Opinion
No. X08 CV07-5003336S
May 27, 2009
Memorandum of Decision on Motion to Strike (No. 231)
This is an action by homeowners Sheldon and Christine Gordon ("Plaintiffs") against their home improvement contractor O'Neall Construction LLC and its principal Kevin O'Neall (collectively "Defendants" or "O'Neall") for damages claimed as a result of alleged defective construction of a conservatory at their residence. Plaintiffs have pleaded causes of action sounding in breach of contract, breach of express warranty, negligence, breach of implied warranty, fraud, and violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110a, et seq. Defendants, in turn, have served apportionment complaints pursuant to Conn. Gen. Stat. § 52-772h and also third-party complaints pursuant to Practice Book § 10-11 seeking common law indemnification against ten subcontractors/suppliers/service providers allegedly involved in the planning or construction of the conservatory. Included among those ten apportionment defendants/third-party defendants are two architectural firms: Gill Gill Architects, Inc. and the moving party herein Barnes Vanze Architects, Inc. The First Count of the Defendant's Second Amended Revised Third-Party Complaint (the "Third Party Complaint") directed against Gill Gill Architects alleges that Gill and Gill was hired by the plaintiffs to perform architectural services in connection with the construction of the conservatory and it was negligent in "failing to perform its work in a workmanlike manner and/or in accordance with industry standards by not adequately inspecting the specifications versus ongoing construction to ensure that the construction was being done in conformity with the plans in so much as the plaintiffs claim that both performance and construction were inconsistent with the plans." It was further alleged that Gill Gill "was in control of the architectural services it provided to the plaintiffs to the exclusion of the third party plaintiffs." The Sixth Count against Barnes Vanze Architects alleges that Barnes Vanze was hired by the plaintiffs to prepare plans in connection with the construction of the conservatory and that it was negligent in that it "deviated from accepted professional and industry standards by failing to provide and/or assess for adequate structural support for carrying members of the structure." It is alleged that Barnes Vanze "was in control of preparing the plans in connection with the subject conservatory to the exclusion of the third party plaintiffs."
P.B. § 10-11 provides in part that "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."
Now before the court is the motion of Barnes Vanze Architects, Inc. to strike the Sixth Count of the Third-Party Complaint because it alleges only legal conclusions and fails to allege facts sufficient to state a claim for common law indemnification (active-passive negligence) by failing to allege that Barnes Vanze was in exclusive control of the situation giving rise to the plaintiffs' injuries. For the reasons to be discussed, the court agrees with that position, and grants the motion to strike.
Motion to Strike — Legal Standard
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited, however, to a consideration of the facts alleged in the complaint." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, cert. denied, 273 Conn. 916 (2005). "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 necessarily implied from the allegations are taken as admitted." Violano v. Fernandez, 280 Conn. 310 (2006). "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." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party] has stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Hollister v. Thomas, 110 Conn.App. 692, 698 (2008). The modern trend in Connecticut courts "is to construe pleadings broadly and realistically, rather than narrowly and technically . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient." Edwards v. Tardif, 240 Conn. 610, 620 (1997).
Indemnification
"The law governing indemnification for torts in Connecticut 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." (Emphasis in original.) Franks v. Family Dollar Store, Docket No. CV08-5008870S, Superior Court, Judicial District of Waterbury (Brunetti, J., January 14, 2009), 2009 WL 323608, 2 (Conn.Super. 2009), citing Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42 (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.'" (Emphasis in original.) Id., citing Smith v. New Haven, 258 Conn. 56, 66 (2001).
A party "is entitled to indemnification, in the absence of a contract to indemnify, only upon providing that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortuous conduct." Torrington County Club v. Ply Gen, Docket No. 061340, Superior Court, Judicial District of Litchfield (November 8, 2004, Dranginnis, J.), 12 Conn. L. Rptr. 680, 1994 WL 320228, 2 (Conn.Super. 1994), citing Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 75 (1990). "When a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the "active or primary negligence" of the party against whom reimbursement is sought." Id., citing Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 415 (1965). "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 and death; (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." Smith v. City of New Haven, 258 Conn. 56, 66 (2001).
