Opinion
X10UWYCV136028741
05-26-2016
Marvalyn Beckford Foster v. Andrew Foster
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE THIRD-PARTY COMPLAINT (#137)
Kari A. Dooley, Judge.
Preliminary Statement
This action arises out of a motor vehicle accident. Plaintiff was operating a motor vehicle owned by defendant Andrew Foster, when, she alleges, the car inexplicably accelerated causing her to crash. Plaintiff alleges negligence in the maintenance and care of the vehicle. The defendant brought a third-party complaint against Toyota Motor Sales, U.S.A. Inc. and Toyota Motor Corporation (collectively Toyota) seeking common-law indemnification. Toyota filed a motion to strike the third-party complaint on the grounds that the Connecticut Product Liability Act (" CPLA" or " the Act") is the exclusive remedy for harms arising out of defective products and that the CPLA has abrogated common-law indemnification under the circumstances presented. Alternatively, Toyota claims that the allegations are insufficient to state a claim for common-law indemnification. The defendant opposes the motion. Oral argument was held on May 2, 2016.
Allegations
In her complaint, the plaintiff alleges that she was operating the defendant's Toyota vehicle in a parking lot when, without notice, it accelerated into a parked car, turned around and eventually flipped over causing her substantial personal injury. She alleges that the defendant was negligent in one or more of the following ways:
a. The Defendant failed to maintain his vehicle in a proper and safe driving condition;
b. The defendant's vehicle had been the subject of a recall notice by the manufacturer . . . for defective acceleration issues and the Defendant knew or should have known that the vehicle was defective;
c. The Defendant failed and refused to have the vehicle repaired by having the recall work performed although he knew or should have known of the recall notice and the defective condition;
d. The Defendant failed to notify the Plaintiff of the defective condition when he authorized her use of the vehicle for that date and time.
Complaint, para. 6. The defendant's " Indemnity Complaint" alleges
5. If plaintiff proves her allegation of " defective acceleration issues, " and further proves that her allegation that said defect was the cause of the accident . . . then the cause of the accident was a defective automobile manufactured by Toyota Motor Sales, U.S.A., Inc.
6. Therefore, if and to the extent that the defendant is liable for damages to plaintiff, either through judgment or settlement, he is entitled to indemnification from Toyota Motor Sales U.S.A., Inc. because that company's defective product caused the accident.
The defendant repeats these allegations as to Toyota Motor Corporation as well. It is within the framework of these pleadings that the motion to strike must be decided.
Discussion
The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The court must " examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). The court is limited " to a consideration of the facts alleged in the complaint." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996). For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges " mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
A. Does the Defendant's Third-Party Complaint Fall within the Scope of the Act?
The first basis upon which Toyota seeks to strike the third count of the third-party complaint is that the CPLA is the exclusive remedy for claims arising out of defective products and that under the CPLA, Foster is not permitted to implead Toyota because the CPLA " does not allow non-product sellers to implead product sellers as third-party defendants for purposes of seeking indemnification." Toyota further argues that the limitations period for impleading Toyota under the CPLA has expired. The defendant argues that he does not seek indemnification under the CPLA, but rather seeks common-law indemnification. He further avers that the statute relied upon by Toyota, § 52-577a, is inapplicable insofar as the plaintiff did not bring her claims pursuant to the CPLA. On these issues, the court agrees with the defendant.
While it is true that only a product seller may implead a third party under the CPLA for purposes of seeking contribution or indemnification, see Section 52-577a(b), the statute only applies in those circumstances where the original complaint is brought pursuant to the CPLA. Section 52-577a is the statute of limitations for product liability claims. Subsection (a) provides that " No product liability claim, . . . shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered, . . ."
This is hardly shocking. Insofar as the CPLA only governs claims against " product sellers, " see, Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 73, 579 A.2d 26 (1990), only product sellers would ever be in a position to implead another party pursuant to § 52-577a(b).
Subsection (b), on which Toyota relies, provides:
(b) In any such action, a product seller may implead any third party who is or may be liable for all or part of the claimant's claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court.
