Opinion
No. CV065001264
January 25, 2007
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (#117, 119 120 129)
The issue is whether the court should grant the motions to strike in these consolidated matters.
These two negligence actions both arise out of a pedestrian/motor vehicle accident that occurred on January 28, 2004. In both actions, the plaintiff, Cecile Lawrence, alleges that she was hit by a motor vehicle that was being operated by in a negligent manner by David J. Davidowski (Davidowski) while she was in a pedestrian walkway. In the first action, Lawrence v. University of Bridgeport, Superior Court judicial district of Fairfield, Docket No. CV 06 5001009, the plaintiff alleges that Davidowski's negligent operation of the vehicle caused the accident, and that the University of Bridgeport (University) is liable for Davidowski's conduct in that it owned the vehicle and Davidowski was using the vehicle with its permission. In the second action, Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264, Lawrence alleges that Sodexho, Inc. (Sodexho) is liable for Davidowski's negligent operation of the vehicle in that it owned the vehicle and Davidowski had Sodexho's permission to use it. Although the actions were consolidated for trial as of May 15, 2006, the pertinent portions of their procedural histories will be discussed separately for purposes of addressing the motions to strike that are before the court.
A motion to strike is a proper method to challenge the legal sufficiency of one or more counts of a complaint. See Practice Book § 10-39; Violano v. Fernandez, 280 Conn. 310, 317, 907 A.2d 1188 (2006). "In deciding a motion to strike, the trial court must take the facts to be those alleged in the complaint . . . and cannot be aided by the assumption of any facts not therein alleged." (Internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). Moreover, "[a] motion to strike does not admit legal conclusions or the truth or accuracy of opinions stated in the pleading." (Emphasis in original; internal quotation marks omitted.) CT Page 1654 Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[I]t facts provable in the complaint would support a cause of action the motion to strike must be denied." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
The plaintiff commenced the first action against the University and Davidowski on December 8, 2005. On January 13, 2006, the plaintiff's employer, Securitas Security Services, USA (Securitas) filed a motion to intervene in the action as a plaintiff, to which it attached its proposed intervening complaint. Securitas asserted that it should be allowed to intervene because the plaintiff's injuries arose out of and were incurred in the course of her employment, it is a subscriber to the Workers' Compensation Act and, to the extent that the plaintiff recovers any damages, it is entitled to recover the money it has and will be obligated to pay to or on behalf of the plaintiff under the Act. The court, Ford, J., granted the motion on January 31, 2006, and, on February 8, 2006, Securitas formally filed its intervening complaint, which, except for the date thereon, is identical to its proposed intervening complaint.
On April 17, 2006, the University filed a motion to implead Sodexho Operations, LLC (Sodexho Operations) as a defendant in the action pursuant to Practice Book § 10-11, on the ground that Sodexho Operations may be liable to the University for the plaintiff's claims. It contended that Sodexho Operations is responsible for Davidowski's conduct because, at the time of the incident, he was employed by that entity and was acting in the course and scope of his employment. Further, the University asserted that it entered into a contract with Sodexho Operations in which that entity agreed, inter alia, to defend and indemnify the University for the negligence of Sodexho Operations' employees in performing Sodexho Operations' obligations under the contract. On May 8, 2006, the court, Cocco, J., granted the motion, and, on May 30, the University's third party contractual indemnification complaint against Sodexho Operations, which includes a paragraph stating that Securitas had already intervened in the action, was served on Sodexho Operations.
According to Sodexho Operations, it is a separate entity from Sodexho, Inc., the named defendant in the second action.
On June 2, 2006, the plaintiff filed a pleading entitled "Cross-Complaint." She alleges therein that she was filing the pleading in light of the University's "apportionment complaint," and that the negligence of Sodexho Operations, in addition to that of the University and Davidowski, caused her injuries in that Davidowski was the permissive user of a vehicle owned by Sodexho Operations at the time of the accident. On July 3, 2006, Sodexho Operations filed a motion to strike (No. 117) the plaintiff's "cross-complaint." The plaintiff has not filed an objection to this motion.