Discussion
Third-party defendant Barnes Vanze Architects, Inc. ("BVAI") argues that its Motion To Strike should be granted because the claims against BVAI are legally insufficient and fail to state a claim for indemnification based upon a contract claim or a theory of active-passive negligence. O'Neall does not allege that it is entitled to indemnification based upon a contract with BVAI. Under the common law theory of active-passive negligence, BVAI argues: 1) that the complaint cannot, as a matter of law, establish that BVAI had exclusive control over the situation; 2) that the acts alleged in the complaint against defendant/third-party plaintiff O'Neall, if proven, would prevent O'Neall from establishing that BVAI was primarily actively negligent and had exclusive control of the situation; and 3) that the allegations against BVAI amount to a legal conclusion unsupported by facts. O'Neall argues 1) that BVAI was in exclusive control of preparing the plans used by O'Neall, giving BVAI exclusive control over the situation; 2) that third-party plaintiffs have sufficiently pled a cause of action for indemnification in its third-party complaint 3) that it has stated a legally sufficient claim for common-law indemnification by pleading the four required elements.
The main issue in all of these arguments is the requirement of exclusive control of the situation by BVAI to the exclusion of the defendant, O'Neall. The Supreme Court defined "exclusive control over `the situation' as exclusive control over the dangerous condition giving rise to the accident." Skuzinski v. Bouchard Fuels Inc., Inc., 240 Conn. 694, 706 (1997). It is established that an allegation of exclusive control in a third party complaint for indemnification must ". . . be construed as against the allegations of the [original] plaintiff's complaint because it is the grounds alleged in the [original] complaint which will be the basis for holding [the party seeking indemnity] liable to the [original] plaintiff;" Wynn v. Labbadia, Docket No. CV90-302052, Superior Court, Judicial District of New Haven (September 1, 1994, Hadden, J.). 1994 Conn.Super. LEXIS 2217, *4, citing Cimino v. Yale University, et al., 638 F.Sup. 952 (D.Conn. 1986). Even the cases cited by O'Neall Construction support this proposition. See City of Bristol v. Dickau Bus Co., Inc., 63 Conn.App. 770, 774 (2001) (allegations of original complaint charging defendant/third party plaintiff with negligent management and supervision of others relied upon in upholding judgment of indemnification against third party defendant) and Satula v. Yale University, Docket No CV97-0404649S, Superior Court, Judicial District of New Haven, (December 7, 1998, Jones, J.), 1998 Conn.Super LEXIS 3452, *7 (allegations of original complaint considered in distinguishing another Superior Court case granting a motion to strike a claim of indemnity.)
In this case, then, "the situation" or "dangerous condition giving rise to the accident" over which exclusive control is alleged must be identified with reference to the claims of plaintiffs Mr. and Mrs. Gordon in their complaint against O'Neall. That complaint alleges that plaintiffs entered into an agreement with O'Neall wherein O'Neall agreed to act as a home improvement contractor and to provide labor and materials in connection with the construction of the conservatory. (Complaint, Third Count, ¶ 4.) The plaintiffs further allege that the O'Neall defendants owed to the plaintiffs a professional duty of skill and care which they breached through their defective, unworkmanlike, and untimely workmanship, which necessitated substantial corrective work and caused substantial delays ( Id. ¶¶ 16-18). Notably there is no allegation of defective design, or negligence in planning or specification of materials for the building of the conservatory. The claims essentially go to the quality of workmanship in the construction phase of the project. That, then, is "the situation" of the alleged condition giving rise to the damages for which O'Neall seeks to be indemnified by BVAI. Although O'Neall has alleged in conclusory terms that BVAI "was in control of preparing plans in connection with the subject controversy to the exclusion of the third party plaintiffs" (Third-Party Complaint, Sixth Count, ¶ 5e)) the preparation of plans is not "the situation" at issue nor the activity for which O'Neall is at risk to the Gordons. Under Practice Book § 10-11 a third-party defendant can be impleaded to respond to a defendant's claim that it ". . . is or may be liable to such defendant for all or part of the plaintiff's claim against him or her. "(Emphasis added.) That is not what the Sixth Count of the Third-Party Complaint in this case purports to do. It purports to charge BVAI with professional malpractice in preparing plans for the conservatory "by failing to provide and/or assess for adequate structural support for carrying members of the structure" which is outside the scope of the plaintiff's original complaint.
