Opinion
No. CV-08-5007884-S
May 8, 2009
MEMORANDUM RE MOTION TO DISMISS #122.25
I. Nature and History of Proceedings
This wrongful death action is brought by the plaintiff as administratrix of the estate of Louis Meyers (decedent), who died on May 8, 2007, from injuries sustained on April 30, 2007, when he fell from an elevated steel "I" beam at a construction site in Branford. On April 4, 2008 the plaintiff filed a two-count complaint against C.S. Margison, Inc. (Margison), who was the general contractor responsible for the construction of a Walgreens pharmacy at 1036 Main Street in Branford. The decedent was employed by Northeast Steel Erectors, Inc. (Northeast), which was responsible for all of the steelwork at the site.
Recently, the probate court for the district of Bristol, removed Ms. Myers as administratrix of the decedent's estate and substituted in her place Attorney Gary Strickland. A motion to substitute the present fiduciary was pending at the time this case was transferred to the complex litigation docket at Waterbury.
After being served with the initial complaint, Margison impleaded three contractors, including Northeast. As a result, on October 3, 2008, the plaintiff amended her complaint, which is now comprised of six counts. The plaintiff alleges that the decedent's injuries and death were caused by the negligent and reckless conduct of Margison in the first and second counts, Norgate Metal, Inc. (Norgate) in the third and fourth counts, and Champion Steel, LLC, (Champion) in the fifth and six counts.
Shortly before the plaintiff amended her complaint, Margison, on September 22, 2008, filed a six-count third-party complaint (#115) against Norgate, Champion and Northeast, claiming, inter alia, that it (Margison) subcontracted all of the structural and miscellaneous steelwork at the construction site to Norgate, who subsequently subcontracted said work to Champion, who ultimately subcontracted the steelwork to Northeast, the decedent's employer. Specifically, Margison, in its third-party action, brings three counts against Norgate based upon contractual and common-law indemnity and an alleged breach of contract to procure insurance. Two counts are lodged against Champion, i.e, common-law indemnity and the failure to procure insurance. The sixth count is brought against Northeast based upon common-law indemnity, relative to which, on October 17, 2008, Northeast has filed its motion to dismiss (#122.25), which is the subject of this memorandum. Northeast asserts that any claim of common-law indemnity brought by one tortfeasor against another tortfeaser, the latter of which is also the employer of the injured plaintiff, is barred, with the exception of narrowly defined circumstances, by the exclusivity provisions of Connecticut's Workers' Compensation Act, General Statutes 31-275, et seq. Margison claims that the allegations in the sixth count of the third-party complaint fit one of the exceptions. Northeast disagrees and claims the statutory benefit.
Each of the parties has submitted briefs in support of its position. The court heard oral argument at short calendar on February 23, 2009. The court, after reviewing the file, reading the briefs submitted by counsel and the cases cited therein, and after considering the argument of counsel will, for reasons hereinafter stated, grant Northeast's motion to dismiss/strike relative to the sixth count of the third-party complaint.
At short calendar, counsel agreed to treat Northeast's motion to dismiss as a motion to strike, as that approach would be consistent with both Practice Book Sections 10-30 and 10-39, each of which defines the purpose and use of the respective motions.
II. The Sixth Count-Factual Allegations
As noted, both attorneys agree that the court should treat Margison's motion to dismiss as a motion to strike. The court will do so. The function of a motion to strike is to test the legal sufficiency of a pleading. The motion admits all facts that are well pleaded. Cyr v. Brookfield, 153 Conn. 261, 263 (1965). In deciding the motion to strike, the court must construe the allegations in the sixth count of Margison's third-party complaint in a light most favorable to sustaining its legal sufficiency. Bouchard v. People's Bank, 219 Conn. 465, 471 (1991). "The allegations of [that] pleading . . . are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support [the] . . . cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., 196 Conn. 91, 108-09 (1985). It is fundamental that in determining the sufficiency of the sixth count of Margison's third-party complaint to state a viable cause of action based upon the theory of common-law indemnity, not only must this court accept as true those facts well pleaded by Margison, but must take as admitted those facts necessarily implied by the allegations contained therein. Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292 (2004). With these legal principles in mind, the court will summarize the allegations in the sixth count.