" In any such action" is an unambiguous reference to claims brought pursuant to the CPLA. See, Malerba v. Cessna Aircraft Co., 210 Conn. 189, 194, 554 A.2d 287 (1989). Here, plaintiff's complaint sounds in negligence and is not brought pursuant to the CPLA. Thus, Section 52-577a(b) is inapplicable and both arguments premised thereupon fail.
Of note, the motion to implead Toyota did not reference Section 52-577a as its authority. Rather, the motion to implead relied upon Section 52-102a(a), the statute through which indemnification complaints are typically pursued.
This does not end the inquiry however. The Indemnity Complaint clearly sets forth claims arising out of a Toyota's sale of a defective product. So the question remains whether a defendant in a negligence case can assert a claim of common-law indemnification against a product seller or whether such a claim is barred by the exclusivity provision of the CPLA.
In Malerba v. Cessna Aircraft, Co., 210 Conn. 189, 554 A.2d 287 (1989), the Supreme Court held that the CPLA did not abrogate common-law indemnity claims in all circumstances. There, the plaintiff sued Cessna pursuant to the CPLA. Cessna sought common-law indemnification from the aircraft's owner and mechanic alleging that the accident was a result of their negligence. The Supreme Court held that a product seller who is a defendant in an action brought under the CPLA could bring common-law indemnification claims against non-product sellers pursuant to Conn. Gen. Stat. § 52-577a(b).
This case is the inverse of the situation presented in Malerba .
Previous to Malerba, in Kyrtatas v. Stop and Shop, Inc. 205 Conn. 694, 535 A.2d 357 (1988), the Supreme Court held that the CPLA had abrogated common-law indemnification in the context of claims between codefendant product sellers. The Court held that the principles of comparative negligence set forth in § 52-572o could not be reconciled with common-law indemnification under the circumstances of that case. Id. at 701. The Court confined its holding to the " situation in which all potential defendants are parties to the suit." Id., 703 n.2.
It is worth noting that " all potential defendants" in a CPLA claim are necessarily product sellers. This case was not commenced under the Act and the defendant is not a product seller. As such, the decision in Kyrtatas has no application to the outcome of this issue.
Neither Kyrtatas nor Malerba control because unlike the claims brought in those cases, here, the plaintiff's claim is not brought under the CPLA. Therefore, this court is not asked to interpret how various provisions of the CPLA apply to claims brought thereunder. Rather, the court must determine whether this common-law indemnification count is within the scope of the Act and is therefore barred by the Act's exclusivity provision.
Our Supreme Court has held that the CPLA is " an exclusive remedy for claims falling within its scope." (Emphasis added.) Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). See also, Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (1990) (" The issue presented . . . is whether the plaintiff's CUTPA claim falls within the scope of the [CPLA]. If it does, then it is precluded and may not be asserted in conjunction with the product liability act claim. If however the CUTPA claim falls outside the purview of the . . . act, it may be asserted and the exclusivity provision will not serve as a bar"). Simply put, claims which fall outside the scope of the Act are not precluded by its exclusivity provision. Id. See also, Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 73, 579 A.2d 26 (1990) (exclusivity provision did not bar common-law claims against GM because GM was not a product seller as defined in the CPLA); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987) (" Once a particular transaction is labeled a " service, ' as opposed to a 'sale' of a 'product, ' it is outside the purview of our product liability statute").
Our appellate courts have not had occasion to determine whether a common law indemnification claim under the circumstances presented here fall within the scope of the CPLA and are therefore barred by its exclusivity provision. However, our appellate courts have considered the scope of the CPLA and its exclusivity provision in a variety of other contexts. These decisions are instructive.
Interpreting the CPLA is a matter of statutory construction, Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 468, 562 A.2d 517 (1989), the principles of which are well established.
General Statutes § 1-2z " instructs us that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning . . . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 651, 969 A.2d 750 (2009).
