Opinion
No. CV 01-0808756
July 14, 2005
MEMORANDUM OF DECISION ON COUNTERCLAIM DEFENDANT PREFERRED PLUMBING'S MOTION FOR SUMMARY JUDGMENT
This case arises from an accident which occurred in June 1999, at the Farmington Marriott Hotel ("Marriott"), resulting in injuries to the plaintiff, Ric Lavoie. Plaintiff, a licensed plumber employed by the counterclaim defendant Preferred Plumbing and Drain Services, LLC ("Preferred Plumbing") alleges that a discharge of water caused him to fall from a ladder, resulting in injury.
Plaintiff brought suit against Marriott in June 2001, alleging that Marriott's negligence caused the accident. Preferred Plumbing filed an intervening complaint against Marriott dated February 25, 2003, seeking the reimbursement of damages that might be recovered pursuant to the terms of Connecticut's Workers' Compensation Act, C.G.S. § 31-275 et seq. Marriott subsequently filed a counterclaim for indemnification against Preferred Plumbing which was stricken by Judge Wagner on May 14, 2004. On May 13, 2004, Marriott filed a Substituted Answer, Special Defense and Counterclaim. In the counterclaim, Marriott alleges that Preferred Plumbing and its agents had exclusive control over the situation which caused plaintiff's injuries (paragraph 8) and that Preferred Plumbing had "an independent contractual obligation and relationship with Marriott to perform their work for Marriott in a workmanlike manner with due care giving rise to a duty to indemnify Marriott" for any injuries which occurred (paragraph 10).
Preferred Plumbing filed a Motion for Summary Judgment dated January 17, 2005, to which Marriott has objected in a June 13, 2005 Memorandum of Law in Opposition. Preferred Plumbing filed a reply on June 15, 2005. Oral argument was held on June 21, 2005.
The dispositive issue raised in Preferred Plumbing's summary judgment motion is whether an independent legal relationship existed between Marriott and Preferred Plumbing. Preferred Plumbing argues that no such independent legal relationship existed and that pursuant to Ferryman v. Groton, 212 Conn. 138 (1989) and related cases its motion for summary judgment must be granted. Preferred Plumbing contends it is shielded from liability by C.G.S. § 31-284's exclusive remedy provisions. Marriott argues that an independent legal relationship existed and that the motion should be denied.
After considering the arguments in light of the full record, the Court concludes that the motion should be granted.
In deciding a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party; the party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact; and the party opposing summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book Section 17-49; Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998).
The governing legal principles relating to the pending motion are set out in Ferryman, where the court stated as follows, quoting from 2 A A. Larson, Workmen's Compensation Law § 76:
When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless, or a bailee's obligation to indemnify a bailor, or a contractor's obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a `primary' wrongdoer impliedly promises to indemnify a `secondary' wrongdoer, the great majority of jurisdictions disallow this claim.
See Judge DiPentima's decision in Lombardo v. Timex Corporation, 2002 Ct.Sup. 6075 (May 14, 2002), in which she characterized the holding in Ferryman as follows:
Specifically, the Ferryman court, in the context of a motion to strike, found that if there is an independent relationship between the defendant/third-party plaintiff and the employer that goes beyond the active/passive negligence of Kaplan v. Merberg Wrecking Corporation, 142 Conn. 405 (1965), the third-party complaint for indemnification should be allowed . . . Both Skuzinski and Ferryman are clear that such allegations [of active/passive negligence] are not sufficient to overcome the exclusivity of workers' compensation.
See also the Supreme Court's decision in Skuzinski v. Bourchard Fuels, 240 Conn. 694, 699 (1997), reaffirming the decision in Ferryman.
In opposing the pending motion for summary judgment, Marriott points to deposition testimony of Colin Goldman, owner and partner of Preferred Plumbing; Matt Annito, a former employee of Marriott; and Yipei Lee, a Marriott employee. However, nothing in these excerpts supports Marriott's claim that an independent legal duty existed between Preferred Plumbing and Marriott.
The Court has relied upon the following edited excepts from the depositions of Colin Goldman, Matt Annito and Yipei Lee, as well as the full record, in reaching its decision:
COLIN GOLDMAN, having first been duly sworn by the Notary Public to tell the whole truth and nothing but the truth, deposes and says as follows: DIRECT EXAMINATION BY MR. PRYOR:
Q. Good morning, Mr. Goldman.
A. Good morning
Q. I'm J. Pryor. I represent Ric Lavoie in an action against the Marriott in Farmington. Have you ever been deposed before?