On July 6, 2006, Securitas filed a notice in which it stated that, on July 5, 2006, it had served notice on Sodexho Operations of its previously filed intervening complaint, to which it attached a copy of the intervening complaint that it filed on February 8, 2006. On July 14, 2006, Sodexho Operations filed a motion to strike (No. 119) Securitas' intervening complaint "dated July 5, 2006," on the ground that it was not timely filed. Securitas filed an objection to the motion on August 14, 2006 (No. 127 in second action).
Because Securitas listed the docket number for the second action on its objection, it is filed under that action.
Sodexho Operations moves to strike the plaintiff's "cross complaint" on the ground that it is premised on the existence of a pleading that does not exist, i.e., the University's "apportionment complaint," and that the plaintiff therefore lacks statutory authority to assert a claim against Sodexho Operations pursuant to subsection (d) of General Statutes § 52-102b, which is the apportionment statute.
As a preliminary matter, it is noted that the plaintiff's pleading is not a cross complaint, inasmuch as, pursuant to our rules of practice, a cross complaint is a pleading that a party files against a co-party. See Practice Book § 10-10. In this pleading, the plaintiff alleges a claim of negligence against Sodexho Operations as a third-party defendant in the action premised on her allegations that it is liable for the conduct of Davidowski. As the Appellate Court has stated, "the construction of a pleading is a question ultimately for the court . . . When a case requires [the] court to determine the nature of a pleading filed by a party, [the court is] not required to accept the label affixed to that pleading by the party." (Internal quotation marks omitted.) Drahan v. Board of Education, 42 Conn.App. 480, 489, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).
This principle also applies to Sodexho Operations' argument that the court should strike this pleading because the plaintiff alleges therein that she filed it "in light of" the University of Bridgeport's "apportionment complaint," and no such complaint exists. The plaintiff's mislabeling of the University's third party indemnification complaint against Sodexho Operations is not determinative of her right to file her claim against this third party defendant. According to the provisions that govern impleader actions, after a defendant files a third-party complaint against the third-party defendant, the plaintiff "may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint . . ." General Statutes § 52-102a(c) and Practice Book § CT Page 1656 10-11(b).
Here, the University made Sodexho Operations a third party defendant in the action pursuant to its motion to implead and its third-party complaint, and the plaintiff's negligence claim against that entity arises out of the same accident that is the basis for her original complaint against the University and Davidowski. Therefore, she has a right to assert this claim. See Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 143-44, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000). Therefore, it is submitted that the court should deny Sodexho Operations' motion to strike the plaintiff's "cross complaint."
Sodexho Operations moves to strike Securitas' intervening complaint on two grounds: Securitas did not file it within thirty days of the date it received notice of the plaintiff's claim, as required by General Statutes § 31-293(a); and the intervening complaint does not state a cause of action upon which relief can be granted because Sodexho Operations is not the actual tortfeasor in this action. Securitas objects to the motion on both procedural and substantive grounds. Procedurally, Securitas argues that Sodexho Operations is improperly using a motion to strike to contest the timeliness of its intervening complaint because that issue cannot be decided on the basis of the allegations set forth in the complaint, but depends instead on facts that fall outside of the pleadings. Substantively, Securitas argues that it has pleaded adequate facts to support its claim for reimbursement under § 31-293(a). It also points out that when it served its notice of intervention on July 5, 2006, it had already intervened in the action by virtue of the intervening complaint that it filed in February 2006.
Further, it contends that Sodexho Operations does not have standing to challenge the intervening complaint because, in that pleading, Securitas is only seeking reimbursement from the damages, if any, that the plaintiff recovers from the defendants. Thus, according to Securitas, its claim has no impact on Sodexho Operations. The Supreme Court rejected a similar argument in Richard v. Stanadyne, 181 Conn. 321, 322, 435 A.2d 352 (1980). In addition, Securitas contends that it is a party with an automatic lien right in the action under General Statutes § 31-293(a), which it has perfected by service of its written notice of its lien on Sodexho Operations.