Envirotest Sys. Corp. v. Comm'r of Motor Vehicles, 293 Conn. 382, 386-87, 978 A.2d 49 (2009).
In Winslow v. Lewis-Shepard, Inc., supra, the plaintiff was injured as a result of a defective product. The Supreme Court held that the plaintiff could not bring common-law causes of action sounding in negligence, strict liability and others in light of the exclusivity provision of the CPLA. The Court relied, in part, upon the legislative history:
The Winslow decision predated the enactment of Conn. Gen. Stat. § 1-2z. However, the Court's analysis is consistent with the requirements of that statute. The Court found the statute at issue ambiguous and only then did it resort to extra textual sources.
The comments of the sponsors of the act are enlightening, to an extraordinary degree, on the question of whether it was intended to be the exclusive remedy for those persons injured by an allegedly defective product . " [T]he bill is based upon a Department of Commerce draft in the area of product liability . . . At the present time as you know, if you bring an action for a defective product, it's frequently brought based upon [warranty], based upon negligence and based upon strict liability . . . [The bill provides for] a single cause of action. It eliminates the complex pleading which we presently have involving, as I said, [warranty] and strict liability and negligence." 22 H.R.Proc., Pt. 20, 1979 Sess., pp. 7021-22, remarks of Representative John H. Berman . . .
Senator Salvatore C. DePiano made the following remarks about the proposed act:
Section 2 sets forth that the Bill is intended as a substitute for prior theories for harm caused by a product. This section is intended to cut down on the number of counts in a complaint for injuries caused by a product . . . Section 3 sets forth time limits for bringing a products liability claim while previously there were varying time limits depending on the theory of liability. This simplifies those limits by establishing one primary time limit. 22 S.Proc., Pt. 14, 1979 Sess., pp. 4636-37. Even more persuasive are the following comments of Senator DePiano made in response to a question concerning the effect of the new act on case law in the area of products liability: " I wouldn't say we would be abolishing all case law, what we're really abolishing is the various causes of action that have been brought in cases which we normally would call products liability cases. For example, the theory of strict liability, warranty, negligence and contract . . . would all be now merged into one cause of action which has been created by statute ." Id., p. 4639. In response to a question regarding the statutory definition of a products liability claim, Senator DePiano reiterated that " it's definitely the intention to create a products liability cause of action and . . . to abolish all the various other types of actions that we've been using to date and that's what we referred to in my statement that we're doing away with the multiple count [complaint] that usually takes place in this kind of a law suit. That is counts dealing with negligence, with breach of contract, with warranty and with strict liability." Id.(Emphasis added.) Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 469-71, 562 A.2d 517 (1989). The case has been cited repeatedly for the proposition that the CPLA " was intended to be the exclusive remedy for those persons injured by an allegedly defective product." See e.g. Hoboken Wood Flooring Corp. v. Torrington Supply Co., 42 Conn.Supp. 153, 156, 606 A.2d 1006 (Super.Ct. 1991). " The legislature stated that a product liability claim, as defined by the product liability act, 'shall be in lieu of all other claims against product sellers . . . for harm caused by a product.'" Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003).
In Gerrity, the Supreme Court was asked to determine whether a CUTPA claim could be brought in addition to claims under the CPLA. Its analysis is also instructive.
As noted previously, the legislature defined a product liability claim to include all claims or actions brought for personal injury, death or property damage caused by the allegedly defective product . General Statutes § 52-572m(b). The legislature also provided that the damages are caused by the defective product if they arise from the " manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product." General Statutes § 52-572m(b). In addition, a product liability claim is defined broadly to include, but not be limited to, all actions based on " [s]trict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." General Statutes § 52-572m(b). Finally, the legislature defined " [h]arm" for purposes of the act to include " damage to property, including the product itself, and personal injuries including wrongful death ." General Statutes § 52-572m(d). These definitions must be read together, with the understanding that the product liability act was designed in part to codify the common law of product liability, and in part to resolve, by legislative compromise, certain issues among the groups interested in the area of product liability. The product liability act, however, was not designed to eliminate claims that previously were understood to be outside the traditional scope of a claim for liability based on a defective product . Given this contextual framework, we conclude that a product liability claim under the act is one that seeks to recover damages for personal injuries, including wrongful death, or for property damages, including damage to the product itself, caused by the defective product. The language of the exclusivity provision, however, suggests that it was not designed to serve as a bar to additional claims, including one brought under CUTPA, either for an injury not caused by the defective product, or if the party is not pursuing a claim for " personal injury, death or property damage . . ." General Statutes § 52-572m(b) . . .