A. No.
Q. You didn't have any written contract with them other than just the terms and conditions of the invoice; is that correct?
A. That's correct.
Q. And you said there was no contract that was in place; correct?
A. Correct.
Q. It's not like you sat down with them and said, Look, here is the contract, we have our contractor sign this contract; is that correct?
A. That's correct.
Q. All right. Basically would they tell you the job that needed to be done and then rely upon you to complete the job according to what needed to be done?
A. Yeah.
Q. All right. Did you agree with them that as long as you pay me, I'll do the job in a workman-like fashion?
A. Yeah, that's the idea.
Q. Okay. Your job was to come and do the repairs in a workmanlike fashion and their responsibility was to pay you for your work; correct?
A. Correct . . .
CROSS EXAMINATION BY MS. PORTO:
Q. Are you still one of the contractors that the Marriott uses today for plumbing?
A. Yes, I am.
Q. Okay. And after the incident in June of 1999, other than the invoices that counsel marked as Defendants' Exhibit D, have you entered into any other contracts or agreements with the Marriott?
A. No, the same.
Q. Okay. And other than those invoices, you've testified that there's no written contracts between Preferred Plumbing and the Marriott. Did any person in management of the Marriott, including Matt Annitto, I think you told me what his name was, ever discuss with you verbally a verbal agreement that you would, you meaning Preferred Plumbing, would indemnify the Marriott if a lawsuit was ever brought against them for a personal injury?
A. No.
Q. And is your only contact person at the Marriott Matt Annitto and Yipei Lee, those two?
A. Currently?
Q. In 1999.
A. Yes.
Q. You never dealt with anybody else in management there other than those two?
A. That is correct.
Q. Okay. And when you started working for the Marriott — exclusively for Preferred Plumbing, was that in 1996 after you left Roto Rooter?
A. Yes.
* * * * MATT ANNITO, Deponent, having been first duly sworn, was examined and deposed as follows:
DIRECT EXAMINATION BY MS. PORTO:
Q. Prior to Preferred Plumbing coming on site to do work that needed to be done at the Farmington Marriott, did the Marriott and Preferred Plumbing ever enter into any written agreement or contract for work to be performed? And I'm speaking generally right now.
A. I don't recall that there was any agreement. There could have been on contract-type work. Typically, for service it was I need you here in an hour to do it.
Q. And would Preferred Plumbing then submit invoices for the work that they performed?
A. Yes.
Q. Are you aware, as you sit here today, of any specific agreement or written contract with Preferred Plumbing and the Marriott for the work that was to be done in June of 1999?
MR. GREEN: Object to the form.
You can answer.
THE WITNESS: I don't know if there was one for that particular work.
Q. As you sit here today, do you have any knowledge of a specific written agreement or contract whereby Preferred Plumbing agreed to indemnify, reimburse or defend the Marriott for any losses or injuries from a Preferred Plumbing employee that occurred on the Marriott's premises?
A. No, I don't have any knowledge of that.
Q. Did you ever have any specific discussions with Colin Goldman of Preferred Plumbing that they would agree to indemnify the Marriott for any losses that they sustained arising out of any injuries that occurred to a Preferred Plumbing employee?
A. No, I had no conversation regarding that.
Q. Did you ever have a conversation with Mr. Goldman specifically in June of 1999 whereby he agreed to perform the work that was to be done at the Marriott in a workman-like manner?
A. It was understood. That's how any subcontractor would do the work.
Q. But did you ever have a specific, oral conversation with him whereby he agreed to perform the work in a workman-like manner, and if any injury happened on site that Preferred Plumbing would be responsible for indemnifying the Marriott?
A. No. No conversation in that type of detail . . .
Q. And there's no written agreement that you can recall that Colin Goldman or Preferred Plumbing entered into with the Marriott?
A. No. I don't recall.
Q. And the only other person besides yourself that would probably deal with those contracts would have been Yipei Lee?
A. Right. Like I said, there's many people that would call them in, but as far as contracts, you would typically go through our office.
