Opinion
HHDCV146048550S
07-27-2017
Krystyna Szymanska v. University of CT Health Center
UNPUBLISHED OPINION
RULING RE MOTION FOR SUMMARY JUDGMENT ##136 AND 138.00
M. Nawaz Wahla, J.
ISSUE
The issue is whether the third party plaintiffs, the University of Connecticut Health Center-John Dempsey Hospital and the state of Connecticut, or the third party defendant, ISS Facility Services, Inc., is entitled to summary judgment on count one of the third party complaint, which sounds in contractual indemnification, and count two of the third party complaint, which sounds in breach of contract. It is ordered that, count one of the third party complaint, the third party plaintiffs' motion for summary judgment is granted and the third party defendant's summary judgment motion is denied, and, as to count two, the third party plaintiffs' motion for summary judgment is denied.
FACTS
The present action arises from a dispute between the plaintiff, Krystyna-Szymanska, and the defendants, the University of Connecticut Health Center John Dempsey Hospital and the state of Connecticut (collectively, the state), regarding alleged personal injuries that the plaintiff suffered as a result of a trip and fall accident. On March 19, 2014, the plaintiff filed an amended complaint, which is the operative complaint, against the state. The amended complaint consists of a single count that sounds in negligence on a theory of premises liability.
In the amended complaint, the plaintiff alleges the following facts. On or about July 30, 2010, at approximately 11:30 p.m., the plaintiff exited the " main building" of the John Dempsey Hospital at the University of Connecticut Health Center (hospital). She proceeded to walk to her automobile, which was parked in the hospital's " AR" parking lot. As she was walking to her car, the plaintiff tripped on a portion of metal pipe or pole that was projecting out of the walkway. Consequently, the plaintiff fell to the ground and sustained physical injuries, which were proximately caused by the state's negligence. Accordingly, the plaintiff claims, inter alia, money damages.
The plaintiff also alleges that, on October 12, 2010, she served a " [n]otice of [c]laim and [n]otice of [i]ntention to [c]ommence [a]ction" on the Claims Commissioner, seeking permission to bring an action against the state for the alleged injuries that she sustained from the trip and fall accident. A copy of the " [n]otice of [c]laim and [n]otice of [i]ntention to [c]ommence [a]ction" is attached to the amended complaint as an exhibit. See Practice Book § 10-29. The plaintiff further alleges that, on January 15, 2014, the Claims Commissioner authorized the plaintiff to bring such an action pursuant to General Statutes § 4-160.
Subsequently, on April 17, 2014, the state filed an answer and special defense to the plaintiff's amended complaint. In its special defense, the state alleges comparative negligence against the plaintiff. On April 22, 2014, the plaintiff filed a reply to the state's special defense, in which she affirmatively denied the state's allegations of comparative negligence.
Moreover, on July 30, 2014, the state filed a motion to implead ISS Facility Services, Inc. (ISS) pursuant to General Statutes § 52-102a and Practice Book § 10-11. The court, Robaina J., granted the motion on September 8, 2014. In turn, on September 19, 2014, the state filed a third party complaint, which is the operative third party complaint, against ISS. The third party complaint is comprised of two counts that sound in contractual indemnification and breach of contract, respectively.
General Statutes § 52-102a provides in relevant part: " (a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him . . . Accord Practice Book § 10-11(a).
In both counts of the third party complaint, the state alleges the following facts. On approximately August 27, 2009, the state entered into a contractual agreement (contract) with ISS, pursuant to which ISS would provide cleaning services at the hospital. The term of the contract spanned a period of five years: October 1, 2009 through September 30, 2014. The contract provides that ISS is required to indemnify and defend the state " from and against any and all . . . claims arising directly or indirectly, in connection with the [c]ontract . . ." The contract also provides that ISS must " carry and maintain at all times during the term of the [c]ontract . . . sufficient general liability insurance to satisfy its obligations under this [c]ontract. [ISS] shall name [t]he [hospital], the [s]tate of Connecticut, and their officers, officials, employees, agents, boards and commissions' as additional insureds on the policy and shall provide a certificate of insurance reflecting same to [the hospital] prior to the effective date of the [c]ontract."
The state attached the following documents as exhibits to its third party complaint: (1) a copy of the contract; and (2) a copy of a certificate of liability insurance that names ISS as an insured party. See Practice Book § 10-29.
