Henderson v. Bismark Construction Company, Inc.

Full title: Heath Henderson v. Bismark Construction Company, Inc. et al.

Court: Superior Court of Connecticut

Date published: Jul 10, 2019

No. FBTCV176062488S (Conn. Super. Ct. Jul. 10, 2019)

Opinion

FBTCV176062488S

07-10-2019

Heath Henderson v. Bismark Construction Company, Inc. et al.

STEWART, J.

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Stewart, Elizabeth J., J.

MEMORANDUM OF DECISION ON DEFENDANT/THIRD-PARTY PLAINTIFF OWI CONTRACTORS, LLC’S THIRD AMENDED CROSS CLAIM AGAINST THIRD-PARTY DEFENDANT A&A DRYWALL & ACOUSTICS, INC.

STEWART, J.

Defendant/Third-Party Plaintiff OWI Contractors, LLC ("OWI") sues Third-Party Defendant A&A Drywall & Acoustics, Inc. ("A&A") in its third amended cross claim (no. 144.00) for contractual indemnification and breach of contract to provide additional insured coverage. Plaintiff Heath Henderson initially sued Bismark Construction Company, Inc., the general contractor on a project known as Longfellow Elementary School Phase 3, for injuries he sustained as he "was carrying drywall materials ... which was part of his job duties" "under the employ of said A-A Drywall ..." Amended Complaint at ¶¶6, 8 (no. 107.00). Bismark in turn brought an apportionment complaint against both OWI and A&A. Complaint for Apportionment (no. 103.00). The court (Arnold, J.) struck that apportionment complaint against A&A on the grounds that A&A, as the plaintiff’s employer, was protected by the Workers’ Compensation Act. Order (no. 105.10). The plaintiff then amended his complaint to assert premises liability claims against both Bismark and OWI. Thereafter, OWI brought a cross complaint against A&A, seeking indemnification based on contract and the common law. Cross Complaint (no. 115.00).

The plaintiff’s claim went to trial. On the first day, before evidence was presented, OWI was granted leave to file a third amended cross claim to assert a claim for indemnification based on its subcontract with A&A and to assert a breach of that same subcontract for A&A’s alleged failure to provide defense and indemnity to OWI as an additional insured under A&A’s general liability insurance policy. No. 144.00.¹ Based on the agreement between OWI and A&A that this cross claim presented purely an issue of law, the court excused A&A from the evidence portion of the trial and the court stated it would decide the cross claim on the basis of briefs and oral argument from the parties after the conclusion of the trial. The court and the jury proceeded to hear evidence on the plaintiff’s amended complaint against Bismark and OWI. On December 4, 2018, the jury came back with defense verdicts in favor of both defendants. Verdict Forms and Interrogatories (no. 159.00). OWI and A&A then briefed the issues raised by the OWI cross claims, and the court heard oral argument on April 12, 2019.

1 A review of the docket does not indicate any responsive pleading filed by A&A.

I. COUNT ONE: CONTRACTUAL INDEMNIFICATION

In Count One, OWI alleges that it entered into a subcontract with A&A in which OWI was the "contractor" and A&A was the "subcontractor." Third Amended Cross Claim, count one at ¶¶6, 7. That subcontract defined "Work" as "[i]n Areas C and D: Furnish and Install Metal Studs, Drywall and Insulation. Install Door Frames in your work only, Door Frames supplied by others." Exhibit 1 to OWI opening brief (no. 163.00). That subcontract set forth A&A’s liability in Paragraph 4, and more particularly, set forth A&A’s obligation to indemnify OWI in Subparagraph 4.c. ("Indemnity Clause"):