The first four paragraphs echo the allegations set forth by the plaintiff in her initial complaint dated April 4, 2008, which Margison attached to its third-party complaint as Exhibit A. On April 30, 2007, while working at the Branford construction site as an employee of Northeast, the decedent fell from an elevated steel "I" beam. Margison further alleges that Northeast was the responsible party for the construction of all steelwork at the site; however, Margison refers to those paragraphs in the plaintiff's complaint that allege that the decedent's injuries and resultant death was caused by the negligent (first count) and reckless (second count) conduct of Margison. In fact, the plaintiff alleges forty-five specific negligent acts and/or omissions by Margison, that resulted in the decedent's death, including the failure to provide a safe workplace and the failure to provide fall protection as required by OSHA regulations. Margison denies all allegations of negligence and recklessness made by the plaintiff in her underlying initial complaint. Margison alleges that, by a purchase order dated December 1, 2006, Norgate agreed to furnish all material, labor and equipment necessary to install all of the structural and miscellaneous steelwork at the job site and that Champion then subcontracted that responsibility to Northeast by an oral agreement. Margison further alleges that, pursuant to the agreement with Champion, Northeast was to furnish all labor and equipment necessary to install the steelwork at the job site where the decedent was injured and that responsibility included the provision of a safe workplace for the employees working there, by providing fall protection and by complying with building codes, industry standards and OSHA regulations.
Although this court can and will infer from a reading of the plaintiff's amended complaint filed October 3, 2008, the briefs of the parties and the uncontested statements of counsel at oral argument that Norgate subcontracted all steelwork to Champion, by written purchase order, which then verbally subcontracted the steelwork to Northeast, the court can find no mention of the Norgate to Champion transaction in the sixth count of Margison's third-party complaint.
In paragraph #11 of the sixth count, Margison asserts that "if" the decedent was injured as alleged in the underlying complaint, his injuries and resultant death were due to the negligence of Northeast, its agents servants, employees and subcontractors in that Northeast failed, inter alia, to provide a safe workplace, including fall protection to those of its employees doing the steelwork at the site. Margison sets forth forty-four specific acts and omissions by Northeast, which it alleges caused the decedent's injuries. Margison then asserts that Northeast had exclusive control over the safety of the work performed by the decedent, that Margison had no reason to believe that Northeast was negligent, and could, therefore, reasonably rely on Northeast to properly undertake its safety responsibilities. Margison further asserts that if it is ultimately held liable for damages on the underlying complaint, such was due to the "active" negligence of Northeast. Margison, therefore, demands indemnification from Northeast for all sums which the plaintiff would recover from Margison in addition to expenses incurred by Margison in defending the suit.
III. Applicable Law
A. The Workers' Compensation Act
The court has detailed herein the standard which the court is obligated to follow in deciding a motion to strike a pleading or, as in this case, a particular count in a pleading. No doubt those standards are an important consideration in guiding the court to a well-reasoned and correct decision. In this case, however, this court must also be guided by the strong public policy behind the so-called exclusivity provision of Connecticut's Workers' Compensation Act. General Statutes section 31-284(a) in pertinent part provides as follows:
An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained . . .
Thus, if an employer proves to the Workers' Compensation Commission that it has provided the required insurance protection or other sufficient evidence of financial responsibility under subsection (b) of the Act, the quoted provision protects the employer from any liability beyond the obligations imposed by the Act to any employee injured or killed while on the job.
Under the Workers' Compensation Act, both the employer and the employee have relinquished certain rights to obtain other advantages. The employee no longer has to prove negligence on the part of the employer, but, in return, he [she] has to accept a limited, although certain recovery . . . The employer, in turn, guarantees compensation to an injured employee in return for the exclusivity of the workers' compensation liability to its employees.