At the time of the alleged trip and fall accident, the plaintiff was an employee of ISS and the contract was in full force and effect. Thus, under the contract, " the [s]tate is entitled to be defended by ISS and if the [s]tate is liable to the plaintiff, which the [s]tate denies, the [s]tate is entitled under the terms of the [contract] to [recover] and be indemnified by ISS to the full extent of any such liability and all expenses attendant thereto." Consequently, on approximately March 5, 2014, the state sent a letter to the vice president of ISS, Bonnie Maguire, demanding indemnification with respect to the plaintiff's claim, pursuant to the contract. Similarly, the state sent a letter to ISS' liability insurer, Liberty Mutual Insurance Company (insurer), notifying it of the plaintiff's claim and demanding that it defend the state in the present case, pursuant to the contract. Both ISS and the insurer have failed to indemnify and/or defend the state in connection with the present action. The state alleges that " [s]uch a failure is a breach of [ISS'] obligations under the [c]ontract to insure, indemnify, defend and save the [s]tate harmless in connection with the plaintiff's claims."
On May 29, 2015, ISS filed an amended answer and special defenses to the state's third party complaint. In the amended answer, ISS admitted, inter alia, the existence of the contract, the specifications of the contract with respect to indemnification and 'defending claims, and that the contract was in effect on the day that the alleged trip and fall accident occurred. However, it denied, inter alia, that the plaintiff was an employee of ISS at the time of the alleged trip and fall accident. ISS also denied that it is required to defend the state from the plaintiff's claim and that it must indemnify the state to the extent that the state is held liable for the plaintiff's alleged injuries. The state filed a reply to ISS' special defenses on May 10, 2016.
Subsequently, on January 6, 2017, ISS filed a motion for summary judgment as to both counts of the state's third party complaint. A memorandum of law accompanies ISS' summary judgment motion. In support of its motion, ISS submits the following documents: (1) uncertified excerpts from the transcript of the plaintiff's deposition testimony; (2) a copy of the contract; and (3) a copy of the state's third party complaint. On the same date, the state filed a motion for summary judgment as to both counts of its third party complaint. A memorandum of law accompanies the state's summary judgment motion. In support of its motion, the state submits the following documents: (1) a copy of the contract; and (2) uncertified excerpts from the transcript of the plaintiff's deposition testimony.
Although the deposition transcript excerpts are uncertified, they will be considered in assessing the propriety of summary judgment because ISS and the state have not objected to their submission. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006).
On February 21, 2017, the state filed a memorandum of law in opposition to ISS' motion for summary judgment. Similarly, on March 9, 2017, ISS filed an objection to the state's motion for summary judgment. Oral argument was heard at short calendar on May 8, 2017.
DISCUSSION
" 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." (Internal quotation marks omitted.) Al Dente, LLC v. Consiglio, 171 Conn.App. 576, 587, 157 A.3d 743 (2017). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." Mariano v. Hartland Building & Restoration Co., 168 Conn.App. 768, 777, 148 A.3d 229 (2016). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Brooks v. Powers, 165 Conn.App. 44, 56, 138 A.3d 1012 (2016).
ISS claims that it is entitled to summary judgment on both counts of the third party complaint. In support of this claim, ISS first argues that, under the contract, it is not required to indemnify, defend, and hold the state harmless from the plaintiff's claim. With respect to this point, ISS argues that the plaintiff's claim does not arise " in connection with the [c]ontract" because none of her job duties required her to be in the hospital's parking lot at the time of the alleged accident. According to ISS, the nexus between the plaintiff and the contract ceased to exist once the plaintiff completed her job duties. In other words, " where the plaintiff parked her car for the purpose of entering and exiting [the hospital] was completely outside the scope of the [c]ontract." Also in support of its claim, ISS further argues that, under the contract, it is not required to indemnify, defend, and hold the state harmless from the state's own acts or omissions. In this regard, ISS argues that the plaintiff has not alleged that ISS was negligent in any way; rather, the plaintiff's allegations of negligence exclusively relate to the state's acts or omissions.
In its motion for summary judgment and objection to the state's motion for summary judgment, ISS does not directly address the state's breach of contract claim. Consequently, only the state's summary judgment motion will be considered in determining whether summary judgment should enter on count two of the third party complaint.
On the other hand, the state claims that it is entitled to summary judgment on both counts of its third party complaint. In support of this claim, the state argues that, under the contract, ISS must indemnify, defend, and hold it harmless from the plaintiff's claim because the plaintiff's alleged injuries " arose out of and occurred in the scope of" her employment when she left her job with ISS at the hospital. With respect to this point, the state argues that " the scope of employment has been held to encompass the going to or departure from work." (Internal quotation marks omitted.) Consequently, the state argues that the plaintiff's claim falls within the ambit of the contract's indemnification provision. In further support of its claim, the state argues that ISS breached the contract by failing to indemnify and defend it against the plaintiff's claim. Specifically, the state argues that the contract requires ISS to indemnify, defend, and hold it harmless from any and all claims arising directly or indirectly in connection with the contract, and by failing to do so here, ISS breached the contract.
