Opinion
No. CV 04 052667S
August 30, 2005
MEMORANDUM OF DECISION, RE MOTION #124 THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Facts
This is an action brought by the plaintiff, Michelle Roman, against the defendants, the city of Bristol and Tibor Flothman. On December 27, 2004, the plaintiff filed an amended three-count complaint against the defendants for injuries she allegedly sustained as a result of an accident that occurred on July 2, 2003, while she was participating in an activity at the Pine Lake Challenge Course (course) located in Bristol, Connecticut. The plaintiff alleges the following facts that are relevant to the present motion. At the time of the accident, the plaintiff was an employee of the Community Renewal Team, Inc., (CRT) and using the course pursuant to a written rental agreement between CRT and the city of Bristol. The plaintiff was participating in the course where she was to "ascend to an elevated platform and perform a free fall with a rope." As the plaintiff began to free fall, Flothmann failed to catch the rope and break her free fall. The plaintiff was injured as a result of the alleged negligence of Flothmann in failing to catch the rope.
The action was originally commenced against the city of Bristol and "John Doe." Tibor Flothmann was joined as an additional defendant in place of John Doe on November 22, 2004.
Previously on July 12, 2004, this court, Robinson, J., granted the defendants' motion to implead the Community Renewal Team, Inc. (CRT), which is also referred to as the East Hartford Juvenile Justice Center. For purposes of this memo, the third-party defendant will be referenced to as CRT.
On August 9, 2004, the third-party plaintiffs, the city of Bristol and Flothmann, filed a two-count third-party complaint against the third-party defendant, CRT, for breach of contract and indemnification. In count one, the third-party plaintiffs allege the following facts: At the time of the accident, the course was owned by the city of Bristol and run by Bristol youth services. On July 2, 2003, the third-party defendant executed a rental agreement (agreement) with the city of Bristol for a fee of $325, which covered use of the course for a four and one-half hour period. According to the terms of the agreement, the third-party defendant was to provide the city of Bristol with a certificate of insurance naming the city as an additional insured at least five days prior to using the course. The amount of liability insurance was to be a minimum of one million dollars for bodily injury and property damage. The agreement also CT Page 11935-v contained a hold harmless clause. The third-party plaintiffs further allege that the third-party defendant breached its duty by not honoring the terms of the agreement when it: (1) failed to hold the third-party plaintiffs harmless from the personal injury claim brought against them by Roman; (2) failed to provide a legal defense to the third-party plaintiffs; and (3) failed to secure and maintain the proper liability insurance policy. The third-party plaintiffs allege that due to this alleged breach, they have been exposed to a possible judgment and money damages as a result of the claim brought against them by Roman.
The hold harmless clause provides: "It is agreed and understood that the City of Bristol, the lessor, and all Challenge Course instructors, shall be held harmless for any and all injuries and or personal loss sustained by members and/or guests of the lessee while on or using the property or equipment owned or rented by the lessor."
In count two, the third-party plaintiffs allege the following additional facts: Due to the failure of the third-party defendant to honor the relevant provisions of the agreement set forth in count one, the third-party plaintiffs are entitled to indemnification for all future costs arising from the claim brought against them by Roman.
On January 5, 2005, the third-party defendant filed a motion for summary judgment. The motion was accompanied by a memorandum of law. The third-party plaintiffs filed a memorandum of law in opposition to the motion on January 19, 2005. On March 9, 2005, the third-party defendant filed a reply memorandum.
The following relevant documents were attached to the third-party defendant's supporting memorandum of law: (1) an insurance certificate naming city of Bristol as an additional insured; and (2) a rental agreement between the city of Bristol and the third-party defendant. The court notes that neither document had been properly authenticated. "[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Although neither of these documents was properly authenticated, both parties are in agreement as to the terms of both documents and cite to the relevant portions in their memoranda.
Discussion
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . [t]he summary judgment rule would be rendered sterile [however] . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . Our Supreme Court has held that even with CT Page 11935-w respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001).
