Brass Mill Center, LLC v. Subway Real Estate Corp. ( 2022 )

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BRASS MILL CENTER, LLC v. SUBWAY
REAL ESTATE CORP. ET AL.
(AC 44436)
Suarez, Clark and Sheldon, Js.
Syllabus
The plaintiff shopping mall sought indemnification from the defendant A
Co., a security company it contracted with to provide security services to
the mall property, including crime prevention. The plaintiff had incurred
economic losses as a result of a separate wrongful death action brought
against it by the administrator of the estate of a pedestrian who had
been struck and killed while crossing the roadway surrounding the mall
while on her way to work in the mall. The wrongful death action alleged
that the plaintiff’s negligence caused the collision by, inter alia, its design
of the mall’s parking lots and roads and its failure to implement various
traffic calming measures. The plaintiff demanded defense and indemnifi-
cation from A Co. in connection with the wrongful death action; A Co.
denied the plaintiff’s demand, explaining that A Co. was not responsible
for the design of the roadway or the absence of traffic calming measures.
The plaintiff filed a motion for summary judgment in the indemnification
action, asserting that, inter alia, A Co. had a contractual duty to defend
and indemnify the plaintiff in connection with the wrongful death action,
and A Co. filed a cross motion for summary judgment. The trial court
denied A Co.’s motion, granted the plaintiff’s motion as to liability and
awarded damages to the plaintiff. On A Co.’s appeal to this court, held
that the trial court erred in granting the plaintiff’s motion for summary
judgment and denying A Co.’s motion for summary judgment, as A Co.
was entitled to judgment in its favor as a matter of law: A Co.’s obligation
to defend the plaintiff was not triggered by the wrongful death action,
as the wrongful death action did not contain allegations of negligence
or other conduct that even arguably fell within the scope of A Co.’s
contractual responsibilities to provide security services, and the court
erroneously conflated the allegations in the wrongful death action
regarding traffic control with A Co.’s contractual obligations for crime
prevention as the security contractor for the property; moreover, as A Co.
did not have a duty to defend the plaintiff pursuant to the indemnification
provision of the security contract, A Co. did not have a duty to indemnify
the plaintiff.
Argued March 2—officially released August 9, 2022
Procedural History
Action for, inter alia, indemnification for economic
losses allegedly incurred by the plaintiff, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Waterbury, where the action was withdrawn as
against the named defendant et al.; thereafter, the court,
Roraback, J., denied in part the motion for summary
judgment filed by the defendant AlliedBarton Security
Services, LLC, and granted the plaintiff’s motion for
summary judgment as to liability; subsequently, after a
hearing in damages, the court, Roraback, J., rendered
judgment for the plaintiff, from which the defendant
AlliedBarton Security Services, LLC, appealed to this
court. Reversed; judgment directed.
Ashley A. Noel, with whom was Cassandra Pilczak,
for the appellant (defendant AlliedBarton Security Ser-
vices, LLC).
Michael Smith, for the appellee (plaintiff).
Opinion
CLARK, J. The defendant AlliedBarton Security Ser-
vices, LLC,1 appeals from the judgment rendered by the
trial court in favor of the plaintiff, Brass Mill Center,
LLC, granting summary judgment as to liability and
awarding damages. The defendant argues that the trial
court improperly concluded that it had a contractual
duty (1) to defend the plaintiff in an underlying wrongful
death action brought against the plaintiff and (2) to
indemnify the plaintiff in that same wrongful death
action, including for attorney’s fees and costs that the
plaintiff incurred in pursuing claims against third par-
ties. We agree and, accordingly, reverse the judgment
of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff, the owner of the Brass
Mill Center & Commons shopping mall in Waterbury
(mall), and the defendant, a security company, are par-
ties to a security agreement, which sets forth the secu-
rity services that the defendant is obligated to provide
the plaintiff. The security agreement states that ‘‘[The
defendant’s] personnel assigned to the Property2 shall
be responsible for promoting a pleasant shopping atmo-
sphere and crime prevention efforts through patrol of
the Property; seeking out and providing appropriate
customer service to patrons; reasonable inspection of
the Property for safety hazards and enforcement of the
Property’s rules and regulations; appropriate response
to incidents and emergencies; preliminary investigation
and appropriate disposition of incidents; access con-
trol/physical security as appropriate during operating
and non-operating hours; official reporting of activities,
incidents, and inspection logs; and any special assign-
ments and/or events related to the security/safety func-
tion of the Property as agreed upon by the parties.’’
