Opinion
FBTCV136032960
12-15-2015
Daniel Williams v. City of Westport
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael P. Kamp, J.
Before the court are motions for summary judgment filed by the defendant/cross claim plaintiff City of Westport, and the defendant/cross claim defendant Environment One Corp. (Environment One).
FACTS
On January 31, 2013, the plaintiffs, Daniel and Stacey Williams, filed a seven-count complaint against the defendants, the City of Westport, Environment One, and Precision Castparts Corp. After several revisions to the complaint, the plaintiffs filed an amended complaint on December 12, 2013. In the amended complaint--the operative pleading in this case--the plaintiffs bring six counts against the defendants, Westport and Environment One, for damages arising from an alleged discharge of sewage onto the plaintiffs' property in Westport. The plaintiffs allege the following facts in support of their claim. On August 30, 2011, a water or sewer line that serviced the plaintiffs' property broke or became clogged and caused a discharge of refuse, filth, water and sewage onto, and into, the plaintiffs' home and property. Westport built or designed the system servicing the plaintiffs' property, and contracted with Environment One to build, maintain, or construct the system. The first four counts of the plaintiffs' amended complaint, brought in reliance on General Statutes § 52-557n, are against Westport. Counts one and three of the amended complaint sound in two separate theories of negligence, count two sounds in negligent infliction of emotional distress, and count four sounds in vicarious liability for the acts of Environment One, an agent, employee, or contractor of Westport. The fifth and sixth counts of the plaintiffs' amended complaint are against Environment One, and sound in negligence and negligent infliction of emotional distress, respectively. As a result of the combined negligence of the defendants, the plaintiffs allege that they have suffered and will continue to suffer property damage, a loss of income, a loss of value to their home, environmental expenses, emotional distress, and legal expenses.
The plaintiffs withdrew their action against Precision Castparts Corp. on March 27, 2013. This matter has been consolidated with a companion case, Safeco Ins. Co. v. Westport, CV-13-6036156-S, which names the same defendants in this action in addition to the defendant, Father and Son Plumbing and Heating, LLC (Father and Son).
General Statutes § 52-557n(a)(1)(A) provides, in relevant part, that " [e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . ."
The plaintiffs' first theory of negligence against Westport, pleaded in count one of the amended complaint, pertains to the way in which the system was designed and installed, and alleges that the damage suffered by the plaintiffs was caused by Westport's negligence in one or more of the following ways: (1) Westport negligently and carelessly constructed and maintained the system servicing the plaintiffs' home; (2) Westport neglected and omitted to inspect or repair the system; (3) Westport failed to warn the plaintiffs that the system may rupture, backup, or fail; (4) Westport used or allowed to be used defective parts in the construction of the system; (5) Westport failed to install back flow preventers as a part of the system; and (6) Westport failed to supervise, oversee, or monitor its contractor, Environment One. The plaintiffs' second theory of negligence against Westport, contained within count three of the amended complaint, pertains to Westport's negligence in representing to the plaintiffs that Environment One had accepted responsibility for the spill, and in failing to secure an appropriate agreement which would have reduced Environment One's alleged acknowledgement of responsibility to writing.
On March 19, 2014, Westport filed its answer and special defenses to the plaintiffs' amended complaint, and a three-count cross claim against Environment One. The first count of Westport's cross claim, titled " contractual indemnity and defense, " seeks a declaratory judgment that Environment One is obligated to both defend and indemnify Westport against the plaintiffs' claims; the second alleges breach of contract for Environment One's alleged failure to indemnify and defend Westport; and the third alleges common-law indemnification. In support of its cross claim, Westport alleges the following facts. On April 2, 2010, Westport and Environment One executed a contract (pump agreement), whereby Environment One agreed to sell, and Westport agreed to purchase, a number of " low-pressure semi-positive displacement progressing cavity grinder pump units." Paragraph 10 of the pump agreement (indemnity provision) provides that Environment One will indemnify Westport for any damages that result from any act or omission by Environment One in performance of Environment One's obligations under the pump agreement. In this case, the plaintiffs constructed a lateral line across the plaintiffs' property, which extended from the sewer curb valve located at the plaintiffs' property line to the plaintiffs' residence, in order to hook up to the Westport sewer line, and in so doing, installed a pump unit that was supplied by Westport but designed and manufactured by Environment One. The damages suffered by the plaintiffs were caused by the mechanical failure of a hose clamp within the Environment One pump. Despite Westport's demand for defense and indemnity upon Environment One, Environment One has failed to indemnify Westport against the plaintiffs' action. Environment One filed its answer and special defenses to Westport's cross claim on February 13, 2015.
The pump supplied by Environment One in this case, a type of " low-pressure semi-positive displacement progressing grinder pump unit, " is a pump used in connection with a sewer system for residential applications, according to the user manual submitted as an exhibit by Environment One. A relevant excerpt from the user manual reads: " In order to provide [a homeowner] with suitable wastewater disposal, [the] home is served by a low pressure sewer system. The key element in this system is an Environment One grinder pump. The tank collects all solid materials and effluent from the house. The solid materials are then ground to a small size suitable for pumping as a slurry with the effluent water. The grinder pump generates sufficient pressure to pump this slurry from your home to the wastewater treatment plant receiving line and/or disposal plant."