Bouley v. Norwich, 222 Conn. 744, 752 (1992).
In Barry v. Quality Steel Products, Inc., 263 Conn. 424, 451 (2003), our Supreme Court held that,
[b]ecause of the exclusivity provisions of the Workers' Compensation Act, this court has limited a third party's right to seek indemnification from an employer to those situations where there is an independent legal relationship between the third-party and the employer, thereby generating a legal duty from the employer to the third-party seeking indemnification.
Ferryman v. Groton, 212 Conn. 138, 144-45 (1989).
B. The Ferryman Case
Ferryman is cited by counsel for each of the parties to the present motion. As in this case, Ferryman was a wrongful death action filed by the deceased employee's administrator against the city of Groton, which was the owner of an electric substation where the decedent was fatally injured while cutting the grass near a high voltage line, as an employee of Electric Boat, which co-owned the substation. The city filed a third-party complaint against Electric Boat, alleging that the decedent's employer owned, maintained and controlled access to the substation. The city sought indemnification from Electric Boat, which filed a motion to strike based upon the exclusivity provisions of the Workers' Compensation Act. The trial court granted the motion, rejecting Groton's argument that the third-party complaint alleged an independent legal relationship between Groton and Electric Boat, thereby denying the city's indemnification claim. The Supreme Court reversed, finding that the allegations in the third-party complaint were "facially sufficient" to establish such an independent legal relationship between the city and Electric Boat, vis-a-vis the substation, to justify indemnification and, as it were, to trump the exclusivity provisions of the Act if in fact, it were proven that the employer, i.e., Electric Boat, breached the independent legal duty arising out of that relationship. The case was remanded to the trial court for further proceedings.
The Court first discussed the concept of common-law indemnity which is an exception to the general rule of no 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 damage done due [to] the injury.
Id., at page 142-43.
The Court then discusses the so-called Kaplan doctrine, Kaplan v. Merberg Wrecking Corp, 152 Conn 405, 411-15 (1988), wherein the Court, employing an "active or primary negligence" and "passive or secondary negligence" analysis, more specifically refined the common-law indemnification cause of action between tortfeasors. Citing Kaplan, the Court observed: "we have permitted recovery even absent a finding of an express or implied agreement as between two tortfeasors to exercise reasonable care." Ferryman v. Groton, supra, 212 Conn. 143.
In Ferryman, the city urged the court, as does Margison in this case, as evidenced by the allegations in paragraphs #13, 14 and 15 of its third-party complaint that invoke the common-law doctrine and as further evidenced by the allegations in paragraph 16 of said complaint that invoke the Kaplan doctrine, to find that the decedent's employer had the duty to indemnify. In Ferryman, however, the Supreme Court, in recognition of the strong public policy behind the exclusivity provision of the Workers' Compensation Act, added an additional requirement when one tortfeasor seeks indemnification from another tortfeasor, who was the employer of the injured plaintiff. The court, citing 2A A. Larson, Workmen's Compensation Law, 76, held, at pages 144-45:
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. (Emphasis added.)
In Ferryman, the court found that the allegations in the third-party complaint filed by the city of Groton, over and above the traditional factors and the Kaplan factors were "facially sufficient" to apply the new doctrine to Electric Boat. The court stated:
The third-party complaint alleges that "[t]he electric substation was owned, operated, maintained and controlled by Electric Boat. The City of Groton owned only the transformers and the metering equipment at the electrical substation." It further alleges that "Electric Boat controlled access to the electrical substation." Finally, it alleges that Franklin, "an employee an[d] agent of Electric Boat, unlocked the gate surrounding the electric substation, making it possible for Ferryman to enter the area of the substation." Thus, we see allegations by an owner whose property, while in the possession of another, is alleged to have caused the death of a third person whose access to the property has been furnished by the agent of the party in possession. When viewed in the light most favorable to the pleader, as required in addressing a motion to strike; the complaint discloses the essentials of either a co-owner relationship, a bailor-bailee relationship or a lessor-lessee relationship, any one of which could contain the express or implied independent, legal duty that would serve to preclude the operation of the exclusive remedy provisions of 31-284. What is necessarily implied need not be expressly alleged. (Citations omitted.)