(Footnote added.)
The security agreement also contains an indemnifica-
tion provision that provides in relevant part that ‘‘[the
defendant] agrees that [i]t shall defend, indemnify, and
hold harmless [the plaintiff] . . . from and against any
claims, liabilities, losses, damages, actions, causes of
action, or suits to the extent caused by (A) any actual
or alleged negligent or grossly negligent act or omission
or willful misconduct of [the defendant] or its agents
or employees at the Property or in connection with this
Agreement or breach thereof in any way . . . .’’3
At approximately 8:20 a.m. on December 21, 2012,
Yaneli Nava Perez, who was a pedestrian crossing the
travel lane of the mall on her way to work in the mall’s
food court, was struck by a vehicle driven by a seven-
teen year old unlicensed driver. The weather conditions
at the time of the accident were poor, with heavy to
torrential rains and high wind gusts. The windows of the
vehicle were obscured by ‘‘fog,’’ preventing the young
driver from seeing Perez at the time of the collision.
After the Waterbury police and emergency responders
arrived at the scene, Perez was transported by ambu-
lance to St. Mary’s Hospital for emergency treatment,
where she later succumbed to her injuries.
In 2014, Gabriel Avendano, the administrator of the
estate of Yaneli Nava Perez, filed a four count complaint
(Avendano complaint) against the plaintiff, General
Growth Services, Inc., General Growth Management,
Inc., and Anthony Guerriero (Avendano action).4 As
we discuss in greater detail later in this opinion, the
Avendano complaint alleged eight separate allegations
of negligence against the plaintiff, including, inter alia,
that the plaintiff failed to install or use any traffic calm-
ing measures on the roadway within the mall premises
that ran parallel to Union Street and designed the prem-
ises in such a way so as to allow motorists to easily
travel at unsafe rates of speed through areas routinely
filled with pedestrians. The Avendano complaint did
not name the defendant as a defendant.
On October 5, 2015, pursuant to the security agree-
ment, the plaintiff demanded defense and indemnifica-
tion from the defendant with respect to the Avendano
action. By letter dated October 23, 2015, the defendant
denied the plaintiff’s tender, explaining, inter alia, that
the Avendano complaint did not allege that the plaintiff
‘‘failed to do something that was required of [the defen-
dant] under the [security] [a]greement. [The defendant]
was clearly not responsible for the design of the road-
way or the absence of traffic calming measures.’’
On August 25, 2016, the plaintiff filed the present
action against the defendant, Subway Real Estate Corp.
(Subway), and Foot Locker Retail, Inc. (Foot Locker).
The complaint asserts two causes of action against the
defendant: count VI alleges that the defendant had a
contractual duty to defend and indemnify the plaintiff
in connection with the Avendano complaint, and count
VII alleges a common-law indemnification claim.
On October 28, 2019, the parties filed cross motions
for summary judgment. In a memorandum of decision
dated June 11, 2020, the court, Roraback, J., granted
the plaintiff’s motion as to liability on the contractual
indemnification claim but denied its motion with
respect to the common-law indemnification claim. In
so doing, the court concluded, as a matter of law, that
the Avendano complaint could ‘‘fairly [be] read to allege
negligent acts or omissions for which [the defendant]
was responsible under its contractual duties to inspect,
monitor and secure the property . . . .’’ Accordingly,
it held that the defendant had a duty to defend the
plaintiff. The court also held that the defendant had a
duty to indemnify the plaintiff.5 The court also denied
the defendant’s motion for summary judgment in its
entirety.
On July 1, 2020, the defendant filed a motion to rear-
gue/reconsider the court’s June 11, 2020 decision
arguing, inter alia, that, because the court had denied
the plaintiff’s motion for summary judgment with
respect to the common-law indemnification claim on
the basis that the plaintiff was unable to satisfy two of
the four elements required to prevail on its claim, the
court should have granted the defendant’s motion for
summary judgment with respect to that claim. On July
17, 2020, the court issued a decision granting the defen-
dant’s motion for summary judgment as to the plaintiff’s
common-law indemnification claim.6
On September 9, 2020, the court held a hearing in
damages. In a memorandum of decision dated Decem-
ber 3, 2020, the trial court awarded the plaintiff damages
totaling $426,807.97,7 plus offer of compromise interest
on that amount at a rate of 8 percent per annum from
May 24, 2019, until the date that judgment entered, and
postjudgment interest at a rate of 5 percent per annum
from the date that judgment entered until the date the
judgment is satisfied. This appeal followed.