According to the evidence submitted by the parties, the plaintiffs employed Father and Son, a contractor, to complete the sewer connection from the plaintiff's house to the city sewer curb valve located at the end of the plaintiffs' property. Part of the work performed by Father and Son involved the installation of the Environment One pump.
In a letter sent from Westport to Environment One, included as exhibit C to Westport's motion, Westport informed Environment One that it was " tender[ing] defense of the claim to Environment One pursuant to its indemnification obligations set forth in paragraph 10 of the General Conditions of the Agreement."
On April 1, 2015, Westport filed a motion for summary judgment on the first count of its cross claim, on the ground that there is no genuine issue of material fact as to whether Environment One is contractually obligated to indemnify Westport in the event that the jury determines that the plaintiffs' losses were caused in whole or in part by a negligent or willful act or omission by Environment One, and therefore, as a matter of law, Westport is entitled to a declaratory judgment regarding contractual indemnification. Westport's motion is accompanied by a memorandum of law and ten exhibits. In response, Environment One filed a cross motion for summary judgment on June 15, 2015, against all three counts of Westport's cross claim on the grounds that (1) as a matter of law, a defendant in a product liability action cannot file a cross claim against a co-defendant for common-law indemnity; (2) Westport's common-law indemnity claim fails because Westport cannot prove that Environment One had exclusive control over the condition that allegedly caused the plaintiffs' injuries; (3) the indemnity clause in the agreement between Environment One and Westport does not require Environment One to indemnify Westport for injuries caused to the plaintiffs by Westport's own negligence; and (4) regardless of the terms of the indemnity clause in the agreement between Westport and Environment One, the clause is void as a matter of law. Environment One's motion is accompanied by a memorandum of law and a number of exhibits. Westport filed an " objection to Environment One's cross motion" on June 26, 2015, to which Environment One filed a reply memorandum on July 8, 2015. The parties' arguments regarding their motions were heard at short calendar on August 17, 2015.
Westport attached the following exhibits in support of its motion: (1) a sworn affidavit of Bryan Thompson, the Coordinator for the Water Pollution Control Authority for Westport, dated August 29, 2014; (2) a sworn affidavit of Stephen Edwards, the Director of Public Works for Westport, dated March 14, 2014; (3) a second sworn affidavit of Thompson, dated March 31, 2015; (4) a signed purchase order and release letter executed between Environment One and Westport, dated November 23, 2010; (5) a notice to property owners within the Saugatuck Shores sanitary sewer project area, dated January 11, 2011; (6) a sworn affidavit of Gail Kelly, Assistant Town Attorney for Westport, dated March 31, 2015; (7) an agreement with accompanying contract documents, executed between Westport and Environment One, dated April 2, 2010; (8) a certificate of liability insurance for a policy covering Environment One between October 1, 2009, and October 1, 2010; (9) a letter from Westport to Environment One, dated February 19, 2013; and (10) a letter from Westport to Environment One, dated March 18, 2015.
Several of the exhibits attached by Environment One were duplicates of those provided by Westport, and the court does not relist those duplicates. Environment One attached the following additional exhibits in support of its motion: (1) a sworn affidavit of Stephen Edwards, the Director of Public Works for Westport, dated March 14, 2014; (2) responses by Environment One to the interrogatories and requests for production of the plaintiffs, dated October 30, 2013; (3) excerpts from the sworn deposition of Ioannis Papakosmas, the owner and sole member of Father and Son, taken May 13, 2015; (4) excerpts from the responses of Father and Son to the plaintiffs' first set of interrogatories, dated December 16, 2013; (5) the sworn affidavit of Thomas Lyons, an attorney for Environment One, dated June 15, 2015; (6) installation instructions and warranty information for a model WH101F and WR101F grinder pump manufactured by Environment One, marked " received" by Westport November 23, 2010; and (7) excerpts from the sworn deposition of Thompson, taken May 14, 2015.
DISCUSSION
" In any action . . . any party may move for a summary judgment as to any claim or defense . . . These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44. " [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). The trial court has discretion in determining whether to consider documentary evidence submitted by a party in support of or in opposition to a motion for summary judgment. See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012) (" Whether a trial court should consider documentary evidence submitted by a party in relation to a motion for summary judgment presents an evidentiary issue to which we apply an abuse of discretion standard").
" 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
Westport moves for summary judgment as to count one of its cross claim, which alleges that Westport is entitled to a declaratory judgment that Environment One is contractually obligated to indemnify and defend Westport against the plaintiffs' action. Westport argues that it has put forth evidence which demonstrates that (1) under the terms of the pump agreement, Environment One agreed to provide Westport with 350 pump units; (2) by the terms of the indemnity provision, Environment One agreed to indemnify and hold Westport harmless for all claims, damages, losses, and expenses arising from the performance of the work described in the pump agreement; (3) the injuries suffered by the plaintiffs, and the claims brought against Westport for the plaintiffs' injuries, arise from the failure of one of the pumps supplied to Westport by Environment One under the terms of the pump agreement; and (4) Westport has incurred, and will continue to incur, expenses related to the defense of the plaintiffs' claim. Therefore, Westport asserts, there is no genuine issue of material fact with regard to Westport's right to be indemnified by Environment One and a declaratory judgment should issue in favor of Westport.