I
CONTRACTUAL INDEMNIFICATION
" Indemnification involves a claim for reimbursement in full from one on whom a primary responsibility is claimed to rest . . ." Valente v. Securitas Security Services, USA, Inc., 152 Conn.App. 196, 203, 96 A.3d 1275 (2014). " [T]he concept of indemnity usually involves an indemnitor, A, and an indemnitee, B, who enter into a contract whereby A agrees to indemnify B for any money B becomes legally obligated to pay to a third party." Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 149, 810 A.2d 259 (2002). " As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law." (Internal quotation marks omitted.) Finkle v. Urstadt Biddle Properties, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-60195123-S (May 22, 2015, Nazzaro, J.) (60 Conn.L.Rptr. 416, 418-19), .
" The law governing the construction of contracts is well settled." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008). It is axiomatic that " [a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . 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 . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity." (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 686, 697 A.2d 1137 (1997). " A contract is unambiguous when its language is clear and conveys a definite and precise intent . . . In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Meridian Partners, LLC v. Dragone Classic Motorcars, Inc., 171 Conn.App. 355, 364, 157 A.3d 87 (2017). " Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." McCook v. Whitebirch Construction, LLC, 117 Conn.App. 320, 328-29, 978 A.2d 1150 (2009), cert. denied, 294 Conn. 932, 987 A.2d 1029 (2010).
Turning to the present case, ISS and the state both submitted copies of the contract in support of their respective motions for summary judgment. It is undisputed that § 2(d)(i), of the contract provides in relevant part: " [ISS] shall indemnify, defend and hold harmless the [s]tate . . . from and against any and all: A) claims arising directly or indirectly, in connection with the [c]ontract, including the acts of commission or omission . . . of [ISS] . . . and B) liabilities, damages, losses, costs and expenses . . . arising, directly or indirectly, in connection with [c]laims, [a]cts or the [c]ontract . . ." (Emphasis added.)
Viewed in light of the principles of contract construction set forth previously in this memorandum, the language that is employed in § 2(d)(i), of the contract is unambiguous. First, " [i]n its ordinary and natural meaning, the word 'all' leaves no room for exceptions." (Citation omitted; internal quotation marks omitted.) Laudano v. General Motors Corp., 34 Conn.Supp. 684, 688, 388 A.2d 842 (App. Sess. 1977). Second, § 1(e), of the contract defines " claims" as, inter alia, " [all] actions [and] suits . . . at law or in equity, in any forum." Third, " indirect" means " not direct, " i.e., " deviating from a direct line or course, " or " not directly aimed at or achieved . . ." Merriam-Webster's Collegiate Dictionary (10th Ed. 1999). Fourth, a " connection" is a " causal or logical relation or sequence, " a " contextual relation or association, " or a " relationship in fact . . ." Id. Moreover, § 1(f), of the contract defines " contract" as " [t]his agreement . . . between [ISS] and [the hospital], including all of its terms and conditions . . ." In this regard, § 2, of the contract delineates the obligations of ISS, the gist of which is that ISS must render cleaning services at the hospital for the benefit of the Mate. Accordingly, the meaning of § 2(d)(i), of the contract is clear: ISS must indemnify and defend the state from legal actions that are causally, logically, contextually, or factually related to ISS' contractual obligation to clean the hospital--even if the relationship is not direct--without exception.
In support of its motion for summary judgment, ISS argues that it is not required to indemnify, defend, and hold the state harmless for the state's own acts of negligence. ISS' argument lacks merit. In Laudano v. General Motors Corp., supra, 34 Conn.Supp. 688, the Appellate Session of the Superior Court was confronted with the following contract language: " Seller agrees to indemnify and protect [b]uyer against all liabilities, claims or demands . . . growing out of the performance of this contract . . ." (Emphasis added; internal quotation marks omitted.) The court reasoned that " [t]here cannot be any broader classification than the word 'all.' . . . In its ordinary and natural meaning, the word 'all' leaves no room for exceptions." (Citation omitted; internal quotation marks omitted.) Id. On the basis of this expansive language, the court held that " [t]he plain meaning of the words employed in the contract fairly includes a promise to indemnify even the negligent indemnitee. There is no reason why more should be required to establish the unmistakable intent of the parties." Id. In the present case, the language of § 2(d)(i), of the contract is substantially similar to (or even broader than) the contractual language at issue in Laudano v. General Motors Corp., supra, 688, because, here, § 2 (d)(i), of the contract provides that ISS must indemnify, defend, and save the state harmless from " any and all . . . claims arising directly or indirectly, in connection with the [c]ontract . . ." (Emphasis added.) Thus, in accordance with Laudano v. General Motors Corp., supra, 688, § 2(d)(i), of the contract should be construed as obligating ISS to indemnify the state for claims that are predicated on the state's own acts of negligence. This conclusion is supported by § 2(d)(iv), of the contract, which provides in relevant part: " [ISS'] duties under this section shall remain fully in effect and binding in accordance with the terms and conditions of the [c]ontract . . . even where [ISS] is alleged or is found to have merely contributed in part to the [a]cts giving rise to the [c]laims or where the [s]tate is alleged or is found to have contributed to the [a]cts giving rise to the [c]laims ." Thus, § 2(d)(iv), of the contract contemplates that ISS' obligation to indemnify, defend, and hold the state harmless persists even where the state is allegedly negligent and such negligence gives rise to the underlying claim.