To the fullest extent permitted by law, Subcontractor shall indemnify, defend, and hold harmless Contractor, Owner and their respective officers, directors, employees and agents, and all other persons expressly entitled to indemnity under the Contract Documents ("Indemnified Parties") from and against all claims, damages, demands, losses, expenses, fines, causes of action, suits or other liabilities, (including all costs, reasonable attorneys fees, consequential damages, and punitive damages), arising out of or resulting from, or alleged to arise out of or result from, the performance of Subcontractor’s Work under the Subcontract, whether such claim, damage, demand, loss or expense is attributable to bodily injury, personal injury, sickness, disease or death, or to injury or destruction of tangible property, including the loss of use resulting therefrom, economic loss, or otherwise, and regardless whether the claim is presented by an employee of Subcontractor. This indemnification obligation shall expressly exclude any liability for bodily injury or property damage arising from the sole negligence of the Indemnified Parties, their employees or agents. Such Indemnity obligation shall not be in derogation or limitation of any other obligation or liability of Subcontractor or the rights of Contractor contained in this Subcontract or otherwise. This Indemnification shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Subcontractor under any workers’ compensation acts, disability benefits acts or other employee benefits acts. This indemnification shall be in addition to any Indemnity Liability imposed by the Contract Documents, and shall survive the completion of the Work or the termination of the Subcontract.

Because the trial resulted in a defense verdict in favor of OWI, the only issue is whether A&A owes OWI a duty to defend under this Indemnity Clause. OWI argues that the duty to defend is based on a comparison of the Indemnity Clause with the allegations of the amended complaint against OWI. The court agrees with this approach. Although research did not reveal any appellate authority, and the parties have not provided any appellate authority, a few Superior Court decisions have discussed whether the law on an insurer owing a duty to defend applies to the analysis of whether one of two commercial parties owes a duty to defend to the other based on a contract for indemnity. In a premises liability case, one of the defendants moved for summary judgment against a third-party defendant snow removal contractor for breach of the duty to defend. Harman v. Belisle, Superior Court, judicial district of Hartford, Docket No. CV-12-6035291-S (September 4, 2014, Wiese, J.). The court held that the approach of insurance coverage cases applied and proceeded to determine "whether the allegations in the relevant complaints bring the injury within the coverage and scope of the Contract." Id. Another Superior Court held that there was no reason why the duty to defend analysis of insurance cases would not apply to "a detailed contract which was negotiated at arm’s length between private, sophisticated, business parties ..." Doe v. Terry, Superior Court, judicial district of Waterbury, Docket No. CV-08-5008897-S (January 10, 2011, Shaban, J.). That court held that "[t]he obligation to defend does not depend upon whether the party to whom a defense is provided ultimately prevails in the underlying cause of action. Instead, it depends upon whether the allegations in the complaint bring the injury within the coverage." Id.

Notably, another Superior Court declined to apply the insurance coverage analysis to an indemnity provision, but that was in response to an argument that the duty to defend is broader than the duty to indemnify and that there was a duty to defend regardless of any ambiguities in the contract. Pray v. Crystal Mall, LLC, Superior Court, judicial district of New London, Docket No. CV-07-5002405-S (December 10, 2009, Peck, J.) [49 Conn. L. Rptr, 16]. This court need not address those contract interpretation issues that might indeed differ for the insurance context. The court simply holds that the way in which to determine whether there is a duty to defend here is to compare the contract language of the Indemnity Clause with the amended complaint’s allegations against OWI to determine if those allegations fall "even possibly within coverage." (Emphasis added; internal quotation marks omitted.) Moore v. Continental Casualty Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000). See also Lee v. Aetna Casualty & Surety Co., 178 F.2d 750 (2d Cir. 1949) (Hand, J.).

A. The Allegations Against OWI Fall Within the Defense Clause

The first issue is whether the amended complaint alleges a claim against OWI that is within the coverage grant of the indemnity clause. This requires an allegation against OWI "arising out of or resulting from, or alleged to arise out of or result from, the performance of Subcontractor’s Work under the Subcontract ..." The amended complaint does not need to expressly allege that the plaintiff’s injuries were caused by A&A and its agents, as argued by A&A. Instead, the duty to defend depends on allegations that OWI’s negligence "arose out of" the "work" of A&A. Royal Indemnity Co. v. Terra Firma, Inc., 50 Conn.Supp. 563, 574, 948 A.2d 1101 (2006), aff’d, 287 Conn. 183, 947 A.2d 913 (2008) . Therefore, this court will analyze whether the allegations against OWI possibly fall within the above-quoted language that creates the duty to defend.

