Opinion
No. 126233
August 23, 2004
MEMORANDUM OF DECISION
On October 24, 2002, Adam Scheuritzel, the plaintiff, filed a three-count complaint against the following defendants: Ajax Construction Co., Wolman Homes, Inc. and Waterford Group, LLC. Scheuritzel claims that the defendants negligently or recklessly caused the injuries he sustained while working as a carpenter on the Mystic Marriott Hotel construction project in Groton, Connecticut. On November 13, 2002, Intext Building Systems, Inc. (Intext), Scheuritzel's employer and subcontractor on the project, moved to intervene in the action and filed an intervening complaint. On December 3, 2002, the court granted Intext's motion to intervene.
Schemitzel filed a revised complaint on March 26, 2003.
The following alleged facts are relevant to the motion to strike. On August 1, 2000, Intext entered into a subcontractor agreement with Wolman, the general contractor on the construction project. Scheuritzel, an employee of Intext, slipped on a large metal bolt while working on the project and suffered injuries to his right ankle and right deltoid. Pursuant to the Workers' Compensation Act, Intext incurred an obligation to compensate Scheuritzel for his medical expenses. In its intervening complaint, Intext seeks reimbursement for these expenses from Wolman.
On October 15, 2003, Wolman filed an answer to Intext's intervening complaint along with a special defense pursuant to General Statutes § 52-572h and counterclaims for apportionment and contractual indemnification. On February 24, 2004, Intext filed a motion to strike the apportionment and contractual indemnification counterclaims along with a supporting memorandum of law. On the same day, Wolman filed an amended answer to the intervening complaint, withdrew the counterclaim for apportionment and added a counterclaim for common-law indemnification. On April 23, 2004, Intext filed a supplement to the motion to strike, which moved to strike the common-law indemnification claim, along with a supplemental memorandum of law. On April 26, 2004, Wolman and Intext presented oral arguments to the court on both the contractual and common-law indemnification claims.
Wolman brings the special defense pursuant to "C.G.S. § 52-572(h)." However, since § 52-572 relates to parental immunity, and does not contain a subsection (h), the court will treat this special defense as being brought pursuant to § 52-572h, which addresses the liability of multiple tortfeasors for damages.
Wolman labels these claims "crossclaims." However, the court will refer to them as "counterclaims" because they are brought against Intext.
DISCUSSION
"A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985). "A motion to strike . . . requires no factual findings by the trial court . . . [the court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
Common-law Indemnification
In its counterclaim for common-law indemnification, Wolman alleges that Intext's negligence, not Wolman's negligence, caused Scheuritzel's accident because Intext failed to inspect and clean up the room in which Scheuritzel was walking or pick up the bolt on which he tripped. Wolman further alleges that Intext controlled the maintenance and clean up responsibilities of Scheuritzel's working area to the exclusion of Wolman. Wolman also alleges that the defendant did not know about Intext's negligence, and had no reason to anticipate it, and could reasonably rely on Intext not to be negligent.
Intext moves to strike the common-law indemnification counterclaim because Wolman "cannot satisfy all the elements necessary for common-law indemnification." Specifically, Intext argues the trier of fact could not find Intext to have been actively negligent in causing Scheuritzel's injuries because a corporation can only be negligent through its employees. Intext's motion also argues that the purpose and intent behind common-law indemnification claim will be achieved via Wolman's special defense raised under § 52-572h. In its supplemental memorandum, Intext raises two more reasons for striking the common-law indemnification claim. First, Intext argues that it cannot indemnify Wolman because Intext is immune from any direct action by Scheuritzel. Second, Intext argues that Wolman could not convince a reasonable juror that Intext exclusively controlled the situation in which the plaintiff was injured.
It would be inappropriate to grant the motion based on the argument that a trier of fact could not rationally conclude that a corporation could actively engage in negligent behavior. Intext provides no case law supporting either its reasoning that only natural persons, not a corporation, can be actively negligent, or its further conclusion that a corporation can only be passively negligent. The court is not aware of any law that precludes a corporation from being held liable, as an active tortfeasor, for indemnification under common law.
Intext does not cite any law, nor is the court aware of any, that precludes a party from seeking relief through both § 52-572h and common-law indemnification.
It would be inappropriate to grant the motion based on this argument because the standard for examining a claim on a motion to strike requires the trial court to determine whether the facts, if proven, could support the action. Entertaining this argument would require the trial court to examine the alleged facts to an extent beyond what is proper on a motion to strike.