We conclude that the plaintiff's CUTPA claim may be asserted in conjunction with the product liability act claim. We reach this conclusion based on the following analysis of the plaintiff's second amended complaint. In part, at least, the plaintiff's CUTPA claim does not seek a remedy for personal injury, death or property damage . See General Statutes § 52-572m(b). The plaintiff seeks, rather, to use CUTPA so as to redress merely a financial injury suffered by the decedent, of a kind that has never been regarded as part of the traditional tort remedy for harm caused by a defective product . . . The financial injury allegedly suffered by the decedent and for which the plaintiff seeks to use CUTPA to provide a remedy, cannot reasonably be construed to be a claim for " personal injury, death or property damage . . ." General Statutes § 52-572m(b).(Emphasis added.) Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 127-30, 818 A.2d 769 (2003).
Applying the analyses above, the exclusivity provision of the CPLA applies only to those claims or actions which fit within the definition of a " product liability claim" and which are for " harm" as defined under the statute. Here, the defendant seeks common-law indemnification for damages which may be assessed against him as a result of the plaintiff's claims. Thus, this is not a claim for " personal injury, death or property damage" as required to be a " product liability claim." Similarly, the defendant does not seek compensation for " damage to property, including the product itself, and personal injuries including wrongful death." His claim is therefore not one for " harm" as required under the exclusivity provision of the Act. The definitions cited above, the legislative history and our appellate court precedents all contemplate that the Act applies to claims by persons injured as a result of a defective product. As was the case in Gerrity, the defendant's injury, if sustained, will be purely financial in nature. Therefore his claim does not meet the definition of a " product liability claim" and his purported damages do not meet the definition of " harm" as used in the exclusivity provision. Therefore, the defendant's common-law indemnification claim is not abrogated by the CPLA under the circumstances presented here.
Common-law indemnification merely shifts the impact of liability, the debt, from the passive or secondary tortfeasor to the active or primary one. Its application has little to no impact on the person actually injured by defective product.
The court's reading of the scope of the Act is also consistent with common sense. To preclude the defendant's claims against Toyota would be to place in the control of the plaintiff, the remedies available to the defendant. If she chooses not to bring a CPLA claim, the defendant would have no recourse against the party who may ultimately be found to have been primarily responsible for the plaintiff's injuries, thereby entitling the defendant to indemnification. Further down in the common sense column-it is incongruous to this court that a product seller can seek indemnification from a non product seller for negligence under the Act, see Malerba v. Cessna Aircraft Co., supra., but the inverse would be affirmatively precluded by the Act where the plaintiff's claims sound in negligence. This court sees no reasoned basis upon which to establish such disparate treatment between product sellers and non-product sellers depending on the plaintiff's chosen litigation strategy. " In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended." ATC Partnership v. Coats North America Consolidated, Inc., 284 Conn. 537, 545, 935 A.2d 115 (2007). See also, Tayco Corp. v. Planning & Zoning Comm'n of Town of Wallingford, 294 Conn. 673, 686, 986 A.2d 290 (2010) (" We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve").
It is also worth noting that the plaintiff's claim, as a negligence claim, is brought pursuant to Section 52-572h, which provides at subsection (j): " This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of such indemnity obligation."