The language "arising out of" and "arising from" has been interpreted broadly by Connecticut courts. Our Supreme Court held that where a subcontractor’s employee sustained injuries from a fall when he was carrying his tools, work clothes and lunch box to depart for the day, the subcontractor was required to indemnify the contractor on the basis of the following language: "caused by, resulting from, arising out of or occurring in connection with the execution of the Work." Cirrito v. Turner Construction Co., 189 Conn. 701, 704, 458 A.2d 678 (1983). The court concluded that although the employee was not actually laboring when he was injured, the parties’ stipulated facts in that case indicated a sufficient connection between his injuries and his work to make the indemnitor liable. Id., 709, 458 A.2d 687.

After Cirrito was decided, our Supreme Court has continued to broadly interpret "arising out of" in the insurance context. For example, in QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 374, 773 A.2d 906 (2001), the court stated: "[I]t is generally understood that for liability for an accident or an injury to be said to ‘arise out of’ [an occurrence or offense], it is sufficient to show only that the accident or injury ‘was connected with, ’ ‘had its origins in, ’ ‘grew out of, ’ ‘flowed from, ’ or ‘was incident to’ [that occurrence or offense], in order to meet the requirement that there be a causal relationship between the accident or injury and [that occurrence or offense] ... To "arise" out of means ‘to originate from a specified source.’ Webster’s Third New International Dictionary (1961); see also Black’s Law Dictionary (7th Ed. 1999) (defining ‘arise’ as ‘1. [t]o originate; to stem [from] ... 2. [t]o result [from]’). The phrase arising out of is usually interpreted as indicat[ing] a causal connection." (Citations omitted; internal quotation marks omitted.)

Superior Courts also have broadly interpreted the phrase "arising out of." In Terra Firma, supra, the court relied on the "broad nature" of "arising out of" to grant summary judgment in favor of a contractor seeking a defense as an additional insured under its subcontractor’s insurance policy. 50 Conn.Supp. at 575, 576, 948 A.2d 1101. The contractor and subcontractor entered into a contract, which like the subcontract at issue here, required the subcontractor (1) to indemnify the contractor for damages caused in whole or in part by the subcontractor, and (2) to provide additional insured coverage for the contractor. Id. at 565, 948 A.2d 1101. Two employees of the subcontractor were injured on the job when the trench being dug by the subcontractor caved in on them. Id. at 565, 570, 948 A.2d 1101. At the trial of the underlying claims by the employees, the court excluded evidence of negligence by the subcontractor on the grounds that workers’ compensation provided the exclusive remedy. Id. at 565-66, 948 A.2d 1101. The employees prevailed against the contractor. Id. at 566, 948 A.2d 1101. Thereafter, the insurance carrier disclaimed any duty to defend or indemnify, arguing that the contractor could not be an additional insured under the policy because the employees could only recover as to the negligence of the contractor and not the subcontractor. Id., 948 A.2d 1101. The court in the coverage case rejected this argument. Interpreting the policy language that limited the contractor’s role to "liability arising out of: ‘your work’ performed for that insured at the location designated in the contract, ..." the court held that the contractor’s liability arose out of its role as the general contractor for the work done by the subcontractor. Id. at 569, 574, 948 A.2d 1101. Terra Firma and other cases broadly construing "arising out of" were relied upon in Doe v. Terry, supra, to hold that there was a contractual duty to defend under an indemnity clause. Superior Court, judicial district of Waterbury, Docket No. CV-08-5008897-S.

The other issue to be considered from the language of the coverage grant in the Indemnity Clause is the meaning of "Subcontractor’s Work under the Subcontract." That term is defined in the subcontract as "[i]n Areas C and D: Furnish and Install Metal Studs, Drywall and Insulation. Install Door Frames in your work only, Door Frames supplied by others."

With that language and the case law defining "arising out of," the court turns to the allegations of the amended complaint. The only count against OWI is count two. In that count, the plaintiff made the following claims against OWI:

3.... the defendant, OWI Contractors, LLC, was in charge of said remodeling ...

4.... the defendant hired other companies, known as subcontractors, to perform parts of the work that needed to be done to remodel said aforementioned building.