Next, it is necessary to assess the characteristics of the plaintiff's claim against the state to determine whether § 2(d)(i), of the contract--as construed--applies to the present case. This is because " the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 739, 95 A.3d 1031 (2014). In this regard, an indemnification claim " stands as of the time when those seeking indemnity have sustained the loss for which indemnity is sought." Cimino v. Yale University, 638 F.Supp. 952, 959 (D.Conn. 1986).
As discussed previously in this memorandum, in the amended complaint, the plaintiff alleges that, while she was on the hospital's premises, in the course of proceeding to her parked automobile, she tripped and fell on a piece of metal pipe or pole that was protruding from the cobblestone walkway. Moreover, in support of their respective motions for summary judgment, ISS and the state submitted transcript excerpts of the plaintiff's deposition testimony. According to the excerpts, the plaintiff testified that, on the date of the alleged accident, she was employed by ISS and was " leaving work at the end of [her] shift and walking to her car . . ." ISS and the state did not submit evidence that contradicted this testimony. Thus, it is undisputed that the plaintiff was an employee of ISS and was leaving the hospital after completing her work with ISS.
Given these circumstances, the plaintiff's claim is causally, factually, and contextually related to ISS' contractual obligation to clean the hospital. ISS' obligation to render cleaning services at the hospital pursuant to the contract was the very reason why the plaintiff was on the hospital's premises on the date of the alleged accident. A logical corollary of the plaintiff's presence at the hospital is her departure from the premises. Although the plaintiff's departure from the hospital is indirectly related to ISS' immediate task of rendering cleaning services at the hospital, this fact is immaterial under 2(d)(i), of the contract, which unequivocally covers " claims arising directly or indirectly, in connection with the [c]ontract . . ." (Emphasis added.) Accordingly, § 2(d)(i), of the contract applies to the present case. Therefore, it is concluded that the state's motion for summary judgment should be granted, and ISS' summary judgment motion should be denied, as to count one of the third party complaint.
II
BREACH OF CONTRACT
" 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.) CCT Communications, Inc. v. Zone Telecom, Inc., 324 Conn. 654, 667-68, 153 A.3d 1249 (2017). Regarding the last element, " [t]he general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed . . . The Restatement (Second) of Contracts divides a defendant's recovery into two components: (1) direct damages, composed of the loss in value to him of the other party's performance caused by its failure or deficiency . . . plus, (2) any other loss, including incidental or consequential loss, caused by the breach." (Citation omitted; internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn.App. 297, 303, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 942 A.2d 415 (2010). " It is incumbent on the party asserting either direct or consequential damages to provide sufficient evidence to prove such damages . . . Further, [w]hen damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Citation omitted; internal quotation marks omitted.) Id., 304.
Turning to the present case, in count two of the third party complaint, the state alleges, inter alia, that the failure of ISS and the insurer to defend the state against the plaintiff's claim amounts to a breach of the contract, and, consequently, " to provide the [s]tate with a defense from the Attorney General's Office, the [s]tate was forced to expend funds and continues to do so." Nevertheless, in support of its summary judgment motion, the state failed to submit evidence regarding the monetary value of the legal services provided by the Office of the Attorney General. Accordingly, the plaintiff has not carried its burden of proving damages with reasonable certainty. Therefore, it is concluded that the state's motion for summary judgment should be denied as to count two of the third party complaint.
See footnote 5 of this memorandum.
CONCLUSION
For the foregoing reasons, it is ordered that, with respect to count one of the third party complaint, the state's motion for summary judgment is granted and ISS' summary judgment motion is denied, and, as to count two of the third party complaint, the state's motion for summary judgment is denied.