General Statutes § 31-293(a) "provides that when an employee has become injured and is entitled to seek damages from a third-party, an employer who has paid or has become obligated to pay workers' compensation benefits to that employee may seek reimbursement from the third party in one of two ways. First, the employer may bring an action directly against the tortfeasor. Second, it may join in an action commenced by the employee. If either an employer or an employee commences an action against the tortfeasor, that party must notify the other that the action has been filed and must provide the other with the name of the court to which the action is returnable. Upon receipt of proper notice, an employer or employee has thirty days within which to join the action; failure to do so results in the abatement of that party's right of action." Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 163-64, 716 A.2d 71 (1998). As to Securitas' procedural argument, it is noted that, as a general rule, the issue of the timeliness of a claim should not be decided in the context of a motion to strike. See Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). The courts will, however, consider the issue in this context where, as in this case, "a statute creating the cause of action on which the [pleading party] relies fixes the time within which the cause of action must be asserted . . ." Id. As our Supreme Court has stated, "an employer's right to obtain reimbursement from a third party tortfeasor is a statutory claim that is derived in its entirety from § 31-293 (a)"; (internal quotation marks omitted) Nichols v. Lighthouse Restaurant, Inc., supra, 246 Conn. 164; and the statute clearly sets a time limit on intervening complaints.
General Statues § 31-293(a) provides in relevant part: "When any injury for which compensation is payable under the provisions of [the Workers' Compensation Act], has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of [becoming a subscriber to the Act], a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury, and any employer . . . having paid, or having become obligated to pay compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee [or] the employer . . . brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate . . . The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section."
In Worsham v. Greifenberger, 242 Conn. 432, 444, 698 A.2d 867 (1997), the court held that in order to satisfy the requirements of due process, "the notice must [also] include a notice that the recipient's right to bring an action against the third-party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within thirty day of such notification."
Whether the court considers the issue according to the standards for a motion to strike, a motion to dismiss or a motion for summary judgment is immaterial because the question of whether Securitas' intervention in the action was timely under § 31-293(a) is dependent upon specific facts, and neither party has alleged the relevant facts or provided the court with any evidence thereof.
Assuming without deciding that Securitas was required to file a second intervening complaint within thirty days of its receipt of notice that the plaintiff had asserted a claim against Sodexho, the relevant facts are whether the plaintiff sent the required notice to Securitas and the date on which she did so. As to this issue, in its intervening complaint, Securitas merely states that "[t]he plaintiff . . . has instituted an action known as a third party action under the terms of . . . [§ 31-293, entitled Cecile Lawrence v. University of Bridgeport and David Davidowski, returnable January 10, 2006 in the Superior Court, Judicial District of Fairfield/Bridgeport at Bridgeport to recover damages [for] which the named defendant is alleged to be legally liable." Sodexho's argument that the thirty-day period began to run on either May 8, 2006, the date on which the court granted the University's motion to implead Sodexho Operations, or May 15, 2006, the date that the court granted the plaintiff's motion to consolidate this action with her second action against Sodexho, Inc., which it identifies as a separate entity, is contrary to the holding of the Supreme Court in Gurliacci v. Meyer, 218 Conn. 531, 590 A.2d 914 (1991). In that case, the plaintiff initially alleged claims against both her employer and the alleged tortfeasor. The court subsequently granted the employer's motion to strike all of the plaintiff's claims against it, "thereby eliminating [it] as a defendant." Id., 538. Three years later, the employer filed a motion to intervene, "claiming that it was not barred by the thirty day time limitation of § 31-293(a) because it had never received formal statutory notice of the commencement of the action." Id., 577. The trial court granted the motion to intervene and denied the plaintiff's motion to dismiss the intervening complaint.
On appeal, the plaintiff argued that trial court improperly granted the motion to intervene because the employer and the tortfeasor had the same attorney, and the employer thus had imputed knowledge of the action. The Supreme Court disagreed on the basis of its determination that "[a]n employer who does not receive statutory notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of time which this statute prescribes, because, until notice is given, the time does not begin to run . . . It is undisputed that the plaintiff did not give [the employer] statutory notice of the third party action against [the tortfeasor] . . . Section 31-293(a) provides for no [imputed notice] exception.
"Section 31-293(a) states that `[i]f either such an employee or employer brings such an action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable.' The statute also provides that `[t]he bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section.' . . . If filing of the action against the employer is insufficient notice to satisfy § 31-293(a), then filing of such an action against a third party who has the same attorney as the employer is likewise insufficient notice." Gurliacci v. Meyer, supra, 218 Conn. 578-79.