5. The defendant contracted with A-A Drywall to install drywall into parts of said aforementioned building.

6.... the plaintiff was under the employ of said A-A Drywall and was in the act of installing drywall in said aforementioned building.

7.... the defendant knew, or with reasonable inspection, should have known, of a dangerous condition consisting of refuse and/or debris that had accumulated on the ground in said aforementioned building.

8. As the plaintiff was carrying drywall materials on the aforementioned premises, which was part of his job duties, he was caused to slip and fall on a pile of waste, refuse and/or debris that had accumulated on the ground in said building.

9.... the defendant owed a duty to its employees, subcontractors and individual workers, such as the plaintiff, to provide a safe working environment, and in particular, a waste, refuse and debris free environment in which to perform their work.

10. The injuries suffered by the plaintiff were proximately and directly caused by the negligence of the defendant by and through its agents, employees and/or servants, in that:

a. They failed to provide the plaintiff a work environment that was free of waste, refuse and/or debris;

b. They failed to remove waste, refuse and/or debris from the areas in which they knew that individuals, such as the plaintiff, would be working;

c. They failed to hire an individual or entity to safely remove waste, refuse and/or debris from the areas in which they knew that individuals such as the plaintiff would be working;

d. They failed to provide the plaintiff with alternative means to perform his job without having to step near, over or around said waste, refuse and/or debris;

e. They failed to make routine inspection of the premises;

f. They failed to provide the plaintiff a safe work space in which the plaintiff could complete his work duties without being exposed to an unreasonable risk of bodily harm.

The court finds that these allegations potentially fall within the coverage grant of the Indemnity Clause. They allege that OWI hired A&A to do the drywall installation and that the plaintiff slipped and fell as he was carrying drywall materials while on the job. Furthermore, they assert that OWI and its agents (an undefined term) were negligent for failing to address waste, refuse and/or debris at the worksite. See Parker v. Konover Construction Corp., Superior Court, judicial district of Middlesex, Docket No. CV-99-0090911-S (June 24, 2003, Aurigemma, J.) (holding that complaint allegations were within indemnity clause because subcontractor was contractor’s "agent"). The allegations quoted above are enough to state that OWI could be liable "arising out of or resulting from, or alleged to arise out of or result from, the performance of Subcontractor’s Work under the Subcontract ..."² See Konover Construction Corp. v. Terra Firma, Inc., Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X04-CV-05-4005559 (May 24, 2007, Beach, J.) (holding that similar indemnification clause could apply if negligence of both contractor and subcontractor were substantial factors in producing injuries).

2 In its reply brief (no. 165.00) and at oral argument, OWI relied heavily upon the Supreme Court’s decision Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 876 A.2d 1139 (2005) to argue that this court could look at facts outside of those alleged in the amended complaint to determine whether there is a duty to defend. OWI did not provide any authority that would extend that holding outside of the insurance context, and this court declines to apply the analysis of that case to an indemnity clause negotiated by two commercial parties.

B. A&A’s Duty to Defend OWI is Not Barred by General Statutes § 52-572k

The court’s finding that the allegations possibly fall within the coverage grant language of the Indemnity Clause does not end the inquiry for count one of OWI’s third amended cross claim. The Indemnity Clause contains an exclusion. It states: "[t]his indemnification obligation shall expressly exclude any liability for bodily injury or property damage arising from the sole negligence of the Indemnified Parties, their employees or agents." Moreover, as A&A points out in its opposition memorandum, Connecticut General Statutes § 52-572k prohibits indemnification for a party’s negligence in construction contracts.

Section 52-572k(a) currently reads as follows:

Hold harmless clause against public policy in certain construction contracts. (a) Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee’s agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers’ compensation agreement or other agreement issued by a licensed insurer.

The statute previously limited its bar to "sole negligence," but Public Act 01-155 amended that language to "negligence."