Intext's supplemental memorandum argues that since Intext is immune from a direct action by Scheuritzel based on the exclusivity of the workers' compensation remedy, Intext is immune from an indemnification claim. Intext relies on Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), for this proposition. In Crotta, the Supreme Court concluded that when the doctrine of parental immunity bars a minor plaintiff from asserting a claim against his or her parent, a defendant cannot assert a common-law claim for indemnification against that parent. Id., 641-42. The court also discussed, at length, the policy reasons behind its conclusion. Id., 643-44. The rationale used and conclusion reached in Crotta, does not apply to this case.
In limited circumstances, a defendant may bring a common-law indemnification claim against a plaintiff's employer even when the exclusivity of a workers' compensation remedy prevents the plaintiff from bringing a direct action against his or her employer.
"Ordinarily there is no right of indemnity or contribution between tort-feasors . . . 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.' . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997). "Statutory law provides that, for most purposes, workers' compensation payments are the exclusive source of remedy against an injured employee's employer . . . In view of the exclusivity of workers' compensation relief, indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship." (Citations omitted.) Id., 699.
"When the third party, in a suit by the employee, seeks recovery . . . against a contributorily negligent employer . . . 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." (Internal quotation marks omitted.) Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989).
In the common-law indemnification counterclaim, Wolman fails to allege that a separate contractual relation or any independent legal relationship between itself and Intext existed. Without this allegation, Wolman's claim cannot overcome the exclusive-remedy bar created by workers' compensation payments. If Wolman cannot overcome this bar, Wolman is not entitled to indemnity from Intext based on a conmon-law indemnification theory.
While Wolman brings a separate counterclaim for contractual indemnification based on the subcontract agreement it had with Intext, the counterclaim for common-law indemnification does not reference this contract or any other contract.
Accordingly, Intext's motion to strike the common-law indemnification claim is granted.
Contractual Indemnification
In its counter claim for contractual indemnification, Wolman alleges that the contract between itself and Intext, executed August 1, 2000, contains provisions for "indemnification" and a "clean-up." Wolman alleges that if it is found to be liable in this action, Wolman is entitled to indemnity by Intext pursuant to the agreement because Intext negligently caused Scheuritzel's accident by failing to inspect and clean up the room in which the accident occurred.
In paragraph six of the counterclaim for contractual indemnification, Wolman alleges the following: "According to Article 4, Section 4.6 entitled Indemnification of said contract, Intext Building Systems, Inc. agreed to indemnify and hold harmless the . . . Contractor . . . and agents and employees of [of the Contractor] from and against claims, damages, losses and expense, including but not limited to attorney fees, arising out of or resulting from performance of the Subcontractor's Work under this Subcontract, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part or by a party indemnified hereunder."
In paragraph seven of the counterclaim for contractual indemnification, Wolman alleges the following: "According to Article 4, Section 4.4 entitled Clean-up, Intext Building Systems, Inc. agreed to at all times keep the project free from any rubbish, waste, excess material, equipment and debris, resulting from the work and each day shall come from the project . . . any such rubbish waste and debris."
Intext moves to strike the defendant's counterclaim for contractual indemnification because General Statutes § 52-572k voids indemnification and hold harmless clauses in agreements relating to construction.
General Statutes (Rev. to 1977) § 52-572k provided in relevant part: "Hold harmless clause against public policy in certain construction contracts. (a) Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto . . . that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of such promisee, such promisee's agents or employees is against public policy and void." When the statutory language was amended by Public Act 01-155, the legislature removed the term "sole." However, the parties entered into the subcontract agreement on August 1, 2000, before the language was amended.
The indemnification provision described in Wolman's claim does not purport to indemnify Wolman for damage caused by its sole negligence. Instead the provision expressly provides for indemnification "only to the extent caused in whole or in part by negligent acts or omissions of the Subcontractor, the Subcontractor's Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is cause in part or by a party indemnified hereunder." Accordingly, the provision alleged by Wolman is not rendered void by § 52-572k.
"Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification." (Internal quotation marks omitted.) Camarro v. Chesire Investment Cop., Superior Court, judicial district of New Haven, Docket No. 02 0461358 (Dec. 3, 2002, Zoarski, J.). Wolman has properly alleged an express contractual right to indemnification. Accordingly, Intext's motion to strike the contractual indemnification claim is denied.
CONCLUSION
For the foregoing reasons, Intext's motion to strike is granted with respect to Wolman's common-law indemnification claim and denied with respect to Wolman's contractual indemnification claim.
D. Michael Hurley, JTR