The relevant language appears in paragraph 10 of the pump agreement, which is titled " INDEMNIFICATION" and reads: " The Contractor will indemnify and hold harmless the Owner and the Engineer and their agents and employees from and against all claims, damages, losses and expenses including attorneys fees, arising out of, or resulting from, the performance of the Work, provided that any such claims, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, including the loss of use resulting therefrom; and is caused in whole or in part by an negligent or willful act or omission of the Contractor, and/or Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable."
In opposition to Westport's motion, Environment One moves for summary judgment as to all three counts in Westport's cross claim. Environment One opposes Westport's claims for a declaratory judgment and breach of contract regarding Environment One's obligation to indemnify Westport by arguing that (1) the indemnity provision does not require Environment One to indemnify Westport for Westport's own negligence, and (2) even if the indemnity provision so required, General Statutes § 52-572k renders the indemnity clause void as against public policy and therefore, Westport's cross claims for a declaratory judgment and breach of contract must fail as a matter of law. Against Westport's claim for common-law indemnity, Environment One argues that (1) because the plaintiff's claims implicate a defective product, this case falls within the purview of the Connecticut Products Liability Act (CPLA), General Statutes § 52-572m et seq., and therefore, the remedies provided under that act are the exclusive means by which a party can seek redress, and (2) that because the plaintiffs' harm was caused, at least in part, by Westport's own failure to install a secondary check valve in the system which serviced the plaintiffs' property, Environment One did not have exclusive control over the injury-causing condition, and therefore, as a matter of law, there is no genuine issue of material fact and Environment One is entitled to judgment as a matter of law regarding Westport's common-law indemnity claim.
General Statutes § 52-572k(a) provides that " [a]ny 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 including moving, demolition and excavating connected therewith, 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 negligence of such promisee, such promisee's agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by a licensed insurer."
In reply, Westport asserts that the language in the indemnity provision referring to " any and all claims" is sufficient to encompass any claim asserted against Westport " regardless of whose negligence is responsible for the claim, " and § 52-572k does not apply to the pump agreement because the legislature's prohibition against indemnity clauses in § 52-572k pertains only to those clauses appearing in construction contracts, and the pump agreement is clearly one for the sale of goods and not construction. Further, Westport argues that a cursory reading of the plaintiffs' complaint demonstrates that this case is not confined to the constraints of a product liability action. In response, Environment One reiterates its prior arguments, asserts that Westport misquotes the language of the indemnity provision, and argues that the clear and unambiguous language of the indemnity provision does not obligate Environment One to indenmify Westport. The court will address the parties' motions for summary judgment in turn.
I. Westport's Motion for Summary Judgment as to Count One of its Cross Claim
While the parties dispute whether the indemnity provision obligates Environment One to indemnify Westport, the parties' arguments do not address the portions of count one in which Westport claims Environment One is obligated to defend Westport against the plaintiffs' action, despite the fact that Westport's cross claim seeks a declaratory judgment as toEnvironment One's obligation to both indemnify and defend Westport. Since Westport's claims for a declaratory judgment regarding contractual indemnity implicate the court's subject matter jurisdiction, the court will address Westport's claims regarding indemnity and defense separately, despite the fact that they are pleaded within the same count. For reasons discussed in the following paragraphs, the court will also address portions of the second count of Westport's cross claim, which are impacted by the court's subject matter jurisdiction.
As discussed further in part IB of this memorandum, the parties' arguments treat the duty to indemnify and the duty to defend as the same obligation, but these duties are separate in both scope and obligation.
The following allegations from count one of Westport's cross claim illustrate this point. Paragraph 13 reads that " [p]ursuant to Section 10 of the [pump agreement's] Terms and Conditions, Westport is entitled to be held harmless by [Environment] One and to be indemnified by [Environment] One . . . [and Environment] One shall defend any suit brought against Westport and incur all expenses incurred in the defense of the plaintiffs' action, " paragraph 14 asserts that " Westport has made a demand for defense and indemnity upon [Environment] One, " and paragraph 16 declares that " Westport seeks a declaratory judgment that [Environment] One is contractually obligated to indemnify Westport and hold Westport harmless and, in connection therewith, defend Westport in the [plaintiffs'] [a]ction."
A. Westport's Claim for a Declaratory Judgment Regarding Environment One's Duty to Indemnify
The portions of count one of Westport's cross claim which seek a declaratory judgment regarding Environment One's contractual obligation to indemnify Westport are not ripe, and must be dismissed for lack of subject matter jurisdiction. " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction . . . [T]he rationale behind the ripeness requirement is to prevent the courts . . . from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent [on] some event that has not and indeed may never transpire . . . [R]ipeness is a sine qua non of justiciability . . ." (Citations omitted; internal quotation marks omitted.) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013). When portions of a single count within a complaint implicate a court's subject matter jurisdiction, our Appellate Court has permitted the individual dismissal of the offending portions instead of the entire count. See Paragon Construction Co. v. Dept. of Public Works, 130 Conn.App. 211, 221 n.10, 23 A.3d 732 (2011); see also Harmon v. University of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV-15-67056506-S (October 7, 2015, Peck, J.) (" [W]here a motion to dismiss implicates subject matter jurisdiction, the court may dismiss portions of a complaint, including individual paragraphs within a count" [internal quotation marks omitted]).