Under the original version of the statute, Superior Courts held that three requirements must be met for the statute to apply: "(1) the agreement must be entered in connection with or collateral to a construction contract; (2) the agreement must indemnify the promise[e] for damages arising out of bodily injury to persons or damage to property; and (3) the damages must be caused by or result from the sole negligence of the promisee." See, e.g., Dotson v. D.A.’s Home Improvement & Landscaping, Inc., Superior Court, judicial district of New Haven, Docket No. CV-00-0436972-S (November 5, 2002, Arnold, J.); Courter v. Becker, Superior Court, Docket No. CV-96-0537716-S (April 27, 1998, Handy, J.) (22 Conn.L.Rptr. 166). Based on the change in the statutory language from "sole negligence" to "negligence" by Public Act 01-155 after these cases were filed, this court holds that the third requirement should be modified to "the damages must be caused by or result from the negligence of the promisee."³

3 The court has found only one recent decision stating the three requirements, including the requirement of sole negligence. Williams v. Westport, Superior Court, judicial district of Fairfield, Docket No. CV-13-6032960-S (December 15, 2015, Kamp, J.). That case ultimately held that the statute did not apply because the contract at issue was not a construction contract.

Other Superior Courts have held that the current version of the statute bars any obligation by a subcontractor to indemnify a contractor for any of that contractor’s negligence. See, e.g., Cloutier v. Nathall 28 PR, LLC, Superior Court, judicial district of Litchfield, Docket No. CV-15-6012947-S (June 28, 2017, Pickard, J.T.R.) ; Cappello v. Phillips, Superior Court, judicial district of Litchfield, Docket No. CV-08-5004470-S (June 1, 2011, Danaher, J.); Muscarella v. BBL Construction Services, LLC, Superior Court, judicial district of New London, Docket No. CV-07-5003828-S (January 29, 2010, Parker, J.T.R.) (involving claim by A&A employee who stepped off baker and slipped on sheet metal that had been left on floor); Konover Construction Corp. v. Terra Firma, Inc., supra, Superior Court, Docket No. CV-05-4005559-S (holding that new language "might well bar relief" even if subcontactor’s negligence was substantial factor); Patt v. Metropolitan District Commission, Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X04-CV-04-4003558-S (December 20, 2006, Beach, J.) ("Because of the elimination of the word ‘sole, ’ I conclude that the statute indeed does bar application of the indemnity clause in the circumstances presented here ..."). But see Yuditski v. Dibico Construction of Connecticut, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-12-6024517-S (December 23, 2014, Bellis, J.) (holding that contractual indemnification was not barred by current version of Section 52-572k because indemnity provisions had carve-out that required indemnification "only to the extent attributable to the negligence of the Subcontractor"). On the basis of the language of the current version of Section 52-572k, the cases that have interpreted it and their application to the Indemnity Clause at issue here, this court holds that Section 52-572k bars any duty to indemnify by A&A.

Once again, this conclusion does not end the inquiry. What is at issue here is the duty to defend, which is separate from the duty to indemnify. Although Section 52-572k bars indemnity and hold harmless provisions, it makes no mention of the duty to defend. There is no appellate authority on point, but every Superior Court decision identified by the court’s research has held that even the current version of Section 52-572k does not bar a duty to defend in an indemnification provision of a construction contract. "A contractual duty to defend is not precluded or limited by Conn. Gen. Stat. § 52-572k(a), which prohibits construction contracts indemnifying or holding harmless a promisee against liability for bodily injury arising out of the negligence of the promisee. The statute does not address contractual duties to defend and does not purport to limit contractual duties of that description." Collins v. Bartlett Brainard Eacott, Inc., Superior Court, judicial district of New Haven, Docket No. CV-13-6043018-S (February 15, 2017, Blue, J.) . See also Cappello v. Phillips, supra, Superior Court, Docket No. CV-08-5004470-S; Young v. King Brothers, Inc., Superior Court, judicial district of New Britain, Docket No. CV-06-5000792-S (September 2, 2009, Pittman, J.); Rouleau v. Walter D. Sullivan Company, Inc., Superior Court, judicial district of Hartford, Docket No. CV-02-0821210-S (January 17, 2006, Miller, J.). This court agrees with the reasoning of these cases and holds that because Section 52-572k is silent as to the duty to defend, it does not bar a duty to defend.⁴

4 52-572k(a) expressly states that it "shall not affect the validity of any insurance contract ... issued by a licensed insurer." For that reason, courts have held that actions to recover defense and indemnity from insurance companies may proceed. See, e.g., Capello v. Phillips, Superior Court, judicial district of Litchfield, Docket No. CV-08-5004570-S (June 1, 2011, Danaher, J.); Young v. King Brothers, Inc., Superior Court, judicial district of New Britain, Docket No. CV-06-5000792-S (September 2, 2009, Pittman, J.); Royal Indemnity Co., supra, 50 Conn.Supp. at 570, 575, 948 A.2d 1101.