The situation here is similar to that in Torrington Country Club v. Ply Gen, et al., Docket No. CV92-0061340, Superior Court, Judicial District of Litchfield, (June 24, 1994, Pickett, J.) 1994 Conn.Super Lexis 1633, where the court granted a motion to strike third-party complaints filed by the general contractor and other product manufacturers and suppliers against the architectural firm who drew the plans for a new roof and supervised the construction, saying:
Newfield [the general contractor] has failed to allege facts that could prove that Kaestle Boos [the architectural firm] was in control of "the situation" to the exclusion of Newfield. This court is unwilling to conclude that Kaestle Boos, as the architect of the construction project, had a greater degree of control over the use and installation of the allegedly defective products than Newfield did as general contractor. Unlike the factual circumstances with Iffland and Truss Tech [other third party defendants] where the manufacturers could be directly responsible for the use of the defective products, Kaestle Boos' involvement can only be described as secondary. Id., *11
Although O'Neall attempts to distinguish Torrington Country Club on the ground that the plaintiff's original complaint in that case sounded in products liability, that distinction does not alter the outcome. The analysis is the same. Just as Judge Pickett looked at the original products liability complaint to determine that the services of the planning and supervising architect were outside "the situation" of exclusive architectural control, so also has this court looked at the original complaint against O'Neall sounding in poor workmanship and shoddy untimely construction practices to determine that the services of BVAI are likewise outside "the situation" of their exclusive control. In fact, in several respects, this case is even more compelling toward that conclusion than Torrington. Unlike the case against Kaestle Boos who were both the drawers of the plans for the new roof at the Torrington Country Club and the architects supervising the installation of that roof at the job site, there is no allegation in this case that BVAI was or ever agreed to be the supervising architect or was ever present at the job site where the poor workmanship allegedly occurred. In fact the Third Party complaint in the First Count specifically alleges that the other architect — third-party defendants Gill Gill were responsible for "adequately inspecting the specifications versus ongoing construction to ensure that the construction was being done in conformity with the plans" and were in exclusive control of architectural services at the site. To take the analysis even a step further, although O'Neall's memorandum of law at page 11 states that "the plaintiffs . . . allege damages with respect to a project for which Barnes Vanze prepared the plans," and there is an allegation in the Sixth Count that BVAI was hired by the plaintiffs "to prepare plans in connection with the construction of said conservatory," there is no allegation that the plans prepared by BVAI were the plans actually used for the construction of the plaintiffs' conservatory. The allegations totally fail to support the conclusion that BVAI was somehow guilty of active primary negligence that caused the alleged defects to the conservatory while O'Neall's role in that situation was only passive and secondary. Compare the facts in Satula v. Yale University, supra, cited by defendants, where the initial complaint alleged improper design and construction of a tiled patio floor and the defendant/third party plaintiffs ". . . clearly allege that architect Roth and Moore controlled the design and the specifications of the project and that the design and specifications were at all times followed." That genre of "exclusive control" factual allegations is totally absent in this case, and, without them, the third party indemnification claim cannot stand. Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. at 706 (The exercise of exclusive control over a sidewalk by failing to remove its snow cover cannot be equated to the exercise of exclusive control of "the situation" being an accident caused by an unrelated party and occurring in the adjoining public highway.)
It is true, as the defendants claim, that the determination of the issue of "exclusive control over the situation" is ordinarily a question of fact to be determined by the finder of fact. Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573 (1982); Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 418 (1965). But in a circumstance where "the disagreement of the parties does not, upon close examination, turn upon any meaningful dispute about the alleged facts" or a circumstance where under the factual scenario alleged, "no reasonable juror could find that the third party defendants had exclusive control over the situation," the issue should be decided by the court as a matter of law. Skuzinski, supra, 240 Conn. at 705-06. In this court's view this is such a case.
Order
For the foregoing reasons the motion of the third-party defendant Barnes Vanze Architects, Inc. to strike the Sixth Count of the Second Amended Revised Third Party Complaint of the defendants/third-party plaintiffs Kevin O'Neall and O'Neall Construction, LLC, dated November 20, 2008 is granted.