CROSS-EXAMINATION BY MR. GREENE: Q. (By Mr. Greene) When the Marriott would hire Preferred Plumbing in 1999, including the time period of this incident, was it expected from your standpoint as director of engineering that Preferred Plumbing would perform the work that they had agreed to perform for the Marriott in a workman-like manner?
MS. PORTO: Object to the form.
THE WITNESS: Yes. That was the expectation.
Q. (By Mr. Greene) Explain that. Why do you say that was an expectation?
A. The Marriott is an upper-tier hotel chain, and though management you're always trying to give the customer the best. And at that point I — because, really, whoever I hired was a reflection on me, so I expected them to perform a duty that was over and above what I expected of them, and that goes with, I think, every department in there. They were framed to do that if you had a subcontractor or vendor that was subpar, they would not be used.
Q. And as director of engineering, would you ever hire a subcontractor to perform work on the Marriott premises and not expect that they were going to do the work in a workman-like manner or at last attempt to do the work in a workman-like manner?
A. No.
Q. As director of engineering in 1999, when you would hire Preferred Plumbing to perform plumbing work on the premises, was it expected from the standpoint of the Marriott that Preferred Plumbing would perform that work with due care?
MS. PORTO: Object to the form.
Q. (By Mr. Greene) You can answer.
A. Yes.
Q. Along those same lines, was it expected engineering department or any other department of the Marriott, would they ever direct the Preferred Plumbing employees in how to do the plumbing work on the site at the Farmington Marriott?
A. No.
MR. GREENE: I don't have any other questions.
REDIRECT EXAMINATION BY MS. PORTO: Q. (By Ms. Porto) I just have a couple follow-up questions.
A. Sure.
Q. You testified that there was an expectation on the part of Preferred Plumbing to perform their work in a workman-like manner. Even if there was that expectation, was there any agreement if that expectation was failed by Preferred Plumbing for them then to indemnify the Marriott for any losses it may have sustained as a result of injuries to a Preferred Plumbing employee that you're aware of?
A. No, not that I'm aware of.
Q. And in the past, you just testified, that Preferred Plumbing would probably come to the Marriott to do work once a month. At any time did you ever enter into an agreement or contract with Preferred Plumbing for indemnification if any of Preferred Plumbing's employees were injured on Marriott's premises?
A. I answer that from 1999.
Q. Correct. 1999 going back to when you began working with Preferred Plumbing, though.
A. I don't recall. I don't recall whether there was any document on service work, nor do I think there was anything on contract work. It was generally service work with Colin.
Q. Again, the only the two people that would have the authority to enter into those kinds of agreements would be either yourself or Yipei Lee then?
A. Yes.
MS. PORTO: Nothing further
YIPEI LEE, having first been duly sworn, deposed and testified as follows:
DIRECT EXAMINATION BY MR. BEAUDOIN:
Q. Good morning. For the record, my name is Gerry Beaudoin and I am an attorney representing Ric Lavoie in this matter, and we are here to take your deposition.
A. Okay.
Q. Mr. Lee, before we start, could you state your name and address for the record?
A. First name, Yipei. Last name Lee, live on 40 Queen Street, New Britain, Connecticut.
Q. How do you spell Yipei?
A. The same way. Y-I-P-E-I.
CROSS-EXAMINATION BY MS. STABNICK:
Q. I just have a few questions. I'll be very brief. Mr. Lee, my name is Courtney Stabnick and I represent Preferred Plumbing. I just wanted to clarify. You said you personally called Preferred Plumbing on June 21 about the pipe problem at the Marriott?
A. I did place a service call, but whatever the date is I don't recall.
Q. All right. Do you know who you spoke with?
A. No, I don't.
Q. And do you know what — sorry, did you just generally discuss the problem, it being a clog or a leak or whatever?
A. Yes.
Q. Did you discuss anything else during that conversation?
A. No. I don't recall.
Q. At the time of Mr. Lavoie's accident on June 22, '99, was there a written contract in effect between Marriott and Preferred Plumbing for the work that was being done that day?
A. No.
Q. Okay. I think you also testified that sometimes you would get an invoice or a work order and that sometimes some vendors used it as a proposal; is that correct?
A. Yes.
Q. Do you know if Preferred Plumbing used that as a proposal on this day?
A. I don't recall that.
Q. As the chief engineer in the maintenance department did you have occasion to read those invoices or work orders that Preferred Plumbing would prepare on a regular basis or from time to time?