" Our Supreme Court has stated that a declaratory judgment action commenced under General Statutes § 52-29 provides a valuable tool by which litigants may resolve the uncertainty of legal obligations . . . The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances . . . A declaratory judgment action is not, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies . . . Invoking § 52-29 does not create jurisdiction where it would not otherwise exist." (Footnote omitted; internal quotation marks omitted.) Hamilton v. United Services Auto Ass'n, 115 Conn.App. 774, 779, 974 A.2d 774, cert. denied, 293 Conn. 924, 980 A.2d 910 (2009). Our Appellate Court's decision in Hamilton is applicable to the present case.
In Hamilton, the plaintiff brought two actions against an insured and his insurer. The first action, a separate proceeding not before the Hamilton court, was against the insured and alleged negligence and negligent infliction of emotional distress for harm caused by the insured's alleged sexual abuse of the plaintiff, while the second action, before the court and against the insurer, sought a declaratory judgment that the insurer was obligated to indemnify and defend its insured in the first action. The trial court dismissed the plaintiff's declaratory judgment action against the insurer on the ground that the trial court lacked subject matter jurisdiction because the plaintiff's claim for a declaratory judgment was unripe, and the plaintiff appealed. Id., 779. The court affirmed the trial court's decision to dismiss the plaintiff's declaratory judgment action, " conclud[ing] that [the plaintiffs] declaratory judgment action is not ripe for adjudication because any claim that the plaintiff may have against the defendant [insurer] is contingent on her prevailing in the [action against the insured], which has not yet been adjudicated . . . When the plaintiff filed this action, her claim against the defendant [insurer] was, and still is, a mere possibility. Until there has been a judicial determination that [the insured] is liable to the plaintiff [in the related negligence action], the question of whether the defendant [insurer] is obligated to provide insurance coverage in this declaratory judgment action is a hypothetical one." Id., 782. Thus, the court held that " in the declaratory judgment action before us, the allegations in the [plaintiff's first] action are known, but the evidence that the plaintiff will present in her effort to prove those allegations and the jury's findings are not. Until the evidence is known, as well as the jury's verdict with respect to those allegations, it is not possible to determine whether the [insurer] is obligated to indemnify [its insured]." Id., 785 .
The insurer had disclaimed coverage of the Hamilton plaintiff's claims against its insured, which prompted the plaintiff to file the second action, which sought a declaratory judgment, against the insurer.
To better illustrate when an action for a declaratory judgment becomes ripe, the Hamilton court contrasted the unripe declaratory judgment action brought by the plaintiff in Hamilton with the ripeness of the defendant's action before the court in St. Paul Fire & Marine Ins. Co. v. Shernow, 22 Conn.App. 377, 577 A.2d 1093 (1990). In St. Paul, the Hamilton court explained, a trial was held in which an insurer defended its insured against the plaintiffs' claims pursuant to its obligations under the insured's policy, although the insurer reserved its rights on the question of its obligation to indemnify the insured, in the event liability attached, given the type of claims asserted by the plaintiff. Hamilton v. United Services Auto Ass'n, supra, 115 Conn.App. 783. After the jury in St. Paul had returned a verdict in favor of the plaintiff, the trial court ordered the verdict set aside, which caused the plaintiff to file an appeal. Id. In response to the plaintiff's appeal, the insurer brought a declaratory judgment action to determine its obligation to indemnify its insured in the event that the plaintiff's verdict was reinstated. Id., 783-84. The trial court dismissed the insurer's declaratory judgment action as unripe, reasoning that the action was still on appeal and that it was impossible to determine from the jury verdict whether the jury had determined if the insured's conduct fell within the terms of his insurance policy, but the Appellate Court reversed the dismissal. Id., 784. In so doing, the " court determined that [the trial court judge] had sufficient facts from which he could have determined whether the [insured's] actions were covered by his insurance policy [because] [t]he complaint of the [insured's] victim, and the evidence presented at trial clarified [the plaintiff's] claims, and the jury clearly found in [the plaintiff's] favor." Id., 785. In other words, the court determined that liability of the insured had already been established, and thus, it was not premature for the court to determine whether the insurer had an obligation to indemnify under the policy, and further, that it was possible to do so given that the relevant evidence had already been placed before the court by way of the concluded trial.
The contrast between an unripe and ripe declaratory judgment action explained by the court in Hamilton highlights the unripeness of Westport's claim for a declaratory judgment regarding Environment One's indemnity obligations. The plaintiffs' action alleges the liability of Environment One and Westport for their injuries under a variety of theories, but while the potential exists for Westport to be held liable to the plaintiffs, that determination has not been made by a factfinder. Any obligation Environment One would have to indemnify Westport would be predicated on the dual determination that Westport is liable to the plaintiff, and that the source of Westport's liability falls within the contractual provisions negotiated between Environment One and Westport. Just as our Supreme Court has held, in the insurance context, that " the duty to indemnify arises only if the evidence adduced at trial establishes that the conduct actually was covered by the policy"; DaCruz v. State Farm Fire and Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004); it can be said here that Environment One's duty to indemnify will arise only if the evidence adduced at trial establishes Westport's right to be indemnified under the terms of the indemnity provision. At this stage in the proceedings, even when the evidence submitted by Westport is considered, it is not clear that a duty for Environment One to indemnify Westport will arise.