We begin by setting forth our standard of review.
‘‘Summary judgment rulings present questions of law;
accordingly, [o]ur review of the . . . decision to grant
[a] . . . motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Farrell v. Twenty-
First Century Ins. Co., 301 Conn. 657, 661, 21 A.3d 816(2011); see also Practice Book § 17-49. In addition, the
interpretation of definitive contract language presents
a question of law, over which our review also is plenary.
See, e.g., CCT Communications, Inc. v. Zone Telecom,
Inc., 327 Conn. 114, 133, 172 A.3d 1228 (2017); see also
Misiti, LLC v. Travelers Property Casualty Co. of
America, 308 Conn. 146, 154, 61 A.3d 485 (2013).
We must also determine the appropriate standard of
review and analysis to employ when deciding whether
one sophisticated business party to a contract has a
contractual duty to defend a claim brought against
another sophisticated business party to that contract.
The duty to defend most commonly arises in the context
of a contract of insurance; see, e.g., DaCruz v. State
Farm Fire & Casualty Co., 268 Conn. 675, 687, 846
A.2d 849 (2004); and our courts have made clear that
‘‘whether an insurer has a duty to defend its insured is
purely a question of law . . . .’’ (Internal quotation
marks omitted.) Lift-Up, Inc. v. Colony Ins. Co., 206
Conn. App. 855, 866, 261 A.3d 825 (2021). Our appellate
courts have not previously addressed whether our stan-
dard of review and analysis regarding a duty to defend
in the context of insurance contracts should apply to
contracts between sophisticated business entities that
contain similar provisions. See, e.g., Henderson v. Bis-
mark Construction Co., Superior Court, judicial district
of Fairfield, Docket No. CV-XX-XXXXXXX-S (July 10, 2019)
(68 Conn. L. Rptr. 852, 853) (‘‘[a]lthough research did
not reveal any appellate authority, and the parties have
not provided any appellate authority, a few Superior
Court decisions have discussed whether the law on an
insurer owing a duty to defend applies to the analysis
of whether one of two commercial parties owes a duty
to defend to the other based on a contract for indem-
nity’’). In reviewing our case law, we discern no reason
to apply a different analysis in such cases.8 Accordingly,
we hold that ‘‘[t]he question of whether [one sophisti-
cated business party] has a [contractual] duty to defend
[another sophisticated business party] is purely a ques-
tion of law, which is to be determined by comparing
the allegations of [the] complaint with the terms of the
[parties’ agreement].’’ (Internal quotation marks omit-
ted.) Misiti, LLC v. Travelers Property Casualty Co.
of America, supra, 308 Conn. 154.
With this standard of review in mind, we next turn to
the legal principles that inform our analysis. ‘‘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 circum-
stances 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, natu-
ral, 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 . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms.’’ (Internal quotation marks
omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Trans-
mission System, L.P., 252 Conn. 479, 498, 746 A.2d
1277 (2000).
Moreover, as noted, we conclude that a duty to defend
in the context of insurance contracts applies equally to
contracts between sophisticated business parties that
contain similar defense and indemnification provisions.
To that end, it is well settled that an insurer’s duty to
defend ‘‘is determined by reference to the allegations
contained in the [underlying] complaint.’’ (Internal quo-
tation marks omitted.) DaCruz v. State Farm Fire &
Casualty Co., supra, 268 Conn. 687. The duty to defend
‘‘does not depend on whether the injured party will
successfully maintain a cause of action against the
insured but on whether [the complaint] stated facts
which bring the injury within the coverage.’’ (Internal
quotation marks omitted.) Security Ins. Co. of Hartford
v. Lumbermens Mutual Casualty Co., 264 Conn. 688,
712, 826 A.2d 107 (2003). ‘‘If an allegation of the com-
plaint falls even possibly within the coverage, then the
insurance company must defend the insured.’’ (Internal
quotation marks omitted.) Moore v. Continental Casu-
alty Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000).