Pursuant to this reasoning, neither Securitas' knowledge that the University had filed a third-party complaint against Sodexho Operations, nor its knowledge that this action was consolidated for purposes of trial with the second action, to which Sodexho Operations was not a party, constitute sufficient notice to Securitas that the plaintiff had brought an action against Sodexho Operations. As the Supreme Court stated, "[t]he notice requirements are clearly set forth in § 31-293(a), and the plaintiff did not comply with these requirements . . . On the facts presented here, we decline the plaintiff's invitation to whittle out an exception to the notice requirements, contrary to the clear legislative intent." Gurliacci v. Meyer, supra, 218 Conn. 579. Sodexho Operations also argues that the court should strike Securitas' intervening complaint on the ground that it fails to state a cause of action because Sodexho Operations is not an actual tortfeasor under the statute and Securitas cannot therefore assert a claim against it. This argument is based on Sodexho Operations' contention that it is a party to the action "by virtue" of the University's contractual indemnification claim against it. This argument is not well founded. It does not take into account that Sodexho Operations is also a party to the action pursuant to the plaintiff's "cross complaint" in which she alleges that, at the time of the accident, Davidowski was the permissive user of a motor vehicle owned by Sodexho Operations.
Moreover, neither of the documents that Sodexho relies upon complies with the due process requirement set out by the court in Worsham v. Greifenberger, supra, 242 Conn. 444. See footnote 4.
By its terms, § 31-293(a) permits an employer to intervene in actions that an employee brings against a third person when the employee has sustained compensable injuries "in circumstances creating in a third person . . . a legal liability to pay damages for the injury . . ." Thus, the statute does not, by its language, provide that employers can only intervene in actions against actual tortfeasors. In two of the cases that Sodexho Operations relies on for its argument, the Supreme Court has held that § 31-293(a) does not provide an employer with the right to intervene in its employee's breach of contract action against the employee's own uninsured motorist insurance provider in a claim regarding a work-related accident; Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 383, 698 A.2d 859 (1997); or in its employee's legal malpractice action against the attorneys and the law firm that he hired to represent him in connection with a motor vehicle accident in which he suffered compensable injuries. Goodyear v. Discala, 269 Conn. 507, 849 A.2d 791 (2004). In the latter case, the court determined that the plaintiff's employer did not have a right to intervene in the action because the term "injury" as used in the statute "refers to a work-related harm"; Goodyear v. Discala, supra, 269 Conn. 514; and "does not encompass the injury alleged by the plaintiff in his legal malpractice action . . . Id., 515. The court explained that the phrase "third person other than the employer [with] a legal liability to pay damages for the injury" as used in § 31-293(a) "is the person in whom a legal liability has been created to pay damages for the employee's work-related injury." Goodyear v. Discala, supra, 269 Conn. 516. Clearly, the plaintiff's legal malpractice injuries in that case did not arise out of his employment, therefore the defendants did not qualify as third persons with a legal liability to pay for his work-related injuries.
The court then added the particular language that Sodexho Operations relies upon, stating, "[o]ur case law, particularly Dodd v. Middlesex Assurance Co., [ supra] . . . supports the view that the terms "third party" and "third person," in the context of § 31-293(a) refer to the actual tortfeasor who caused the work-related injury." Goodyear v. Discala, supra, 269 Conn. 516. It appears to have added this language to emphasize that although the defendants were responsible for the plaintiff's inability to file an action against the actual tortfeasor, they were not the ones who actually caused his work-related injury.
The position of the defendants in Goodyear and Dodd are distinguishable from those of Sodexho Operations here. Specifically, those defendants were not legally liable for the plaintiff's work-related injury. On the other hand, if, as the plaintiff alleges, Sodexho Operations owns the car that Davidowski was operating at the time of the accident, it is potentially liable to the plaintiff under General Statutes § 52-183. That statute provides in relevant part: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment."