This court holds that the allegations of the amended complaint fall within the duty to defend provision of the Indemnity Clause and that Section 52-572k, although it would bar any indemnification by A&A for any negligence by OWI, does not bar that duty to defend. Therefore, OWI prevails on its claim in count one for a defense in this action. The court will address what, if any, recovery OWI is entitled to later in this opinion.

II. COUNT TWO: BREACH OF CONTRACT TO PROCURE INSURANCE

In Count Two, OWI alleges that A&A breached subcontract Paragraph 5.a., which states:

Prior to commencing the Work, Subcontractor shall procure, and thereafter maintain, at its own expense, until final acceptance of the Work or later as required by the terms of the Subcontract, Insurance coverage required by the Contract Documents and this Subcontract. At a minimum, the types of insurance and minimum policy limits specified in Exhibit D shall be maintained in a form and from Insurers acceptable to Contractor. All Insurers shall have at least an A (excellent) rating by A.M. Best and be qualified to do business in the jurisdiction where the Project is located.

The pertinent provisions of Exhibit D, entitled "Insurance," are as follows:

2. Commercial General Liability Insurance- Commercial General Liability Insurance shall be provided by Subcontractor in the following amounts: One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) in the aggregate. This policy should be written on an occurrence basis on an ISO form (CG 00 0112 07) or a substitute form providing equivalent coverage and shall cover liability arising from premises, operations, independent contractors, ... and liability assumed under insured contract (including the tort liability of another assumed in a business contract).

8. General Requirements:

d. All insurance policies, except for Workers’ Compensation and Professional Liability, shall be endorsed to include Owner, Contractor and their respective officers, directors, agents and employees as additional insureds (collectively "Indemnitees") covered for liability arising out of any ongoing and completed operations on a primary noncontributing basis. Additional insured status shall be secured using ISO Additional Insured Endorsement CG 20 10 (11/85 edition only) or endorsements CG 20 33 10/01 and CG 20 37 20/01 combined or an endorsement providing equivalent coverage to the additional Insureds which confirms that all additional insureds shall have coverage for a completed operations under the commercial general liability insurance and umbrella for the period specified herein.

Together, these provisions required A&A to obtain commercial general liability insurance and to make OWI an additional insured on that policy.

OWI alleges that there was a breach of these provisions. Specifically, OWI alleges "A&A failed to honor its contractual obligation to provide defense and indemnity to OWI as an additional insured, to endorse the appropriate CGL policy to name Owner and/or OWI as an additional insured, and/or to ensure that the appropriate insurance coverage was provided for OWI for the losses claimed by Plaintiff in this lawsuit, in breach of its obligations and contractual duties pursuant to the Subcontract Agreement." Third Amended Cross Claim, count two, ¶16.

In its brief, OWI states "OWI was clearly an additional insured under A&A’s policy." If that is in fact the case, A&A would appear to have satisfied the requirements of Paragraph 5.a. and Exhibit D of the subcontract, with the possible exceptions of the amounts of coverage and the particular endorsement forms specified in Exhibit D. The court cannot make its own determination as to whether these provisions have been satisfied because the only policy document that OWI provided to the court was a three-page standard form entitled "Blanket Additional Insured (Contractors)" in Exhibit 2 to its brief. More to the point, the admission that A&A procured a policy with an additional insured endorsement naming OWI would dispose of the second and third bases for its claim of breach quoted above.

Perhaps for that reason, the only basis for breach that OWI discusses in its brief is the first one- that OWI is owed defense and indemnity under the policy. The court finds that Paragraph 5.a. and Exhibit D of the subcontract do not require A&A to provide defense and indemnity to OWI as an additional insured. They only require A&A to procure and maintain a commercial general liability policy that names OWI as an additional insured.