Namely, that the injuries suffered by the plaintiffs were " caused in whole or in part by [a] negligent or willful act or omission of" Environment One, and not some other cause that would be attributable solely to Westport or another actor.
Westport has offered evidence to suggest that the pump manufactured by Environment One was the cause of the plaintiffs' injuries. For example, Westport has submitted the sworn affidavit of Stephen Edwards, the Director of Public Works for Westport, whereby Edwards opines that " [b]ased on a field inspection conducted by the Town of Westport . . . it was determined that the damage allegedly sustained by the plaintiffs was not a result of any break or clog in the main lines. The alleged damages were the result of the mechanical failure of a hose clamp on the Environment One pump that the plaintiffs installed on their property." Westport also submitted the sworn affidavit of Bryan Thompson, the Coordinator for the Water Pollution Control Authority for Westport, in which Thompson similarly opines that he " inspected the [Environment One pump] and determined that a hose clamp became detached from the pitless well adapter on the pump's discharge line, after the internal check valve built into the pump. This failure allowed effluent to enter back into the pump chamber and eventually into the [plaintiffs'] residence." These statements, while probative, do not support a finding that, as a matter of law, the failure of the Environment One pump, and not some other act by Westport, was the cause of the plaintiffs' injuries. The plaintiffs also allege that the negligent design of the system servicing their home was a cause of their injuries, and Westport's employees admit in deposition testimony, included by Environment One as an exhibit to its cross motion, that despite the fact that Westport's personnel were aware of Environment One's recommendation to install a " secondary check valve, " this recommendation was not followed, nor was the recommendation passed along to the plaintiffs. " Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). In this case, it will be for the jury to determine whether Westport should have warned the plaintiffs about the potential for a system backup, or recommended the install of a backup clamp, and whether Westport's failure to do so was the cause of, or a contributing factor to, the plaintiffs' injuries. Accordingly, any ruling from the court, at this stage, on Environment One's indemnity obligations to Westport under the indemnity provision would be premature.
The plaintiffs have also alleged other theories of liability besides those discussed, the court merely uses these particular allegations as an illustration of a genuine issue of material fact that cannot be resolved by the court at the summary judgment stage.
B. Westport's Claim for a Declaratory Judgment Regarding Environment One's Duty to Defend
While Westport's claims for a declaratory judgment regarding indemnification are unripe, the same cannot be said for the portions of count one in Westport's cross claim pertaining to Environment One's obligation to defend Westport against the plaintiffs' action, because the duty to defend arises earlier than the duty to indemnify. In the context of a contractual relationship between an insurer and an insured, our Supreme Court has " consistently held that the duty to defend is broader than the duty to indemnify . . . An insurer's duty to defend is triggered if at least one allegation of the complaint falls even possibly within the coverage . . . Indeed, [i]t is well established . . . that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings alleged a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered . . . The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage . . . [W]hile the duty to defend depends only on the allegations made against the insured, the duty to indemnify depends upon the facts established at trial and the theory under which judgment is actually entered in the case . . . Thus, the duty to defend is triggered whenever a complaint alleges facts that potentially could fall within the scope of the coverage." (Citations omitted; emphasis in original; internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 804-05, 67 A.3d 961 (2013). While the Capstone court was explaining the duty to defend in an insurance relationship, the same principles can be applied to a party's obligations to defend under a contract provision. See, e.g., Korbusieski v. CHK-Waterbury Associates, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-06-5001916-S, (August 29, 2008, Roche, J.) (" It is clear from the plain language of the lease that [the defendant landlord] intended to defend and indemnify [the defendant tenant] from claims of whatever nature arising from the failure . . . to perform its agreements under the lease . . . Our Supreme Court has recognized a distinction between a duty to defend and a duty to indemnify. It is beyond dispute that [a] duty to defend, [is] much broader in scope and application than [a] duty to indemnify").
The plaintiffs, by way of their amended complaint, have alleged that their injuries were caused, at least in part, by Westport's use of defective parts in the system which serviced the plaintiffs' property. Given that the indemnity provision could potentially cover liability incurred by Westport due to Environment One's failure to supply working pump units for use on properties like the one owned by the plaintiffs, it is reasonable for the court to conclude that the duty for Environment One to defend Westport has been triggered in the event that such a duty can be proven by Westport. Nevertheless, Westport has not presented evidence demonstrating that it is entitled to summary judgment regarding its claim for a declaratory judgment that Environment One is obligated to defend Westport against the plaintiffs' action.
As an example, in the first count, paragraph 6, subsection e, of the plaintiffs' amended complaint, the plaintiffs allege negligence against Westport " [i]n that [Westport] used or allowed to be used defective parts such as clamps or hoses to be installed as part of the sewage/water main system."
