Opinion
No. CV04 0411443 S
January 5, 2006
MEMORANDUM OF DECISION
MOTION TO STRIKE CROSS CLAIM
Pursuant to Practice Book § 10-39 et seq., the defendant Irma Leczo has moved to strike the May 9, 2004 cross claim alleged by the defendants, Fedner St. Val and Bolivar St. Val for the reason that the cross claim fails to allege sufficient facts, if proved, to state a cause of action for common-law indemnification. Specifically, the defendant Leczo argues that the cross claim plaintiffs, St. Val, cannot establish that Leczo was in exclusive control of the situation surrounding a motor vehicle accident occurring on December 22, 2002 which is the subject of the underlying claim. The cross claim plaintiffs, St. Val, in their objection to the motion to strike argue that they have adequately stated a claim for common-law indemnification against the defendant Leczo.
The underlying plaintiff, Rogers, instituted this action against the defendants Irma Leczo, Fedner St. Val and Bolivar St. Val by way of a Writ, Summons and Complaint dated March 18, 2004. Rogers's complaint alleges he was a passenger in a motor vehicle being operated by Fedner St. Val and owned by St. Val. On December 22, 2002, a collision occurred between the St. Val vehicle and the Leczo vehicle. Count One of the complaint filed by Rogers is addressed to Leczo and Count Two pertains to claims against the defendants St. Val. The complaint alleges negligence on behalf of Fedner St. Val as operator of the vehicle owned by Bolivar St. Val, as well as, negligence on behalf of Irma Leczo.
The defendants St. Val have filed their Answer and a Cross Claim against Leczo alleging, inter alia, that Leczo operated her vehicle in a negligent manner so that the left front side of her vehicle made contact with the left side of the St. Val vehicle. The cross claim alleges that the plaintiff Rogers's injuries and damages were the direct and immediate result of the negligence and carelessness of Leczo in several ways. The cross claim, as well, alleges that Leczo was in exclusive control of her vehicle and the operation of her vehicle. Additionally, it alleges the St. Val did not know of her negligence and had no reason to anticipate it and they reasonably relied that Leczo would not be negligent.
I
The law regarding the granting of a motion to strike is well-settled. "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved 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 a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II
To maintain a common-law action of indemnity, the defendant must allege facts "(1) that the [plaintiff] was negligent; (2) that [that] negligence, rather than [defendants'], was the direct, immediate cause of the accident and injuries; (3) that [the plaintiff] was in control of the situation to the exclusion of [the defendants]; and (4) that [the defendants] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the [plaintiff] not to be negligent." (Internal quotation marks omitted.) Skuszinski v. Bouchard Fuels, Inc.
"There is a split of authority in the Superior Court concerning whether an allegation in a third-party complaint that a third-party defendant was in `exclusive control of the situation' is legally sufficient to support an indemnity claim arising out of an automobile accident when both parties are alleged to have committed active negligence." Keller v. Irizarry, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 067999 (May 8, 2000, Arnold, J.), 27 Conn. L. Rptr. 242. Cases that support the conclusion that exclusive control cannot be sufficiently pled in such a situation include: Gonzalez v. Sackett, No. CV02-0174484S (Feb. 18, 2004, Alvord, J.), 36 Conn. L. Rptr.; Keller v. Irizarry, supra, 27 Conn. L. Rptr. 242; Simon v. My Bread Baking Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 165440, 25 Conn. L. Rptr. 473 (October 14, 1999, D'Andrea, J.); Sanclemente v. Wlaz, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 394430 (May 12, 1992, Aurigemma, J.); Vahey v. Dodson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 268414, 3 Conn. L. Rptr. 73 (December 31, 1990, Nigro, J.); and Mahoney v. Gibson, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 055256 (June 26, 1984, Lewis, J.).
Cases which support the conclusion that exclusive control may be possible in a multiple-vehicle accident for an indemnity action include: Pettway v. Gonzalez, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 345423 (January 12, 1999, Nadeau, J.) ( 23 Conn. L. Rptr. 610); Sivahop v. Harris, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 351127 (Sept. 11, 1998, Nadeau, J.) ( 22 Conn. L. Rptr. 578); Gladding v. Saren, Superior Court, judicial district of Danbury at Danbury, Docket No. 327219 (November 17, 1997, Stodolink, J.); and Piscitelli v. Metro North Commuter Railroad, Superior Court, judicial district of New Haven at New Haven, Docket No. 326325 (September 5, 1995, Zoarski, J.).
This court continues to be persuaded by the reasoning of the majority of cases which have been reluctant to extend indemnification to accidents involving multiple motor vehicles on a public highway. This court agrees with the third-party defendant that the defendant/third-party plaintiff has failed to state a claim for common-law indemnity against a joint tortfeasor. Accordingly, the motion to strike is granted.