Id., at pages 145-46.
The Court concluded that the allegations in the city's third-party complaint, if taken as true, established "a relationship that goes beyond the active/passive negligence relationship found in Kaplan." Id. at page 146. The Court, therefore, found the requisite independent relationship between Electric Boat and Groton, a relationship which the Court deemed strong enough to overcome the exclusive remedy clause of the Act.
III. Claims of the Parties
In its memorandum in support of its motion to dismiss/strike, Northeast argues that the sixth count of Margison's third-party complaint relies solely upon an implied promise of a secondary wrongdoer and does not allege any express agreement or direct relationship between Northeast and Margison. The only relationship that is specifically alleged is the oral agreement between Northeast and Champion, the latter having made an agreement with Norgate, which had an agreement with Margison. Thus, Northeast argues that there can be no finding of the type of independent legal relationship and resultant legal duty between Northeast and Margison, such as the Ferryman court found to have existed between Groton and Electric Boat.
In its memorandum in opposition, Margison, while conceding the Margison to Norgate to Champion to Northeast scenario, nevertheless, quotes Ferryman at length, asserting that, "other allegations" in the sixth count, when viewed in a light favorable to Margison, do establish the type of relationship required by our Supreme Court. Margison argues that the relationship between it and Northeast was not a random, unanticipated business relationship. Margison asserts that the allegations in the sixth count that refer to a series of delegations by purchase order from Margison, ultimately to Northeast, establish that the initial obligation to provide a safe work environment, assumed by Norgate, was "passed down the line and assumed by Northeast." Margison argues that, when viewed in a light favorable to it, at the very least, the court should conclude that Margison was a third-party beneficiary of the verbal agreement between Champion and Northeast that would suffice, under Ferryman, to establish the requisite independent legal relationship between it (Margison) and Northeast, which would then preclude the operation of the exclusivity exception to common-law indemnity between joint tortfeasors, when one is the employer of the injured plaintiff.
Margison cites Judge Walsh's opinion in Murphy v. Town of East Windsor, (CV-883 43193), judicial district of Hartford-New Britain at Hartford, January 27, 1992, as an example of a court allowing indemnification between joint tortfeasors when no contractual relationship existed. Although that court found the existence of an independent legal relationship between an engineering firm hired by the town for sewer installation and the excavating contractor that caused the roadway defect that injured the plaintiff, the opinion relies on the four elements of a typical common-law indemnification claim and the active/passive negligence analysis. More importantly, the case did not involve the workers' compensation exclusivity clause and the strong public policy behind it. It is therefore readily distinguishable from the case at bar.
IV. Discussion
An examination of post- Ferryman trial court cases and our Supreme Court's opinions in the Barry case, cited earlier herein, does not, in this court's view, lend much support to Margison's position. In Scrivenes v. Pepperidge Farm, Inc., (CV-92039946), judicial district of Ansonia-Milford, at Milford, January 10, 1997, Judge Corradino [18 Conn. L. Rptr. 426] dealt with a claim from an employee of Petco Insulation (Petco) who was injured in a fall on an interior stairway at the Pepperidge Farm (Pepperidge) work site. The employee sued Pepperidge, who impleaded Vic Insulation (Vic) in a third-party action. Pepperidge alleged that it had a written agreement with Vic to remove asbestos from the building and that it was Vic's negligence that caused the injury to the plaintiff for which Pepperidge sought indemnification. Vic, in turn, filed a third-party complaint seeking indemnification from Petco, who was apparently ultimately responsible for the removal of the insulation, which Petco sought to strike based on the exclusivity provision of the Workers' Compensation Act. In applying the Ferryman test the court noted that the complaint did not allege that there was an agreement between Vic and Petco that the latter perform the asbestos removal contract with due care or that the due care obligation referred to in Ferryman was "explicitly" assumed by Petco in favor of Vic. In striking the count in the third-party complaint that sought indemnification, Judge Corradino reasoned and concluded:
There are two Supreme Court opinions in Barry. In Barry v. Quality Steel Products, Inc., [ Barry I], 263 Conn. 424 (2003), the Court, inter alia, virtually abandoned the doctrine of superseding cause and, as noted, followed the Ferryman doctrine in refusing to find the requisite legal duty from one tortfeasor to another, the latter of whom employed the plaintiff. Three years later, the Court, in Barry II, 280 Conn. 1 (2006), held that the inclusion of an employer in the apportionment statutory scheme who paid workers' compensation benefits to an injured plaintiff would be inconsistent with the exclusivity clause of the Act.