Westport argues that the language of the indemnity provision is " clear unequivocal language, " but this argument is unpersuasive. The language within the indemnity provision speaks of Environment One's obligation to " indemnify and hold harmless . . . from and against all claims, damages, losses and expenses including attorneys fees, arising out of, or resulting from, the performance of the [w]ork, " but the pump agreement is silent as to any obligation for Environment One to defend Westport. " If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law . . . When the language of a contract is ambiguous, [however] the determination of the parties' intent is a question of fact . . ." (Internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 8, 35 A.3d 177 (2011). Environment One's duty to defend does not arise from the plain language of the indemnity provision, and Westport has not offered any other evidence that would allow the court to determine, at the summary judgment stage, that the parties intended for Environment One to bear that obligation. Therefore, a genuine issue of material fact exists as to whether the parties intended to obligate Environment One to defend Westport under the terms of the indemnity provision or otherwise.
If anything, the plain language of the indemnity provision cuts against Westport's argument that Environment One has an obligation to defend Westport under the pump agreement. In Vibert v. Board of Education of Regional School District Number 10, 260 Conn. 167, 174-75, 793 A.2d 1076 (2002), our Supreme Court interpreted " protect and save harmless" language as indemnification language in a variety of statutory provisions. At issue in Vibert was whether the board of education had a duty to defend, rather than a duty to indemnify, teachers who were subject to civil action. Id., 172-75. The court referenced General Statutes § 10-235(a), a statute that requires, in relevant part, that " [e]ach board of education shall protect and save harmless . . . any teacher . . . from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence" and noted that " [t]his court previously has stated that § 10-235(a) is an indemnification provision." Vibert v. Board of Education of Regional School District Number 10, supra, 260 Conn. at 172. The plaintiff, however, sought to import a duty to defend into the statutory scheme by reference to § 10-235(b), which the court quoted as providing, in relevant part, that " [i]n the event [that a] . . . teacher . . . has a judgment entered against him for a malicious, wanton or willful act in a court of law, [the] board of education . . . shall be reimbursed by such . . . teacher for expenses it incurred in providing such defense and shall not be held liable to such . . . teacher . . . for any financial loss or expense resulting from such act." (Internal quotation marks omitted.) Vibert v. Board of Education of Regional School District Number 10, supra, 260 Conn. at 175 . The Vibert court rejected the plaintiff's argument by reasoning that " [t]he indemnification required pursuant to the first sentence specifically includes legal fees and costs . . . Thus, it is apparent from the clear language of the statute that the legislature intended to require a board of education to 'protect and save harmless, ' that is, to indemnify, a teacher for legal expenses . . . the plaintiff would have us read the imposition of a broader duty to defend into [the statute] by virtue of the last sentence of subsection (b). This is an untenable interpretation of the statute because a duty to indemnify for attorneys fees cannot coexist with a duty to defend: it would be impossible for a board of education to indemnify a teacher for attorneys fees if the board of education already has provided the teacher with counsel." (Citation omitted; internal quotation marks omitted.) Id., 176. Although the Vibert court was conducting a statutory analysis and rested its holding, in part, on principles of statutory construction, its reasoning would appear to apply to the contract language at issue in the present case, given that the indemnity provision uses " indemnify and hold harmless" language and provides for the reimbursal of attorneys fees to Westport in the event that Westport's liability to the plaintiffs falls within the purview of the indemnity provision.
C. Westport's Claim for Breach of Contract Against Environment One
In count two of its cross claim, titled " Breach of Contract--Failure to Indemnify and Defend, " Westport alleges that it has suffered damages because " Environment One has breached the [pump agreement] in that it has failed to hold Westport harmless, and indemnify and defend Westport in the [plaintiffs'] [a]ction." For the same reasons discussed in the previous two sections, Westport's claim for breach of contract based on Environment One's failure to indemnify is not yet ripe because Westport has not incurred any liability, and a claim for indemnification must be based on a prior determination of liability. See, e.g., Amoco Oil Co. v. Liberty Auto and Electric Co., 262 Conn. 142, 150-51, 810 A.2d 259 (2002) (" it has been understood for more than 140 years . . . that a loss in the context of indemnity is the payment that discharges a liability. For example, in discussing a bond of indemnity, which is referred to as an agreement to indemnify against loss only, we stated that it gives no cause of action until the petitioner is damnified, by being obliged to pay some [e]ndorsement for which he has made . . . This event has not yet happened; no payment has been made, and no damage has been suffered by the petitioner; and hence there is no breach of the bond or cause of action upon it" [emphasis in original; internal quotation marks omitted]). To the extent that portions of count two allege breach of contract based on Environment One's alleged failure to defend Westport against the plaintiffs' action, those claims are ripe, and they remain viable.
II. Environment One's Motion for Summary Judgment as to Westport's Cross Claim
Environment One argues that it is entitled to summary judgment against all three counts of Westport's cross claim on a variety of grounds. To the extent that Environment One challenges the first two counts of Westport's cross claim on the grounds that there are no genuine issues of material fact as to whether Environment One had exclusive control over the injury causing condition, or that, as a matter of law, Westport's own negligence caused the plaintiff's injuries thereby relieving Environment One of any contractual obligation to indemnify Westport, these arguments are not persuasive and are contradicted by the evidence before the court. As discussed in the previous paragraphs, genuine issues of material fact exist as to what caused the plaintiffs' injuries, and by extension, which defendant had control over the injury causing condition. The court will address the parties' arguments regarding the application of General Statutes § 52-572k to the pump agreement, and whether the exclusivity provision of General Statutes § 52-572n(a) precludes Westport's claim for common-law indemnification, in turn.