Sodexho Operations does not cite to any cases in which a court has expressly held that a party who is liable for an employee's compensable injuries pursuant to § 52-183 is not a "third person . . . [with] a legal liability to pay damages for the injury" under § 31-293(a). In several cases, courts have considered employer and employee rights to intervene in such actions against actual tortfeasors and the parties that owned the car that the tortfeasor was operating without mentioning the question of whether the intervenor had standing to intervene as to the party who was not the actual tortfeasor. See e.g., Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 829 A.2d 818 (2003) (employer intervened in employee's action against tortfeasor and owner of vehicle tortfeasor was operating); and Worsham v. Greifenberger, supra, 242 Conn. 432 (employee intervened in employer's action against tortfeasor and owner of vehicle tortfeasor was operating). At this stage of the proceedings, Sodexho Operations qualifies as a "person" which may have "a legal liability to pay damages for the [plaintiff's work-related] injury . . ." General Statutes § 31-293(a).
Sodexho Operations' motion to strike Securitas' intervening complaint is denied.
The plaintiff commenced the second action against Sodexho, Inc. on January 26, 2006. Sodexho filed an answer in which it denies that it is the owner of the vehicle that Davidowski was operating at the time of the accident, and denies that it was negligent.
On July 6, 2006, Securitas filed a notice of intervention and an intervening complaint pursuant to § 31-293, on the same basis that it intervened in the first action. On July 17, 2006, Sodexho filed a motion to strike Securitas' intervening complaint. Securitas filed an objection to the motion.
On June 26, 2006, Sodexho filed an apportionment complaint against the University pursuant to General Statutes §§ 52-102b and 52-172h, in which it alleges that the University owned the vehicle at issue and that Davidowski was the permissive user thereof, and was acting as the University's agent. Accordingly, Sodexho alleges that, if the plaintiff was injured, her injuries were caused by the negligence of the University. On July 27, 2006, the University filed a motion to strike Sodexho's apportionment complaint. Although Sodexho did not object to this motion, it subsequently filed a cross complaint against the University in which it seeks indemnification from that entity for the plaintiff's injuries on the same ground that it sought apportionment, and on the basis of a management agreement that it had with the University. The University filed a motion to strike the cross complaint, and Sodexho filed an objection thereto.
Sodexho moves to strike Securitas' intervening complaint on the grounds that it was not filed pursuant to a motion to intervene via a notice to do so, and that it was not timely filed in that Securitas did not file it within thirty days of the date that it received notice of the action, which date it argues, is February 28, 2006, as that is the return date of the plaintiff's complaint. Securitas argues in opposition that its complaint complies with the requirements for pleading a claim under § 31-293.
Sodexho's first contention was rejected by the Appellate Court in Hallenbeck v. St. Mark the Evangelist Corp., 29 Conn.App. 618, 624, 616 A.2d 1170 (1992), in which the court observed, "§ 31-293(a) does not expressly predicate an employer's right to intervene upon the making of a motion, and we decline . . . to read such a requirement into § 31-293(a)." "[A] motion is not . . . the sole pleading that may be employed to effectuate the intervention . . . The notice [that intervention is being asserted] is provided by the `Intervening Complaint' and `Intervention' used by the [plaintiff's employer] in this case, and those pleadings are thus permissible." Id., 626-27. Securitas' notice and intervening complaint also provided Sodexho with adequate notice that Securitas was asserting intervention.
The issue of whether Securitas' intervention was timely cannot be decided because neither the pleadings nor the record provide any evidence of whether the plaintiff provided Securitas with the notice required by § 31-293(a), and, if so, the date on which she complied with this requirement. The same reasoning that was applied to the first ground for Sodexho Operations' motion to strike Securitas' intervening complaint in the first action applies to this issue.
Sodexho's motion to strike Securitas' intervening complaint is denied.
In count one of its cross complaint for indemnification, Sodexho alleges that the University owned the vehicle that Davidowski was operating, that the University had control over the maintenance and use of the vehicle, and that Davidowski was operating it with the University's permission. In count two, Sodexho alleges that it entered into a management agreement with the University pursuant to which the University was required to provide Davidowski with a vehicle and maintain it in good condition, and further agreed to indemnify Sodexho for all claims arising out of the performance of the University's obligations under the agreement. The University moves to strike count one on the ground that Sodexho is not entitled to common law indemnification under the circumstances, and count two on the ground that its claim for contractual indemnification fails because it has not alleged that the University breached the agreement. Sodexho objects to the motion on the grounds that it has adequately alleged both claims.