A. Sometimes I don't read the details of it. I kind of know. I don't believe that the vendor will cheat me out of an invoice. I looked at it. As long as briefly the job description is described within that area, I just approve it.
Q. Okay. So as far as you know is it fair to say that the only oral agreement between Marriott and Preferred Plumbing on June 22, 1999, the date of Mr. Lavoie's injury, was simply the phone call that you had made asking somebody to come out and fix whatever problem was at the Marriott?
A. Yes.
Q. Okay. During your phone call did you discuss any oral obligation on the part of Preferred Plumbing to indemnify, reimburse or defend Marriott for any personal losses or physical injuries that could potentially be sustained by Marriott or by Preferred Plumbing employees?
A. No.
Q. And again, it's your position there was no written contract for any work that was being done that day?
A. No.
Colin Goldman stated, inter alia, that there was no written contract other than the written terms of the invoice. He replied "Yeah, that's the idea," when asked: "Basically would they tell you the job that needed to be done and then rely upon you to complete the job according to what needed to be done?" He also replied "Correct" when asked: "Your job was to come and do the repairs in a workmanlike fashion and their responsibility was to pay you for your work; correct?" Such responses to leading questions do not suffice to establish an independent legal relationship.
Matt Annito's deposition testimony does not establish such a relationship either. He answered "Yes, that was the expectation," when asked: ". . . was it expected from your standpoint as director of engineering that Preferred Plumbing would perform the work they had agreed to perform for Marriott in a workmanlike-like manner?" He also testified that he expected Preferred Plumbing to perform all work with "due care." Once again, these answers and others provided by Mr. Annito are in the realm of expectation, not evidence of a concrete independent legal relationship.
The Court agrees with Preferred Plumbing's argument that an employer's expectation that work will be performed in a workmanlike manner with due care is insufficient to create an independent legal duty. Presumably, all employers expect their employees to perform their work in a workmanlike way and with due care. If such mere expectations were transmogrified into independent legal duties, the general rule of Ferryman would be substantially vitiated and the exclusivity principle embodied in § 31-284 would be undermined. Nor do the expectations of agents of Marriott create an independent legal duty. Ferryman and subsequent cases require something more concrete than expectations to bring an independent legal duty into existence given the importance of the exclusive remedy provision of § 31-284.
Judge DiPentima in the above-cited Lombardo case, and Judge Corradino in the case of Scrivenes v. Pepperidge Farm, 1997 Ct. Sup. 33 (January 10, 1997) ( 18 Conn. L. Rptr. 426), discussed similar issues.
In Lombardo, as in this case, plaintiff was an employee of a third-party defendant and was injured in a fall from a ladder while working at defendant's property. In granting a motion for summary judgment as to the first count of the complaint, Judge DiPentima stated:
The first count of the third-party complaint alleges no such independent legal relationship between Timex and Lippincott and simply alleges active/passive negligence. Both Skuzinski and Ferryman are clear that such allegations are not sufficient to overcome the exclusivity of workers' compensation. See, e.g., Skuzinksi v. Bouchard Fuels, Inc., supra 240 Conn. 699 ('In view of the exclusivity of workers' compensation relief, indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship.') The court does not find any such relationship exists solely on the fact that Timex hired Lippincott to move its overhead conveyor system. None of Timex's submissions supports inferring such a relationship outside of the express language alluded to in count two.