Finally, the court notes that our courts, though perhaps not asked therein to decide the issue presented, have permitted defendants in negligence cases to implead product sellers for purposes of common-law indemnification. See, Peerless Insurance Company v. Tucciarone, 48 Conn.App. 160, 708 A.2d 611 (1998) (plaintiffs brought a complaint sounding in negligence against the defendants, owners of certain property destroyed by fire, and thereafter the owner/defendants brought a third-party complaint against the manufacturer of the product which allegedly caused the fire claiming violations of the CPLA and in a separate count, seeking indemnification); Therian v. Big Y Foods, Inc., 2003 WL 1962855 (Conn.Super. March 27, 2003) (Wagner, J.T.R.) (Plaintiff brought a negligence action against the defendant Big Y who filed a third-party complaint against the manufacturer of the container from which the liquid which caused the plaintiff's fall had leaked); Lee v. Northeast Graphics, Inc., 1993 WL 1119678 (Conn.Super. April 6, 1993) (Stanley, J.) (Defendant in a negligence action filed a third-party complaint against machine manufacturer alleging a defective product and seeking common-law indemnification); Coates v. Rolscreen Company, 1994 WL 282151 (Conn.Super. June 14, 1994) (Hadden, J.) (Defendant in a claim based upon negligence filed a third-party complaint against a window/screen manufacturer alleging that the window/screen was defective by virtue of the manufacturer's negligence).
B. The Sufficiency of the Allegations
Although the court has determined that the common-law indemnification under the circumstances presented here is not abrogated by the CPLA, the question remains whether the claim, as alleged, is sufficiently pled.
" Ordinarily, there is no right of indemnity or contribution between joint tortfeasors." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997), quoting, Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 697-98, 535 A.2d 357 (1988). However, " where, . . . one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury . . . Under the circumstances described, we have distinguished between 'active or primary negligence, ' and 'passive or secondary negligence.' . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active one." Id.
In order to maintain a common-law indemnification claim, the defendant must allege: (1) that Toyota was negligent; (2) that Toyota's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and injuries; (3) that Toyota was in control of the situation to the exclusion of the defendant; and (4) that the defendant did not know of such negligence, had no reason to anticipate it, and could reasonably rely on Toyota not to be negligent. Pellecchia v. Connecticut Light and Power Co., 139 Conn.App. 767, 771, 57 A.3d 803 (2012), citing, Smith New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).
At oral argument, the court indicated that the pleading requirements of a common-law indemnification claim were conspicuously absent and that however the substantive legal issues are resolved, the motion to strike would be granted on that basis. However, whether the defendant would be permitted to replead required a resolution of the substantive legal issues discussed above and to be discussed below.
In regards to the Indemnity Complaint, Toyota argues that not only does the complaint not include the necessary allegations, which is correct, Toyota also argues that the complaint cannot be cured under the circumstances. Toyota argues that based upon the language of the plaintiff's complaint, any finding of liability on the part of the defendant would necessarily preclude a finding of liability as to Toyota. As a matter of law, Toyota argues, any liability of the defendant would necessarily be " active" and personal to him, thereby precluding the necessary finding of " passive or secondary" negligence. In deciding the motion to strike, the court accepts all facts well-plead. Although the court has already noted the inadequacy of the allegations in the Indemnity Complaint in this regard, Toyota's argument is premised on the content of the plaintiff's complaint, (which will not change upon a repleading of the indemnity claim), and therefore, in the interest of judicial economy, the court takes it up at this time.
Where a motion to strike a third-party complaint is filed on the basis that the third-party defendant cannot, as a matter of law, be liable to the defendant for the claims by the plaintiff, the court assumes that the plaintiff prevailed in his cause of action against the defendant in the original action. Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452 A.2d 117 (1982) (the finding of the jury in the first-party action that the defendant third-party plaintiff was negligent was binding upon the defendant third-party plaintiff in the action for indemnification). In an indemnification action, the plaintiff is bound by all findings without which the judgment against him, for which he seeks indemnification, could not have been rendered. Preferred Accident Ins. Co. v. Musante, Berman & Steinberg, 133 Conn. 536, 541, 52 A.2d 862 (1947). Therefore, if a judgment in the first action against the defendant/third-party plaintiff rests on a fact that is fatal to recovery in the action against the third-party defendant, the third-party complaint cannot be maintained. Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 413, 207 A.2d 732 (1965).
