Opinion
MMXCV176017089S
03-29-2018
Dawn M. HINTON v. The PRICE CHOPPER, INC. et al.
UNPUBLISHED OPINION
OPINION
Domnarski, J.
The plaintiff, Dawn Hinton, has sued The Price Chopper, Inc. (Price Chopper), a subsidiary of Golub Corporation (Golub), Galaxy Middletown, LLC (Galaxy), and T & S Caminito Concrete, LLC (T & S), in connection with a fall she sustained on January 18, 2015, in the parking lot of the Price Chopper supermarket located at 855 Washington Street, Middletown, Connecticut (premises). Price Chopper/Golub is a tenant of the premises, Galaxy is the owner of the premises, and T & S is a snowplowing and salting contractor that provided services to the premises. Price Chopper and Galaxy have filed a cross complaint (cross claim plaintiffs) against T & S seeking defense and indemnification in connection with the plaintiff’s claims against them. The cross claim plaintiffs have moved for summary judgment on five counts of their cross claim complaint.
The court concludes that, pursuant to a contract between T & S and Golub, T & S is required to defend Price Chopper against the plaintiff’s claims. The court also holds there are genuine issues of material fact, at this time, as to T & S’s obligation to indemnify the cross claim plaintiffs in connection to the claims made against them by the plaintiff.
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016).
" [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ... A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
The plaintiff alleged that she fell on ice and snow in the Price Chopper parking lot while walking from the parking lot to the entrance of the store. The plaintiff’s allegations of negligence against Price Chopper include permitting the parking lot and entrance to the store to remain covered with ice and snow.
It is undisputed that at the time of the subject incident there was a snowplowing and salting services contract (contract) in effect between Golub and T & S. The " scope of work" section of the contract contained the following language: " 4. Contractor shall keep pedestrian walks, parking, and drive areas ... free of snow and ice at all times ... Snow shall never exceed 2-inch accumulation at any one time. It will be the contractor’s responsibility to plow and salt as necessary to keep the described areas clear of snow and ice at all times ... 8. All salting services are included in the monthly lump price and should be carried out automatically."
The " requirements of the service contractor and employees" section of the contract provided: " 9. The contractor agrees to release, indemnify, hold harmless, and defend the Golub Corporation, its subsidiaries, and affiliates against any claim, demand, cause, or action, loss liability, or expense arising out of the work performed by the contractor under the terms of this agreement." As previously noted, it is undisputed that Price Chopper is a subsidiary of Golub.
In count three of the cross claim complaint, Price Chopper argues that, by failing to defend and indemnify Price Chopper, T & S has breached the contract. Price Chopper further argues that as a result of this breach, it had to turn this action over to its own insurance company. In their claims for relief, the cross claim plaintiffs seek the costs, expenses, and attorneys fees for the defense of the plaintiff’s action. Although not specifically stated, the court will construe count three as a claim for a defense to the plaintiff’s claims. Price Chopper asserts that it is entitled to summary judgment on this count. T & S counters that the language of the agreement is ambiguous, and further argues that there is a genuine issue of material fact as to whether T & S was negligent.
" In determining the meaning and effect of the controverted language in the lease, the inquiry must focus on the intention expressed in the lease and not on what intention existed in the minds of the parties." Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985). " Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court ... When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language ... [We] will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Citations omitted; internal quotation marks omitted.) Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 667-68, 646 A.2d 143 (1994).
In the present case, the obligations of T & S are set forth in the " scope of work" section of the contract. The contract specifically stated that T & S would defend and indemnify Golub against any claim arising out the work performed by T & S. The work of T & S included keeping the parking areas free of snow and ice at all times. The plaintiff alleges that Price Chopper was negligent because she fell on an accumulation of snow and ice in the parking lot. The court finds that the contract language regarding the defense of claims brought against Golub is unambiguous. Under the plain language of the contract, T & S has an obligation to provide a defense to the plaintiff’s claims of negligence, as it relates to an accumulation of snow and ice in the Price Chopper parking lot.
The case relied on by T & S, Messore v. Carbetta, Superior Court, judicial district of New Haven, Docket No. CV-99-0424315-S (August 21, 2000, Thompson, J.) (28 Conn. L. Rtpr. 80), is readily distinguishable. In that case, the contract language required defense and indemnification for injuries " occurring by reason of any ... negligence of [the] Contractor ..." Id. The court specifically noted that the language could not be interpreted to impose an obligation to defend by virtue of an allegation or claim of negligence alone. Id. In the present case, the contract language specifically provided that T & S agreed to defend Price Chopper from any claim arising out of its work. Price Chopper has established that there is no genuine issue of material fact pertaining to T & S’s obligation to provide a defense to the plaintiff’s claims. As discussed subsequently, Price Chopper’s claim for indemnification is premature.
In counts one and two of the cross complaint, Price Chopper seeks contract and common-law indemnification, respectively. As noted previously, in count three, Price Chopper claims that it is entitled to a defense of the plaintiff’s claim. In counts five and six, Galaxy seeks contractual and common-law indemnification, respectively. In their motion for summary judgment, the cross claim plaintiffs seek a judgment in their favor on these counts.
The obligation to defend does not automatically include the obligation to indemnify. In DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 687-88, 846 A.2d 849 (2004), our Supreme Court stated: " [T]he duty to defend is considerably broader than the duty to indemnify ... In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends on the facts established at trial and the theory under which judgment is actually entered in the case." (Citations omitted; internal quotation marks omitted.)
There is a genuine issue of material fact regarding Price Chopper’s entitlement to indemnification. The plaintiff’s complaint contains allegations of negligence which may apply to Price Chopper alone, such as failure to remedy the unsafe conditions, failure to warn, and failure to make reasonable inspection. Because the obligation to indemnify depends on facts established at trial, the issue is premature. The motion for summary judgment is denied as to counts one and two.
The cross claim plaintiffs have failed to present any evidence to establish Galaxy’s entitlement to summary judgment. Galaxy claims to be a third-party beneficiary of the contract; however, they have not submitted any affidavit or submissions to establish such a relationship. The motion for summary judgment is denied as to counts five and six.
For the foregoing reasons, judgment may enter in favor of Price Chopper as to count three; the defendant/cross claim defendant, T & S Caminito Concrete, LLC is required to defend the defendant/cross claim plaintiff The Price Chopper, Inc. in the present action.