The third-party defendant moves for summary judgment on the ground that there is no issue of material fact in that the hold harmless clause contained in the agreement was not triggered and a certificate of insurance was issued with the city of Bristol as a named insured. Specifically, the third-party defendant argues that the hold harmless clause does not expressly state that the third-party plaintiffs will be held harmless for injuries that occur due to their own negligence. In regard to the certificate of insurance, the third-party defendant claims that the certificate was issued, albeit for a lesser amount than called for in the agreement, which is all that the agreement required. In response, the third-party plaintiffs argue that the hold harmless clause in the agreement clearly requires the third-party defendant to hold harmless the third-party plaintiffs for any and all claims, including negligence, asserted against it by an injured party.
The third-party defendant also asserts the argument that the hold harmless clause applies only to injuries and losses sustained by its members or guests and that as an employee, Roman cannot be considered its member or guest. The Court rejects this argument for reason that it is improbable that the parties could not reasonably have intended for employees to be treated as members under the terms of the agreement as it is written.
The third-party plaintiff also argues that the notion for summary judgment is procedurally defective because it only addresses the claim for indemnification. However, the third-party defendant has adequately CT Page 11935-ac set forth its grounds for summary judgment based on the certificate of insurance being issued.
Certificate of Insurance
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). In the present case, the third-party defendant was required to provide the city of Bristol with a certificate of insurance naming the city as an additional insured with a specific amount of liability insurance for bodily injury and property damage pursuant to the agreement. It is undisputed that the third-party defendant presented the certificate naming the city of Bristol as additional insured with the appropriate coverage for bodily injury; however, the certificate was issued with the incorrect amount for property damage; Nevertheless, this has no bearing on the claim brought against the third-party plaintiffs by Roman for her physical injuries. "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." CT Page 11935-x (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003). The third-party plaintiffs alleged damages resulting from bodily injury are not reasonably connected to the incorrect amount of liability coverage for property damage and, thus, the alleged damages are not a result of the alleged breach.
The third-party defendant has met its burden of establishing that there is no genuine issue of material fact as to the inability of the third-party plaintiffs to satisfy the fourth element of a breach of contract claim.
Hold Harmless Clause
"A contract is to be construed as a whole and all relevant provisions will be considered together . . . In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) HLO Land Ownership Associates, Ltd. Partnership v. Hartford, 248 Conn. 350, 356-57, 727 A.2d 1260 (1999). "A determination of contractual intent ordinarily presents a question of fact for the ultimate fact finder, although where the language is clear and unambiguous, it becomes a question of law for the court." (Internal quotation marks omitted.) BD Associates, Inc. v. Russell, 73 Conn.App. 66, 71, 807 A.2d 1001 (2002).
"In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning . . . A contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . Furthermore, a presumption that the language used is definitive arises when . . . the contract at issue is between sophisticated parties and is commercial in nature . . ." CT Page 11935-y
In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . [A]ny ambiguity in a contract must emanate from the language used by the parties . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670-71, 791 A.2d 546 (2002).
In the present case, the relevant portions of the agreement are undisputed. The hold harmless clause provides: "It is agreed and understood that the City of Bristol, the lessor, and all Challenge Course instructors, shall be held harmless for any and all injuries and or personal loss sustained by members and/or guests of the lessee while on or using the property or equipment owned or rented by the lessor." The parties disagree about the interpretation of this provision. However, the issue of whether the subject language creates a contractual duty on the part of the third-party defendant to hold harmless the third-party plaintiffs from liability for their own negligence is a question of law for the court.
It is well-established in Connecticut that "[t]he law does not favor contract provisions which relieve a person from his own negligence . . . Such provisions, however, have been upheld under proper circumstances . . . [T]he law's reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts . . . Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . .
"Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon . . . Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . ."
By and large, if such is the intention of the parties, the fairest course is to provide explicitly that claims based on negligence are included . . . That does not mean that the word `negligence' must be CT Page 11935-z employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear . . . (Citations omitted; internal quotation marks omitted.) BD Associates, Inc. v. Russell, supra, 73 Conn.App. 72-73.