A. The Application of General Statutes § 52-572k to the Pump Agreement
Environment One asserts that it is entitled to summary judgment on the first two counts of Westport's cross claim, on the ground that the indemnity provision is against public policy and void because the pump agreement was made in connection with or collateral to the construction contract made by Westport to construct the public portion, and the construction contract made by the plaintiffs to construct the private portion of the sewer system that serviced the plaintiffs' property. Therefore, Environment One reasons, the indemnity clause runs afoul of the prohibition on indemnity provisions under § 52-572k. In reply, Westport asserts that the legislative history of § 52-572k supports the conclusion that the statute was not meant to apply to the sale of goods, but rather, only to those construction contracts which relieve a person from liability resulting from his or her own negligence, and that since the pump agreement is a sales contract, § 52-572k does not apply. In response, Environment One argues that the plain language of § 52-572k controls the statute's application, and the indemnity provision in the pump agreement meets the express criteria under the statute. The court is not persuaded that § 52-572k applies to the pump agreement in this case.
Our Appellate Court has implied that § 52-572k is to be construed narrowly, so as to apply only to those contracts involving construction. " The legislature, in specifically outlawing hold harmless agreements in the construction industry, showed an intention that such a practice not be deemed against public policy in other situations, for had the legislature intended to outlaw all such provisions as against public policy, it could have said so." Burkle v. Car and Truck Leasing Co., Inc., 1 Conn.App. 54, 58, 467 A.2d 1255 (1983); see also Royal Indemnity Co. v. Terra Firma, Inc., 50 Conn.Supp. 563, 575, 948 A.2d 1101 (2006) (" In a somewhat different context, the Appellate Court indicated that § 52-572k has a somewhat narrow target, stating that the 'arrangement . . . to share the risks and the obligation of insuring the . . . site does not fit the description of an agreement to hold harmless or to indemnify'"). While no appellate authority has addressed the required showing to bring an agreement within the bounds of § 52-572k, decisions from our Superior Court have held that " § 52-572k, as amended, provides that hold harmless clauses are against public policy in certain construction contracts. [The statute] bars an indemnification agreement if these requirements are met: (1) the agreement must be entered in connection with or collateral to a construction contract; (2) the agreement must indemnify the promise[e] for damages arising out of bodily injury to persons or damage to property; and (3) the damages must be caused by or result from the sole negligence of the promisee." (Internal quotation marks omitted.) Dotson v. D.A.'s Home Improvement and Landscaping, Inc., Superior Court, judicial district of New Haven, Docket No. CV-00-0436972-S, (November 5, 2002, Arnold, J.); accord Courter v. Becker, Superior Court, judicial district of New London, Docket No. CV-96-0537716-S (April 27, 1998, Handy, J.) (22 Conn. L. Rptr. 166). " Trial courts holding that [§ 52-572k] bars indemnification agreements have done so only where the agreements concerned a contract for construction services." Courter v. Becker, supra, 22 Conn. L. Rptr. 167, (collecting cases). In a contract for construction services, " [w]hile [a party to the contract] may not seek indemnification for its sole negligence [under § 52-572k], it may seek indemnification otherwise." " Construction projects involve a high risk of injury. This statute encourages contractors to be concerned with safety, by piercing the shield of indemnity." Dunn v. F & J Construction Corp., Superior Court, judicial district of New London, Docket No. 51-24-64, (January 9, 1991, Axelrod, J.). There are two fallacies in Environment One's argument that, as a matter of law, § 52-572k voids the indemnity provision; namely, the pump agreement is not a construction contract, and even if it was, the indemnity provision, by its terms, does not indemnify Westport for its sole negligence.
The court faced a similar set of facts in Courter, where the plaintiff was injured while operating a rock crusher machine, and brought an action against the defendants, the owner of the rock crusher, Ace, and the company that initially leased the equipment, Becker. Courter, supra, 22 Conn. L. Rptr. 166. Becker filed a third-party complaint against a subsequent lessor, Atlantic, claiming indemnification for all damages and costs arising from the plaintiff's action pursuant to an oral lease and indemnification agreement Becker had with Atlantic. Id. Atlantic moved for summary judgment against Becker's third-party complaint, alleging that § 52-572k's prohibition against indemnity clauses in construction contracts barred Becker from seeking indemnification. Id., 167. The court disagreed, reasoning that " [t]he agreement in the present case [concerning the lease of the rock crusher] was not a contract for, or in connection with, construction services. Although the rock crushed by the leased machine would ultimately be used to construct a parking lot, Atlantic did not agree to perform any construction services for Ace and Becker. Rather, Atlantic merely leased the rock crusher machine from Ace and Becker. Neither the plaintiff's nor Atlantic's intended use for the crushed rock involved Ace or Becker." Id.