This claim of breach is more properly directed at the insurance company that issued the policy and the additional insured endorsement, not A&A. Young v. King Brothers, Inc., supra, Superior Court, Docket No. CV-06-5000792-S ("the dispute, if any, would likely be with the insurance carrier rather than with the party who was obligated to obtain the insurance"). Compare Konover Construction Corp. v. Terra Firma, Inc., supra, Superior Court, Docket No. CV-05-4005559-S (general contractor’s claim for contractual indemnification against subcontractor) with Royal Indemnity Co. v. Terra Firma, Inc., supra, 50 Conn.Supp. 563 (subcontractor’s insurance company’s claim against general contractor and subcontractor). Indeed, all of the cases OWI cites for the proposition that it was owed a defense as an additional insured involved the insurance carrier. It cites no authority for the proposition that the policyholder, rather than the insurance carrier, is liable to provide defense and indemnity under the policy to an additional insured.

The court holds that OWI has not met its burden of proving that A&A breached the subcontract provisions at issue in count two or that OWI is entitled to any relief from A&A on count two, and judgment shall enter in favor of A&A on that claim. The court does not rule on the liability, if any, of the insurance carrier on A&A’s policy to OWI for its defense costs because that carrier is not a party to this case and the full policy has not been provided to the court for its review. For those same reasons, the court will not address two of the arguments made by A&A in its opposition memorandum about count two- when the obligation to reimburse defense costs under the policy began and whether there is a duty to defend under the policy for the claims made in the amended complaint against OWI.

III. DAMAGES

The court earlier determined that OWI is entitled to a duty to defend from A&A based on the Indemnity Clause. Since the underlying case already has gone to judgment, OWI already has incurred its defense costs, and the parties have indicated that the court should determine how much, if any, of those defense costs OWI is to recover.

The first issue for the court is the start date for those defense costs. Connecticut courts typically hold that defense costs may be recovered from the date that the defense is tendered. See, e.g., Interface Flooring Systems, Inc. v. Aetna Casualty & Surety Co., 261 Conn. 601, 611, 619, 804 A.2d 201 (2002) (holding that insured could not recover pre-tender expenses under Georgia law and that there was no difference between Connecticut and Georgia law). Although Interface Flooring Systems, Inc. and other cases discussing this issue in the insurance context have relied on the policies’ voluntary payments clause, which does not exist in the subcontract here, the court holds that it would be inappropriate to require A&A to pay defense costs before it had notice of the claim against OWI. The earliest date that has been provided to the court is September 21, 2017, the date OWI filed its cross claim against A&A.

The end date for the defense costs should be the final day of trial, December 4, 2018.

OWI has provided the court with copies of its bills covering this time period, which the court marked as Court Exhibit F. A&A challenges those bills on the grounds that they include time entries for work done prosecuting the cross claim for indemnification rather than for work done in defense of the plaintiff’s claim. Opposition Memorandum (no. 164.00) (citing Burr v. Lichtenheim, 190 Conn. 351, 363, 460 A.2d 1290 (1983); Sendroff v. Food Mart of Connecticut, Inc., 34 Conn.Supp. 624, 626, 381 A.2d 565 (Conn.Super. 1977)). The court agrees that it is not appropriate for OWI to recover fees and costs associated with its work on the indemnification claim. A&A identifies a number of examples of time entries it claims are related to prosecution of the cross claim. Opposition Memorandum at 21-24. OWI concedes that it cannot recover for entries relating to the prosecution of its claim for indemnity, and it suggests in its reply memorandum (no. 165.00) that its billings be reduced by $4,898.00. It does not explain the basis for that number.

The court accepts OWI’s representation that it was paid a total of $45,399.59. Based on the court’s analysis of the time entries, it reduces this amount by $330.50 for pre-tender fees, $280.00 for post-trial fees, and $4,404.50 for work related to prosecution of the cross claim against A&A rather than defense of the claim by Mr. Henderson. Accordingly, OWI is entitled to recover defense costs of $40,384.59 on its first count.