It . . . is possible to have common law indemnification between unrelated parties whose separate and independent streams of negligence, one active and the other passive, give rise to a foreseeable risk of harm from the same condition of danger . . . In conclusion, Kaplan and its progeny stand for the proposition that, where two parties with independent duties to exercise reasonable care for the safety of another person separately breach those duties in ways that cause harm to the other person by exposing him to one and the same dangerous condition, equity permits the shifting of all responsibility for the injured person's resulting damages to the party who, by virtue of its control of the dangerous condition to the exclusion of the other negligent party, was the direct and immediate cause of the accident.Pellecchia v. Connecticut Light and Power, Co., 139 Conn.App. 767, 777, 57 A.3d 803 (2012). Whether the defendant/third-party plaintiff's negligence, even if found by the jury, was active or passive, is generally a question for the jury. Weintraub v. Richard Dahn, Inc., supra . In light of the above, this court concludes that the plaintiff's allegations do not defeat, as a matter of law, the defendant's indemnification claim.
Finally, Toyota argues that the defendant failed to adequately allege exclusive control of the injury causing situation. Again, Toyota is correct. Toyota also claims however, that the deficiency cannot be cured under the circumstances of this case.
Although the question of exclusive control of the situation is usually a question of fact and should not be decided on a motion to strike, there are circumstances under which the issue is one for the court. Pellecchia v. Connecticut Light and Power, Co., supra, 775. See also, Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694 704, 694 A.2d 788 (1997). Indeed, Skuzinski is instructive. There, the plaintiff brought a suit against the defendant when he was struck and injured by a truck owned by the defendant and operated by one of its employees. At the time, the plaintiff was walking in the road. The defendant brought a third-party complaint against the adjacent property owner on the theory that it's negligent failure to clear snow and ice from the sidewalk forced the plaintiff to walk in the street, thereby causing his injuries when he was struck by the truck. The Supreme Court held that the third-party complaint was properly stricken, though on grounds other than those relied upon by the trial court. For purposes of considering the validity of the complaint, the Court accepted that the third-party defendant was in exclusive control over the snow covered sidewalk; that the accumulation of snow and ice " forced" the plaintiff to walk in the street; and that the third-party defendants were negligent in their failure to clear the sidewalk or warn the plaintiff of its perils. Id. at 705. The Court held that these allegations, even if proven, could not result in a jury finding that the third-party defendants were in exclusive control over " the situation, that is to say over an accident caused by an unrelated party and occurring in the adjoining public roadway." Id. Thus, " the situation" or " dangerous condition giving rise to the accident" over which exclusive control is alleged must be determined by reference to the plaintiff's claims and then compared to the indemnification claim. Pellecchia v. Connecticut Light and Power, Co., supra . 775. See also, Gordon v. O'Neall Construction, LLC, 2009 WL 2230876 (Conn.Super. May 27, 2009) (Jennings, Jr., J.T.R.); Casadonte v. Northeast Property Group, 2011 WL 1468363 (Conn.Super. March 24, 2011) (Cosgrove, J.) (motion to strike denied where the indemnification complaint adequately alleged that the defendant had exclusive control over the landscaping, which is identified by the plaintiff as the conduct which gave rise to her injuries).
The court cannot engage in the required analysis unless and until the defendant sets forth the factual basis for the indemnification claim. Indeed, any opinion by this court on this issue would be premature and no more than a hypothetical advisory opinion. See, e.g. Putman v. Kennedy, 279 Conn. 162, 168, 900 A.2d 1256 (2006) (" [W]e note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law"); Shockley v. Okeke, 92 Conn.App. 76, 85, 882 A.2d 1244, (2005) " [An advisory] opinion is not a judgment and is not binding on anyone").
The motion to strike is GRANTED subject to the defendant's right to replead pursuant to our practice book and consistent with this opinion.