The University argues that count one is legally insufficient for two reasons: Sodexho's allegation that Davidowski was a "permissive user" of a vehicle owned by the University are insufficient to impute liability to it because Sodexho does not allege that the University and Davidowski had an agency relationship; and the allegations fail to satisfy a basic element of common-law indemnification because a vicariously liable party cannot be an active tortfeasor. Sodexho counters that it is not required to specifically allege that the University had a agency relationship with Davidowski because, under General Statutes § 52-183, allegations of permissive use give rise to a rebuttable presumption of agency. In addition, Sodexho argues that it has adequately alleged facts that show that the University was primarily negligent as compared to Sodexho.
Regarding count one, General Statutes § 52-183, which is entitled "Presumption of agency in motor vehicle operation," provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
Our appellate courts have not decided whether a party alleging a claim under § 52-183 is required to allege that the operator of a vehicle was acting as the agent of the owner, and a split of authority exists in the trial courts on this issue. A slim majority of five cases read such pleading requirement into the statute while three cases favor the opposite view. The reasons for the split are not clear.
When a court is unable to reconcile case law, it must examine the statute itself. See, e.g., Dart Bogue Co. v. Slosberg, 202 Conn. 566, 571-72, 522 A.2d 763 (1987). This court must apply the principles of statutory construction to § 52-183. The initial guide in statutory interpretation is the language of the statute itself, Barry v. Quality Steel Products, Inc., 280 Conn. 1, 8, 905 A.2d 55 (2006); and extratextual sources are used only when the statute's meaning is ambiguous. Id., 8 n. 11; see also General Statutes § 1-2z. "The intent of the legislature . . . is to be found not in what the legislature meant to say, but in the meaning of what it did say." (Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d. 673 (2006). Interpretations rendering a statutory provision superfluous should be avoided; id., 216-17; and statutes relating to the same subject matter should be construed harmoniously so as to ensure a coherent body of law. Board of Education v. State Board of Education, 278 Conn. 326, 333, 898 A.2d 170 (2006).
Section 52-183 does not contain any language expressly requiring a party to plead agency; it simply states that the operator of a motor vehicle presumed to be an owner's agent in any negligence action brought against the owner. To require a party to expressly allege an agency relationship would seem to render the statutory presumption superfluous. That conclusion is slightly inaccurate, however, since the burden that is affected is one of proof; see Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003); and not necessarily of pleading.
Nevertheless, because the statute is devoid of language regarding pleading requirements, such requirements should not be presumed. Moreover, a determination that a party was required to plead agency would be inconsistent with the Supreme Court's determination that, as a general rule, "§ 52-183 . . . precludes the direction of a verdict for the defendant [solely] on the basis of the plaintiff's failure to establish agency." Bogart v. Tucker, 164 Conn. 277, 281, 320 A.2d 803 (1973).
Furthermore, such a requirement would make § 52-183 inconsistent with the manner in which the courts have interpreted the pleading requirements of the closely related family car doctrine, codified in § 52-182. As the Supreme Court has stated that "[i]n referring to the parallel presumption raised by the `family car' doctrine as set forth in General Statutes § 52-182, we have held that it is not essential, where the complaint states the facts which make the statutory presumption of agency applicable, to allege that fact expressly. Smith v. Furness, 117 Conn. 97, 102, 166 A. 759 (1933), and cases cited therein . . ." (Citation omitted.) Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983). In Smith v. Furness, supra, 117 Conn. 102, the court noted that "[i]t would not be necessary to allege, in addition to the fact that the operator of the car was the wife of the owner, that she was also his agent, because the statute raises a legal presumption to that effect which need not be pleaded."
Section 52-182 provides in relevant part: "Proof that the operator of a motor vehicle or a motorboat . . . was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption."