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 contractors when one of its employees is injured, what real protection would the act provide. Contractors would be 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. (Emphasis added.)Doheny v. Klewin Building Co. et al, (CV06-5001557), judicial district of Fairfield, at Bridgeport, April 23, 2007, Arnold, J., arose out of a claim for injuries as a result of a fall at a construction site at Sacred Heart University. The University and Klewin subcontracted the installation of the building's sprinkler system to Precision Mechanical Services (Precision); however, Precision subcontracted the job to 15300 Corp. (15300), which employed the injured plaintiff. In addition to the University and Klewin, the plaintiffs sued Santos Foundations, Inc. and Precision. Precision filed a counterclaim against 15300 seeking common-law indemnification, alleging the traditional and the Kaplan factors. The plaintiff's employer filed a motion to strike the counterclaim. Precision opposed the motion, citing Ferryman and arguing that the facts and circumstances, when viewed in a light most favorable to Precision, established the requisite independent legal relationship to overcome the exclusivity clause of the Workers' Compensation Act. Noting the lack of any allegations in the counterclaim that a written contract existed between the parties and the absence of any allegations that their verbal agreement required reimbursement, indemnification, or that the work be done with due care, the court granted 15300's motion to strike. Judge Arnold agree[d] with 15300 that the allegations in the counterclaim even interpreted most favorably to Precision do not sufficiently allege the nature of the parties' relationship and fall short of satisfying the examples set forth in Ferryman . . . "[A] third party must explicitly allege that there was an agreement between the parties to perform a job with due care," citing Scrivenes, supra. (Emphasis added.)
Three days after Doheny was issued, Judge Hurley, in Lindholm v. Stellenwerf, (CV5000418), judicial district of New London at Norwich, April 20, 2007, did find the independent legal relationship and, as a result, the legal duty owed by an employer of the plaintiff, as required by Ferryman. In that case the plaintiffs sued the named defendant, who operated a snow-plowing business and alleged that on December 8, 2003 while working at the Groton Inns and Suites (Inn), she slipped and fell on an icy walkway. Stellenwerf filed an "apportionment and counterclaim" complaint claiming statutory apportionment in count one and common-law indemnification in count two, to which the Inn filed a motion to strike on the ground that such a pleading was precluded by the exclusivity clause of the Workers' Compensation Act. The court found that certain allegations in the counterclaim were sufficient to pass the Ferryman test. Stellenwerf specifically alleged that an agreement existed between him and the Inn pursuant to which the latter was to provide snow removal and sanding services. Stellenwerf further alleged that it was the Inn that "instructed, directed and/or ordered" the portions of the premises that were to be covered by the agreement, that did not include the area of the plaintiff's fall, an area that was under the exclusive control of the Inn. The court concluded that, "Stellenwerf has therefore sufficiently alleged an independent legal duty that goes beyond the primary/secondary relationship that the Supreme Court declared insufficient in Ferryman v. Groton." Under the circumstances alleged the court did not see the exclusivity provisions of the Workers' Compensation Act as a bar to Stellenwerf's counterclaim of common-law indemnity against the plaintiff's employer.
Apparently, at oral argument, Stellenwerf conceded the motion to strike the apportionment count.