After reiterating the abovementioned standard in BD Associates, Inc., our Appellate Court then determined that where both parties were business entities who entered into a commercial lease with one another, a broadly worded release clause was sufficient to insulate the drafting party from liability for its own negligence. Id., 73. Quoting a New York decision, Gross v. Sweet, 49 N.Y.2d 102, 108, 400 N.E.2d 306, 424, N.Y.S.2d 365 (1979), the court relied on the following legal proposition in support of its decision: "When applied to contracts to which the parties are sophisticated business entities, the law, reflecting the economic realities, will recognize an agreement to relieve one party from the consequences of his negligence on the strength of a broadly worded clause framed in less precise language than would normally be required, though even then it must evince the unmistakable intent of the parties . . ." (Internal quotation marks omitted.) BD Associates, Inc. v. Russell, supra, 73 Conn.App. 73.
Taking note of the BD Associates, Inc. decision, our Supreme Court more recently articulated the general proposition that absent express language, parties may not insulate themselves from liability for their own acts of negligence. Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003). In addressing indemnification clauses, the court acknowledged that some other jurisdictions had relaxed the standard for indemnification clauses that release an indemnitee from liability for its own acts of negligence; however, the court went on to say that "the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides." Id. This proposition had been previously applied by our Superior Court in situations involving a recreational facility and individual participant. See Foley v. Southington-Cheshire Community YMCAs, Inc., Superior Court, judicial district of New Britain, Docket No. CV 00 502023 (March 28, 2002, Shortall, J.) ( 31 Conn. L. Rptr. 673, 673-74). Although the Hyson court was addressing the situation in which one of the parties was an individual and the other a recreational facility, there is no indication that its reasoning was confined to that particular factual setting. Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643.
The Hyson court declined to decide whether in a commercial lease setting, broadly worded language such as that found in BD Associates, Inc. would be sufficient to insulate an indemnitee for its own acts of negligence. Hyson, supra, 265 Conn. 641 n. 6. Justice Norcott authored the dissenting opinion in Hyson, in which he suggested that the reasoning expressed in BD Associates, Inc. should have been adopted. Id., 647.
See also Longley v. White Water Mountain Resorts of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV 020460229 (December 10, 2002. Zoarski, J.T.R.) ( 33 Conn. L. Rptr. 505, 507); Slauson v. White Water Mountain Resorts of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV 99 0432460 (May 30, 2001, Jones, J.) ( 29 Conn. L. Rptr. 605, 606); Potts v. White Water Mountain Resorts of Connecticut, Inc., Superior Court, judicial district of New London, Docket No. CV 550961 (August 24, 2001, McLachlan, J.) ( 30 Conn. L. Rptr. 301, 302).
In the present case, the accident was allegedly caused by the third-party plaintiffs' negligence. The hold harmless clause clearly does CT Page 11935-aa not expressly state that the third-party plaintiffs will be held harmless for injuries caused by their own negligence, nor does this court suggest that such a provision would provide such insulation. The third-party plaintiffs argue that because both parties are business entities, this court should follow the reasoning expressed in BD Associates, Inc. however, this argument fails to consider the more fundamental policy considerations inherent in arriving at that decision. While the third-party defendant in the present case may be more akin to a sophisticated business entity than an individual, the agreement shares none of the characteristics of a commercial lease that is freely negotiated between two business entities for an extended period of time. The terms of the agreement were neither negotiated nor bargained for; rather, the agreement was a preprinted rental form that the city of Bristol drafted for use by its customers. Most importantly, the broadly worded language used in the hold harmless clause does not adequately put the third-party defendant on notice that the third-party plaintiffs were seeking to negate liability for their own acts of negligence. Based on these undisputed facts and absent a clear indication in the agreement that the third-party defendant was releasing the third-party plaintiffs from liability for their own negligence, this Court follows the reasoning expressed in Hyson. As aptly stated by the Hyson court, "[a] requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. Furthermore, the requirement that parties seeking to be released from liability for their negligence expressly so indicate does not impose on them any significant cost." Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643.
For the above-mentioned reasons, this rationale is also applicable to the present situation. The agreement did not expressly state that the third-party plaintiffs would be held harmless for their own acts of negligence and, therefore, the third-party defendant had no contractual obligation to hold harmless the third-party plaintiffs and was not obligated to provide indemnification.
For all of the foregoing reasons the Motion for Summary Judgment is granted.
So ordered.
Richard A. Robinson, J.