In Trichilo, the court relied on Smith v. Furness, supra, in deciding that it had personal jurisdiction over a nonresident defendant under § 52-62, which states the requirements for service of process on nonresidents for the negligent operation of a motor vehicle by the nonresident or his agent, despite the plaintiff's failure to allege that the operator of the vehicle was acting as the nonresident's agent or otherwise caused the vehicle to be operated in Connecticut. As the court noted, pursuant to its language, " § 52-183 creates a presumption that the operator of a motor vehicle is the `agent and servant of the owner of such motor vehicle and operating the same in the course of his employment, and the defendant shall have the burden of rebutting such presumption.' . . . What is necessarily implied need not be expressly alleged. The complaint, therefore, is not deficient in the respect claimed." (Citations omitted; internal quotation marks omitted.) Trichilo v. Trichilo, supra, 190 Conn. 779.
For these reasons, Sodexho is not required to allege that an agency relationship existed between the University and Davidowski in order to state a cause of action for common-law indemnification.
Alternatively, the University argues that Sodexho's common law indemnification fails since such a claim can only be asserted against an active tortfeasor, and Sodexho's allegations against it are premised on its status as a vicariously liable party, which means it is a passive tortfeasor. Common-law indemnification is an exception to the general rule that "there is no right of indemnity or contribution between joint tortfeasors . . . Where, however, 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.' " Crotta v. Home Depot, Inc., 249 Conn. 634, 642, 732 A.2d 767 (1999). A party asserting a claim for indemnification that is "grounded in tort," must "establish four separate elements: (1) that the other tortfeasor was negligent; (2) that his negligence, rather than [the defendant's] was the direct immediate cause of the accident; (3) that [the other tortfeasor] 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 reasonably could rely on the other tortfeasor not to be negligent." (Internal quotation marks omitted.) Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).
Here, the plaintiff alleges that Sodexho is liable for her injuries in that it owns the motor vehicle that Davidowski was operating at the time of the accident. In its cross complaint, Sodexho repeats the allegations contained in the plaintiff's complaint and adds allegations that if the plaintiff was injured as she alleges, it is entitled to indemnification from the University because the University owns the motor vehicle at issue and the plaintiff's injuries were a result of the negligence of the University in that it was responsible of Davidowski's conduct, as it had control over the ownership, maintenance and permissive use of the vehicle; Sodexho did not know of the University's negligence, or have reason to anticipate it; and Sodexho could have reasonably relied on the University not to be negligent.
Pursuant to these allegations, the University may be liable to the plaintiff pursuant to § 52-183. Because the purpose of indemnification is to reimburse one party in full for the conduct of another "on whom primary liability is claimed to rest"; Ktytatas v. Stop Shop, Inc., 205 Conn. 694, 701, 535 A.2d 357 (1988); Sodexho may have a right to indemnification against the University. See also Russell v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 980149920 (May 31, 2001, Doherty, J.).
The University also argues that Sodexho's cross complaint fails to state a cause of action for contractual indemnification because it fails to allege breach and manner of breach. Sodexho counters that it has alleged all of the elements of its claim.
As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law. See PSE Consulting, Inc. v. Frank Mercede Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). The essential elements for a cause of action based on breach of contract are "(1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages . . . [and] causation." (Citation omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798.
In the second count of its cross complaint, Sodexho alleges it entered into a management agreement with the University and describes the University's obligations under the agreement as they pertained to Davidowski. It also alleges that the agreement contains indemnification provision pursuant to which the University is required to indemnify and hold Sodexho harmless for "all claims, damages, losses and expenses" that arise out of the University's performance of its obligations. Sodexho then expressly alleges that "[d]espite demand, [the University] has failed to honor its contractual obligations for indemnification and defense to Sodexho, Inc." Thus, Sodexho has adequately alleged that the University breached the indemnity provision of the parties' management agreement. The University also contends that Sodexho fails to allege the manner in which the University breached the agreement. It is well established that, in considering the adequacy of allegations of a pleading in the context of a motion to strike, "all well-pleaded facts and those necessarily implied from the allegations are taken as admitted . . . Indeed, pleading must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, supra, 277 Conn. 246. Accordingly, "[w]hat is necessarily implied in an allegation need not be expressly alleged." (Internal quotation marks omitted.) Id. Here, Sodexho's allegations necessarily imply that the University breached the indemnity provision by not indemnifying Sodexho for Davidowski's conduct as it relates the plaintiff.
For the foregoing reasons, the University's motion to strike Sodexho's cross complaint is denied.
The four motions to strike are denied.