Foust v. Nason, (CV-5002729), judicial district of New London at New London, February 20, 2008, Martin, J., was another slip and fall case involving an icy walkway. The plaintiff alleged that, while walking on a sidewalk of a building owned by Nason, she slipped on an accumulation of ice and snow and sustained injury. She claimed that Nason, who owned the property, was negligent in failing to clear the walkway or to apply sand and salt. At the time of her fall, the plaintiff was in the course of her employment with Network Inc. After Network intervened, seeking reimbursement for the workers' compensation benefits it paid to the plaintiff, Nason filed a counterclaim against Network. Nason alleged that she entered into a leasehold agreement with two of Network's clients pursuant to which Network was responsible, on its client's behalf, for the maintenance of the area of the sidewalk where the plaintiff fell and that it was Network's active and primary negligence that caused the plaintiff's injuries, as it had exclusive custody and control of the area. Nason further alleged that if she was ultimately found responsible for the plaintiff's injuries, it would be as a result of Network's breach of its lease agreement with Nason. Nason sought indemnification from Network.
Network filed a motion to strike the counterclaim based upon the exclusivity provisions of the Workers' Compensation Act and asserting that Nason failed to allege the existence of any independent legal relationship with Network, alleging only that such a relationship existed with Network's clients. Nason argued that she had properly alleged the requisite independent relationship between her and Network, i.e., that Network was obligated, as the agent of its clients, to maintain the condition of the sidewalk pursuant to the lease agreements Nason entered into with Network's clients. Citing Ferryman, the court found that Nason failed to sufficiently allege the required independent relationship between Network and Nason. What the landlord did allege was a lease agreement, not with Network, but with Network's clients. Citing Doheny, supra, Judge Martin granted the motion to strike and concluded:
Network's clients were two residential tenants, who, pursuant to each of their rental agreements with Nason, were obligated to indemnify management for certain losses. Network was not a party to Nason's agreement with her tenants.
It cannot be reasonably inferred from Nason's allegations that the legal relationship between Network and its clients created an independent legal duty on the part of Network toward Nason. Even interpreting [the] counterclaim allegations most favorably to sustaining their legal sufficiency, the relationship alleged between Nason and Network is too attenuated to overcome the bar on the claims against employers set forth in exclusivity provision of the Workers' Compensation Act. (Emphasis added.)
As noted earlier herein, our Supreme Court, in Barry v. Quality Steel Products, Inc., Barry II, supra, n. 5, refused to apply statutory apportionment to an employer who paid workers' compensation benefits to its employees, the injured plaintiffs. The Court's decision, however, in Barry I, supra, is most relevant to the issue before this court. The case actually arose out of two cases ( Barry) and ( Chohade) that were consolidated for trial. The plaintiffs filed a statutory product liability suit against Quality to recover for personal injuries as a result of the collapse of staging used by them while shingling a roof causing them to fall from the roof. They claimed that the failure of the staging was due to defective roof brackets, which were designed by Quality and were sold by a customer of Quality to DeLuca, a company which employed the plaintiffs. Once DeLuca intervened in the cases, seeking indemnification for workers' compensation benefits that it paid to its injured employees, Quality filed a counterclaim, alleging that DeLuca owed it a duty to indemnify for all damages that the plaintiffs might recover from Quality. The trial court entered summary judgment on the defendant's counterclaim in favor of DeLuca. On appeal, Quality claimed that an independent relationship existed between it and DeLuca via an implicit agreement that the roof brackets purchased by DeLuca would be in compliance with OSHA regulations and that DeLuca breached its independent legal duty by, inter alia, failing to provide additional fall protection to the plaintiffs while working on the roof. The Court, citing Ferryman, stressed the importance of the exclusivity provisions of the Workers' Compensation Act. The Court then referred to its decision in Therrien v. Safeguard Mfg. Co., 180 Conn. 91 (1980), wherein the Court held that, "[t]he law does not independently impose a quasi-contractual duty upon a buyer to indemnify a manufacturer for injuries sustained by the buyer's employees in the use of a defective product" and thus concluded:
On the basis of the principles we articulated in Therrien, we conclude that an implied agreement to abide by OSHA regulations does not create any independent legal duty owed by DeLuca to the defendants. Furthermore, even if such a duty were to have existed, it would not give rise to a duty of indemnification that would circumvent the exclusivity provisions of the Workers' Compensation Act. We, therefore, affirm the trial court's grant of summary judgment rendered in favor of DeLuca. (Emphasis added.)