In Scrivenes, Judge Corradino, in the procedural context of a motion to strike, stated as follows:
The first count refers to the complaint brought by the plaintiff against Pepperidge Farm for injuries he suffered in a fall. It then refers to the complaint Pepperidge Farm brought against Vic Insulation for indemnification in which it alleges Vic Insulation agreed to remove asbestos from the Pepperidge Farm worksite. Paragraph 4 then alleges Vic Insulation subsequently entered into an agreement with Petco Insulation `to perform all work and remove asbestos' from the worksite area. Petco has appended to its motion to strike the contract Pepperidge Farm had with Vic Insulation which explicitly provided for indemnification. Petco then notes that no such written or oral agreement is alleged between Vic Insulation and Petco. The difficulty with this argument is that it really does not appear to focus on the actual argument Vic Insulation is making under the Ferryman — Larson analysis. The first count does in fact allege that there did exist an agreement between Vic Insulation and Petco that the latter would perform the work it contracted for with the former `in a manner consistent with first class workmanship.' What Vic Insulation is attempting to do is take advantage of that language in Ferryman quoting from Larson which states that an employer cannot avoid a claim such as this if in fact it breached an independent duty it had to a third party (here, Vic Insulation) such as `a contractor's obligation to perform his (sic) work with due care.' What in fact does that language mean? It would seem that if an employer contractor or subcontractor explicitly agreed to have work perform its work with due care — that is with regard to ensuring safety at the worksite — then failure to so perform its contract would allow the entity for whom the work is done and who is sued by the general's or sub's injured employee to implead the employer, if the employee claims injury as a result of the work not being done with due care. With such an explicit contractual agreement, the party whom the injured employee sues for negligence should be able to implead the employer and in effect say, you, the employer, agreed with me to do the work safely and with due care. You didn't live up to your end of the bargain and your lack of due care was what caused injury to your worker, not anything I did.
The problem with the language of this first count, however, is that as presently framed it cannot take advantage of such an argument. It does not claim there was an agreement between Vic Insulation and Petco that Petco perform its contract with `due care.' It explicitly claims that Petco agreed to do the work of asbestos removal `in a manner consistent with first class workmanship.' That is, it is an agreement that the asbestos will be effectively removed and perhaps in a manner so as not to interfere with the appearance of the building being worked on or its operation. The agreement that the job be done in a workmanlike manner does not necessarily imply that it be done in a safe manner or with due care. The underlying complaint against Pepperidge Farm, which is referenced in this third-party complaint, alleges various acts of negligence which caused the accident (par. 10). All of the allegations have nothing to do with whether asbestos was or was not removed in a workmanlike manner but only to do with allegations about slippery working conditions, inadequate lighting, failure to put warning signs concerning those conditions. Thus, the language of the Vic Insulation third-party complaint now before the court does not allege that the due care obligation referenced in Ferryman was explicitly assumed by Petco toward Vic Insulation. Even if the court's view is incorrect and the language is ambiguous on this point, given the policy behind the Workers' Compensation Act, this ambiguity should not suffice to withstand a motion to strike.
This is especially so because of the policy considerations behind the act. Whenever contractors or subcontractors agree to do a particular job, even if language such as the job must be done in a workmanlike manner is not included, there in fact must be a contractual understanding that the agreed upon work be done in that manner. If language like `workmanlike manner' or that the job be completed `to comply with industry standards.' could remove the protections of the act for these contractor's when one of its employees is injured, what real protection would the act provide. Contractors would in effect be compelled to run the risk of waiving their protection under the act merely because of the inclusion of a contract provision that created no real independent obligation explicitly referencing the act but only defined a contractual commitment it was already assuming when it agreed to do a specific job.
If Vic Insulation is to avoid the strong public policy requirements of the Workers' Compensation Act it must explicitly allege that there was an agreement between Vic and Petco that Petco would perform this job in a safe manner and with due care and that that was part of its understanding with Petco. Such an allegation cannot be left to surmise or conjecture by the use of ambiguous language, e.g. workmanlike manner, when the strictures of the act are sought to be avoided and Amodio v. Cunningham, supra, should not be read to dictate any other result. The first count is stricken. (Emphasis added.)
Review of the cases cited by Marriott, including Judge Thim's decision denying a motion for summary judgment in Marsh v. BD Molded Products, Inc., No. CV 99367627S (December 7, 2001) ( 30 Conn. L. Rptr. 739), does not alter the Court's conclusion. Marsh is distinguishable on its facts. In Marsh, a company had serviced a furnace for a period of years. Judge Thim concluded that the contractual relationship between the parties created an independent legal duty in light of the fact that it was foreseeable that if the service to the furnace was not performed with due care, injuries of the type suffered by the plaintiff could occur.
Conclusion
There is nothing in the record from which it can be concluded that an independent legal duty existed between Preferred Plumbing and Marriott that would contravene the exclusivity principle. There is nothing in the record from which the Court can conclude that the employer agreed to perform the work in a safe manner such as to avoid operation of that principle. The motion for summary judgment is therefore granted.
Douglas S. Lavine Judge, Superior Court