Opinion
No. CV 085008382
March 19, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #122
The plaintiff, Sharon Viadella, commenced this action by service of process against the defendant/third-party plaintiff, Yankee Remodeler of New London, Inc., on August 4, 2008. She alleges the following facts in the one count complaint. On February 14, 2007, the plaintiff was walking down a walkway towards the entrance of her workplace, Electric Boat/General Dynamics in Groton. Electric Boat/General Dynamics had contracted with the defendant for the defendant to construct and install concrete slabs equipped with heating pads for the walkway. The plaintiff slipped and fell on ice that covered the walkway. Her resulting damages and injuries were caused by the defendant's negligence insofar that the construction of the walkway did not comply with the Connecticut State Building Code. The plaintiff lists seven specific examples of the defendant's negligence; one was the installation of "heating pads which were inadequate or nonfunctioning."
On November 2, 2009, the defendant filed a motion to implead the third party defendant, Emcor Services New England Mechanical, Inc., which was granted by the court, Martin, J., on November 17, 2009. The defendant served the third party defendant with the third party complaint on January 7, 2010. The third party complaint alleges that the defendant had contracted with the third party defendant for the third party defendant to install the heating pads that were part of the walkway. Count one of the third party complaint alleges that the third party defendant is liable for breach of contract because it failed to name the defendant as an "additional insured" on its general liability insurance policy in effect during the walkway's construction. Count two alleges that the third party defendant is liable for contribution and common-law indemnification because its negligence in installing the heating pads caused the plaintiff's damages and injuries.
The third party defendant filed a motion to strike count two of the third party complaint and an accompanying memorandum of law on January 29, 2010. The defendant filed its objection to the motion and an accompanying memorandum of law on March 1, 2010. The court heard the matter at short calendar on March 1, 2010.
DISCUSSION
"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." (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 complaint challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the . . . complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "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 in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
On the face of the motion, the third party defendant defines the ground as the defendant's "fail[ure] to state a cause of action as required." Practice Book § 10-41 provides: "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." "Simply stating that" a count "fail[s] to allege any facts that would indicate [that the] defendant is liable to [the plaintiff]" is not enough. Stuart v. Frieberg, 102 Conn.App. 857, 862, 927 A.2d 343 (2007). Failure to comply with Practice Book § 10-41 can make a motion to strike "fatally defective." (Internal quotation marks omitted.) Id., 860. However, the defendant has not objected to the motion on this basis. The court may therefore proceed in considering the motion in the form presented by the third party defendant. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991).
The third party defendant argues that the court should strike count two of the third party complaint because the defendant has neither met all four criteria for common-law indemnification nor established that the defendant and the third party defendant are "jointly bound" to pay the plaintiff's damages, which is a prerequisite for a contribution claim. The defendant argues in turn that the court should not grant the motion because the count alleges that the third party defendant's negligence caused the plaintiff's damages and injuries and therefore sufficiently states the defendant's common-law indemnification claim.
"[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others." (Internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42, 732 A.2d 767 (1999). The Supreme Court established the criteria for common-law indemnification in Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416, 207 A.2d 732 (1965): "In order to recover as indemnitees, these plaintiffs had to prove that Merberg was the party primarily liable . . . [which] in turn required them to prove that at the time of the accident (1) Merberg was negligent; (2) Merberg's negligence, rather than the negligence with which these plaintiffs were found chargeable, was the direct, immediate cause of the accident and the resulting injuries and death; (3) Merberg was in control of the situation to the exclusion of these plaintiffs . . . [and] (4) the plaintiffs did not know of Merberg's negligence, had no reason to anticipate it, and could reasonably rely on Merberg not to be negligent." (Citation omitted.) It has defined the standard for contribution as follows: "The right of action for contribution, which is equitable in origin, arises when, as between multiple parties jointly bound to pay a sum of money, one party is compelled to pay the entire sum. That party may then assert a right of contribution against the others for their proportionate share of the common obligation." Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 353, 586 A.2d 567 (1991).
