts the majority rule, which logically applies with equal force to a phrase within a paragraph of a pleading, and thus declines to take the action requested by Chadwick. Because count one seeks either total or partial indemnification from Bunch Relocation, LLC, it is legally insufficient to state a claim for common-law indemnification, and the court grants the motion to strike it.
C
Count Two: Contractual Indemnification
Bunch Relocation, LLC also moves to strike count two on the ground that Chadwick has not alleged a provision within the parties' lease agreement that provides for indemnification. Chadwick objects to the motion with respect to count two by arguing that he has sufficiently alleged an implied contractual indemnification claim because he has alleged that Bunch Relocation, LLC breached paragraphs eleven, and twelve of the lease agreement, and both paragraphs " set forth implied contractual rights to indemnification ." Amended Cross Complaint, Second Count, ¶ ¶ 9, 10, 11.
An indemnification claim " not based on any express contract obligation but on a liability arising from negligence in the performance of the contract" is, " at most, an obligation to indemnify [that] might arise by operation of law. An obligation of that type, arising from a tort, such as negligence, is sometimes termed an implied obligation of indemnity ...
" It is true, of course, that out of a contractual relationship a tort liability, as in negligence, may arise ... And it sometimes happens that in such a situation an action is also maintainable in contract for breach of an implied obligation to exercise reasonable care in the performance of a contract ... This court has adopted the view that the [m]odern tendency is to make the fundamental nature of the obligation the test as to whether the action is founded upon either tort or contract ...
" In the absence, as here, of any express contract of indemnity, or breach of any express contract obligation, any claimed liability of [the cross claim defendant] for negligence in the performance of the contract, whether based on breach of an implied contractual obligation to use reasonable care or on the tort claim of negligence, as such would, in the light of the judgment in the [first party action] establishing, as to these plaintiffs, their own independent negligence, constitute a claim by them, as tort-feasors, for reimbursement from [the cross claim defendant], as a tort-feasor ." (Citations omitted; internal quotation marks omitted.) Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. at 410-11.
In Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 429 A.2d 808 (1980), a products liability action, the defendant manufacturer-seller of the allegedly defective machinery filed a third-party complaint against the plaintiff's employer, alleging that the employer's duty to control and maintain the machinery obligated the employer to indemnify the manufacturer-seller for any damages resulting from the employer's breach of its duty, under an implied contract theory. The trial court granted the employer's motion to strike the third-party complaint, and our Supreme Court upheld the decision: " The complaint does not allege an express contract of indemnification. Safeguard in its brief, and at oral argument, characterized Torin's duty as one arising out of an implied contractual obligation.
" The difficulty with Safeguard's claim of implied contract is the lack of correspondence between the factual circumstances alleged in the complaint and the duty said to arise therefrom. The claim of breach of an implied contract could be read to allege failure to perform duties imposed either by a contract implied in fact or a contract implied in law, also often called a quasi-contract ... Neither form of implied contract is supportable by the allegations of this cross-complaint.
" A contract implied in fact, like an express contract, depends on actual agreement ... yet the cross-complaint nowhere alleged that Torin agreed, either by words or action or conduct, to undertake any form of actual contract commitment to Safeguard. The receipt of instructions with regard to the safe use of a product is not per se tantamount to a promise to indemnify.
" A contract implied in law requires, as a foundation, that there be an obligation created by law that imposes a duty to perform. Again, the cross-complaint fails to identify, and counsel for Safeguard has not identified in its brief or on oral argument, the basis upon which such a duty is to be implied. The law does not independently impose a quasi-contractual duty upon a buyer to indemnify a manufacturer for injuries sustained by the buyer's employees in the use of a defective product." (Citations omitted.) Id., at 94-95.
The court in the present action likewise concludes that Chadwick has not expressly or impliedly alleged an implied contract in fact or law that provides for indemnification. There are no allegations that Bunch Relocation, LLC agreed, by words or action or conduct, to undertake a contractual commitment to indemnify Chadwick in the event that it breached paragraphs eleven and/or twelve of the lease agreement. Likewise, Chadwick has not identified the basis upon which the court may imply Bunch Relocation, LLC's duty to indemnify the plaintiff, in the event of its breach of paragraphs eleven and/or twelve. No appellate authority has been cited or found that independently imposes a quasi-contractual duty upon a tenant to indemnify a landlord for injuries causally related to the tenant's breach of lease obligations pertaining to compliance with the relevant law and/or maintenance of the leased premises.
Chadwick relies primarily upon Lopez v. Chemical Abuse Services, Superior Court, judicial district of New Haven, Docket No. CV 07 5010516 (May 7, 2008, Holden, J.), to argue that he has sufficiently alleged a claim for implied contractual indemnification. The Lopez citation is unpersuasive. There the court simply cited to basic implied contract principles and noted that " an indemnification action is also maintainable in contract for breach of an implied obligation to exercise reasonable care in the performance of a contract." (Internal citation marks omitted.) Id. It also relied only upon general motion to strike standards and concluded that a paragraph in the subject contract could support a claim for implied contractual indemnification. The court reached its conclusion even though the contract did not address " the manner in which the work was intended to be performed, " and the cross claim plaintiff did not allege " in what manner [the] paragraph ... constitute[d] a promise to indemnify." Id. Chadwick in the present action likewise has not alleged how paragraphs eleven and twelve obligated Bunch Relocation, LLC to perform the obligations contained therein or how the paragraphs contain implied rights to contractual indemnification.
The court thus grants the motion to strike with respect to count two.
D
Prayer for Relief
Bunch Relocation, LLC also moves to strike the prayer for relief, insofar that it requests attorneys fees for both the first-party action and the present action, because Chadwick has not alleged a contractual or statutory basis for doing so. The court grants the present motion with respect to the prayer for relief, because it has stricken the two underlying counts of the cross complaint, thereby making a claim for attorneys fees unviable.
III
CONCLUSION
For the foregoing reasons, the court grants the present motion to strike counts one and two of the cross complaint as well as the prayer for relief for attorneys fees.