Barry v. Quality Steel Products, Inc., supra, 263 Conn. 452.
In its second and final encounter with the case, the Supreme Court held that the reference to "party" in General Statutes Section 52-572o, the apportionment statute, does "not include an employer that has intervened in the action to seek reimbursement of workers' compensation benefits paid to the plaintiffs." Barry v. Quality Steel Products, Inc., 280 Conn. 1, 8 (2006). The Court opined that the inclusion of such an employer in a statutory apportionment scheme would be contrary to the public policy embodied in Connecticut's Workers' Compensation Act. Justice Borden, writing for the Court, stated:
Section 52-572o provides in pertinent part:
(a) In any claim under sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.
(b) In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party.
To include such an employer in the general scheme of allocation of responsibility would be wholly inconsistent with the employer's immunity from suit by its employee under the Workers' Compensation Act and with the employer's limited role as intervenor to recoup the payments it is required by that act to make to its employee. Such an employer could not be liable to the plaintiff on the basis of joint and several liability as a joint tortfeasor, because of the exclusivity provision in the Workers' Compensation Act. Furthermore, to include such an employer as a "party" for purposes of apportioning liability pursuant to § 52-572o would undermine the purpose of allowing contribution among the liable parties, because, based on that same principle of exclusivity, such an employer could not be required to contribute to a third party's payment of the plaintiff's damages. Put another way, to consider the plaintiffs' employer as a "party" for purposes of apportioning liability among defendants under § 52-572o as the defendants argue, would in effect either deprive the plaintiffs of the full amount of their net award or strip the employer of its bargained for exclusivity under the Workers' Compensation Act. We decline to interpret § 52-572o to arrive at such a perverse set of consequences. (Emphasis added.)
Id., at pages 14-15.
V. Conclusion
In this case Margison is, in effect, three times removed from any specific agreement with Northeast. There is no allegation that Northeast and Margison entered into an agreement about anything. All that Margison alleges is that it had an agreement with Norgate that included Norgate's obligation to abide by OSHA regulations, building codes and industry standards insofar as the steel construction was concerned. Margison further alleges that Norgate made a similar agreement with Champion. Both of these agreements were allegedly entered into via written purchase orders. When Champion subcontracted its responsibility to Northeast, by oral agreement, Margison argues that Northeast then assumed an independent legal duty to Margison to comply with the safety codes and regulations. Margison asserts that the independent legal relationship thereby created by the Margison to Norgate to Champion scenario was of the type envisioned by our Supreme Court in the Ferryman case and applied by that Court and the trial courts of the state.
This court agrees with those post Ferryman cases cited above that require a joint tortfeasor, who seeks common-law indemnification from another tortfeasor who was the employer of' the plaintiff, to allege facts that establish an explicit agreement, whether written or oral, between the two parties whereby the plaintiff's employer agrees to indemnify the other party. This court agrees with those post- Ferryman decisions that, absent an explicit agreement to indemnify, require the tortfeasor seeking indemnification, at the very least, to allege a direct legal relationship between the two parties that would enable a trial court, consistent with Ferryman, to find an independent legal duty owed by the employer to that party.
This court finds that the relationship between Margison and Northeast was too tenuous and too distant to meet the Ferryman standards. The facts alleged by Margison, when viewed in a light most favorable to it, do not establish the independent legal relationship that the Supreme Court requires in order to overcome the strong public policy behind the exclusivity provisions of Connecticut's Workers' Compensation Act.
Accordingly, Northeast's motion to strike the sixth count of Margison's third-party complaint is granted.