On the issue of common-law indemnification, the parties specifically disagree over whether the third party defendant's alleged negligence was the "direct, immediate cause" of the plaintiff's slip and fall and whether the third party defendant "control[led] . . . the situation to the exclusion of" the defendant. Both the third party defendant and the defendant treat fulfillment of the former criterion as connected to fulfillment of the latter criterion. The third party defendant argues that the defendant must allege that the third party defendant had exclusive control over the whole walkway construction process, not just the heating pad installation, because the plaintiff's complaint lists seven specific examples of the defendant's alleged negligence, and not all seven involve the heating pad installation. The defendant argues in turn that the third party defendant misunderstands the plaintiff's complaint because the plaintiff alleges that the defendant was negligent in one or more of seven ways, not in all seven ways. The defendant further argues that its common-law indemnification claim is legally sufficient because it meets all four Kaplan criteria, including exclusive control, with respect to the heating pad installation, which alone may be the "situation" at issue.
"It is plausible to define exclusive control over `the situation' as exclusive control over the dangerous condition that gives rise to the accident." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997). Whether an indemnitor had exclusive control over a situation is generally a question of fact that should not be resolved on a motion to strike. Id., 704. "Nonetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third party complaint, any reasonable juror could find that the third party [defendant] had exclusive control of the situation. Under such circumstances, this issue becomes a question of law." Id., 705. Characterizing exclusive control as a question of law is proper when "the disagreement between the parties on this issue does not, upon close examination, turn upon any meaningful dispute about the alleged facts." Id. (parties did not meaningfully dispute alleged facts and court concluded that no reasonable juror could find that third party defendant liquor store had exclusive control over situation where third party defendant failed to clear sidewalk in front of liquor store, plaintiff customer walked on nearby sidewalk instead and defendant truck driver struck plaintiff).
In the present case, the defendant and the third party defendant dispute the actual cause of the plaintiff's slip and fall. The defendant's third party complaint alleges the following: the plaintiff considers the negligent heating pad installation to be one cause, if not the cause, of her slip and fall; the third party defendant exclusively controlled the installation and therefore may have directly and immediately caused the slip and fall; and the defendant reasonably expected the third party defendant not to be negligent in the installation. When construed in the manner most favorable to sustaining the third party complaint's legal sufficiency, the allegations "appear to state each essential element of primary negligence" and "fall within the specifications of negligence" made against the defendant in the original complaint. Cruz v. Periu, 40 Conn.Sup. 214, 216, 486 A.2d 666 (1984). The court agrees with the defendant that the third party defendant misunderstands the plaintiff's negligence allegation, which states that "[t]he injuries and damages suffered by the plaintiff . . . were caused by the negligence and carelessness of the defendant . . . in one or more . . . ways." (Emphasis added.) The defendant therefore need not meet all four Kaplan criteria with respect to each way the plaintiff alleges the defendant was negligent. Because the court currently cannot define the "dangerous situation" that gave rise to the plaintiff's slip and fall, it also cannot determine whether any reasonable juror would find that the third party defendant had exclusive control of the situation at issue. Exclusive control in the present case is therefore a question of fact and cannot be resolved in the present motion to strike.
The court is also unpersuaded by the third party defendant's argument that the defendant will not be able to meet the Kaplan criteria with respect to the heating pad installation because "the evidence will establish that [the third party defendant] completed the installation in October 2006 while [the defendant] was still in the process of completing the project, and the heating pad[s] [were] under the care, custody and control of . . . [the] plaintiff's employer." These alleged facts have not been pled by the defendant. "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the [movant]'s pleadings, the [nonmovant] must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). The third party defendant's argument therefore goes beyond the scope of what the court may consider in the present motion and will not factor into the court's decision.
The court furthermore will not address the third party defendant's argument about whether the count sufficiently states the defendant's contribution claim. "In the context of a motion to strike, the factual allegations of the count, and not the label placed on the count, are dispositive." Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.). We have already concluded that the count alleges the third party defendant's liability for common-law indemnification with legal sufficiency. "If any part of a count states a legally sufficient cause of action, then that count is not subject to a motion to strike." Hlavaceck v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. 324201 (March 6, 1996, Ballen, J.). Therefore, the legal sufficiency of the defendant's contribution claim is irrelevant to the court's decision on the present motion.
For the foregoing reasons, the court denies the third party defendant's motion to strike count two of the defendant's third party complaint.