The same reasoning employed by the court in Courter is applicable to the present case, and it cannot be said that, as a matter of law, the pump agreement is a construction contract. Environment One and Westport agreed to the sale and purchase, respectively, of grinder pumps via the terms of the pump agreement. Neither Environment One nor Westport agreed to perform any construction services under the terms of the pump agreement. The fact that the grinder pumps supplied under the pump agreement were ultimately used in a construction project, which involved the plaintiffs and a third party, does not transform the pump agreement into a contract for construction.
Even if it could be said that the pump agreement was entered in connection with or collateral to a construction contract, by its terms, the indemnity provision does not seek to indemnify Westport for its sole negligence. The indemnity provision only obligates Environment One to indemnify Westport in the event that an injury " is caused in whole or in part by an negligent or willful act or omission of [Environment One], " and does not, by its plain terms, relieve Westport of any liability that arises solely from Westport's own negligence. Only those indemnity provisions which appear in construction contracts, and which seek to relieve a promisee from liability arising from the promisee's sole negligence, fall within the bounds of § 52-572k. Accordingly, Environment One is not entitled to summary judgment against Westport's cross claim on that basis.
B. The Application of the Exclusivity Provision of § 52-572n(a) to Westport's Common-law Indemnification Claim
Environment One argues that it is entitled to summary judgment on the third count of Westport's cross claim on the ground that, regardless of the particular theory alleged, the plaintiffs' action, and by extension Westport's claim for common-law indemnification, are really claims for products liability against Environment One, and thus, the exclusivity provisions of the CPLA preclude Westport from circumventing the remedies of the statute. In response, Westport points out that " even a cursory reading of the plaintiffs' [amended] complaint reveals that it advances numerous legal theories and is not constrained to the confines of a 'product liability action.'" The court agrees with Westport.
General Statutes § 52-572n(a) provides that " [a] product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." Our Supreme Court has held that " [t]he exclusivity provision makes the product liability act the exclusive means by which a party may secure a remedy for an injury caused by a defective product." Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003). " As noted previously, the legislature defined a product liability claim to include all claims brought for personal injury, death or property damage caused by the allegedly defective product . . . In addition, a product liability claim is defined broadly to include, but not be limited to, all actions based on [s]trict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; [and] misrepresentation or nondisclosure, whether negligent or innocent . . . Finally, the legislature defined 'harm' for the purposes of the act to include damage to property, including the product itself, and personal injuries including wrongful death." (Citations omitted; internal quotation marks omitted.) Id., 127.
In Gerrity, our Supreme Court determined that " the language of the exclusivity provision makes clear that the product liability act was intended to serve as the exclusive remedy for a party who seeks recompense for those injuries caused by a product defect. The language of the exclusivity provision, however, suggests that it was not designed to serve as a bar to additional claims, including one brought under CUTPA, either for an injury not caused by the defective product, or if the party is not pursuing a claim for personal injury, death, or property damage." (Internal quotation marks omitted.) Id., 128. This determination led the Gerrity court to conclude that a " plaintiff's CUTPA claim may be asserted in conjunction with [a] product liability act claim . . . In part, at least, the plaintiff's CUTPA claim does not seek a remedy for personal injury, death or property damage . . . The plaintiff seeks, rather, to use CUTPA so as to redress merely a financial injury suffered by the decedent, of a kind that has never been regarded as part of the traditional tort remedy for harm caused by a defective product." (Citation omitted; emphasis in original.) Id., 129.
Quite simply, Westport's cross claim for common-law indemnification against Environment One is not a claim asserted by Westport for damage to property, damage to the grinder pump sold by Environment One, or for personal injury, and thus, in line with the reasoning of Gerrity, Westport's common-law indemnification claim does not fall within the confines of the CPLA in this case. Environment One's argument that the CPLA applies appears to rest on the fact that " the plaintiffs, their insurer, and [Westport] all assert claims against [Environment One] based on the alleged failure of its grinder pump, " and for that reason, the plaintiffs' underlying action is one that sounds in product liability, and therefore, Westport's cross claim must also abide by the provisions of the CPLA. As previously discussed, the plaintiffs have alleged a variety of theories on which the defendants may be liable, and Environment One has not cited any authority holding that when a defendant is facing liability to a plaintiff on a variety of theories that fall outside of the CPLA, the CPLA bars that defendant from seeking common-law indemnification against a codefendant based on a theory that part of the plaintiffs' harm was caused by a product supplied by the codefendant. The plaintiffs have not alleged product liability against the defendants, and to the extent Environment One would like to argue that the plaintiffs are cloaking their product liability claims in negligence garb, a motion for summary judgment against Westport's cross claim for common-law indemnification is not the proper vehicle to do so.
Environment One's argument that our Supreme Court's holding in Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 699, 535 A.2d 357 (1988) precludes Westport's common-law indemnification claim is inapposite to this case. Unlike the defendant in Kyrtatas, Westport is not seeking to assert a common-law indemnification claim against codefendant Environment One in response to an underlying CPLA action by the plaintiffs. Kyrtatas held " that the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution . . ." whereas here, there can be no inconsistency because the underlying claims by the plaintiffs are not CPLA claims.
CONCLUSION
The Town of Westport's motion for summary judgment is denied. Those portions of the first and second counts of Westport's cross claim addressing indemnification are dismissed for lack of subject matter jurisdiction. Environment One's motion for summary judgment is denied.