However, an insurer ‘‘has a duty to defend only if the
underlying complaint reasonably alleges an injury that
is covered by the policy.’’ (Emphasis in original.) Misiti,
LLC v. Travelers Property Casualty Co. of America,
supra, 308 Conn. 156. ‘‘[W]e will not predicate the duty
to defend on a reading of the complaint that is . . .
conceivable but tortured and unreasonable.’’ (Internal
quotation marks omitted.) Id.‘‘In contrast to the duty to defend, the duty to indem-
nify is narrower: while 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.’’ (Internal quotation marks omitted.) Board
of Education v. St. Paul Fire & Marine Ins. Co., 261
Conn. 37, 48–49, 801 A.2d 752 (2002). ‘‘[W]here there
is no duty to defend, there is no duty to indemnify,
given the fact that the duty to defend is broader than
the duty to indemnify.’’ QSP, Inc. v. Aetna Casualty &
Surety Co., 256 Conn. 343, 382, 773 A.2d 906 (2001).
With these principles in mind, we turn our attention
to the language of the indemnification provision in the
parties’ security agreement. By its terms, ‘‘[The defen-
dant] agrees that [i]t shall defend, indemnify, and hold
harmless [the plaintiff], GGP Limited Partnership and
General Growth Properties, Inc. (‘Indemnitees’) and the
agents, officers and employees of all of the Indemnitees
from and against any claims, liabilities, losses, damages,
actions, causes of action, or suits to the extent caused
by (A) any actual or alleged negligent or grossly negli-
gent act or omission or willful misconduct of [the defen-
dant] or its agents or employees at the Property or in
connection with this Agreement or breach thereof in
any way . . . .’’ It further provides that ‘‘[i]t is intended
that all claims and demands, legal proceedings and law-
suits in which any party to this Agreement or additional
insured under this Agreement is named or described
as a defendant which alleges or describes any claim in
which [the defendant] or a security officer has done or
has failed to do any act or thing required pursuant to
this Agreement or failed to provide the Services at the
Property shall be a claim tendered to, accepted by or
defended by [the defendant].’’ See footnote 3 of this
opinion.
As the language of the indemnification provision
makes clear, the defendant agreed to defend the plain-
tiff against claims brought against the plaintiff alleging
conduct falling within the scope of the defendant’s obli-
gations under the security agreement. With respect to
the scope of the defendant’s obligations under the con-
tract, section 3 of the security agreement sets forth the
‘‘On-Site Contracted Services.’’ In particular, subsection
B of section 3, titled ‘‘Security Functions,’’ provides:
‘‘[The defendant’s] personnel assigned to the Property
shall be responsible for promoting a pleasant shopping
atmosphere and crime prevention efforts through patrol
of the Property; seeking out and providing appropriate
customer service to patrons; reasonable inspection of
the Property for safety hazards and enforcement of the
Property’s rule and regulations; appropriate response
to incidents and emergencies; preliminary investigation
and appropriate disposition of incidents; access con-
trol/physical security as appropriate during operating
and non-operating hours; official reporting of activities,
incident, and inspection logs; and any special assign-
ments and/or events related to the security/safety func-
tion of the Property as agreed upon by the parties.’’
Additionally, section 3 of the security agreement
addresses ‘‘Duties/Responsibilities.’’ Specifically, sub-
section H of section 3 of the security agreement states
that the defendant ‘‘shall provide a comprehensive secu-
rity policy and procedures manual for the Property
(‘Manual’). The Manual shall consist of [the defendant’s]
mall security guidelines and site-specific ‘security
orders’. Site-specific ‘security orders’ shall include, but
not be limited to, mall organizational structure, radio
call signs and procedures, code of conduct, tenant rules,
commonly encountered state laws, banning guideline,
shift procedures to include opening and closing proce-
dures, and site specific inspections. The Property Man-
ager9 shall have the right to approve any site-specific
‘security orders’ related to the operation of the Prop-
erty. [The defendant’s] Security Staff shall be familiar
with, understand and adhere to the requirements of The
Manual at all times. The Manual shall be developed
within thirty (30) days following the Effective Date and
shall be updated during the Term at the request of [the
defendant], the Property Manager, or the GGP Corpo-
rate Security Director.’’ (Footnote added.)
At this point, we must determine whether the Aven-
dano complaint triggered the defendant’s duty to defend
the plaintiff under the terms of the security agreement.
The defendant argues that the allegations in the Aven-
dano complaint did not fall within its contractual obliga-
tions under the security agreement because the com-
plaint did not contain any allegations of negligence, or
other conduct, that even arguably falls within the scope
of the defendant’s contractual responsibilities under
the security agreement. The plaintiff disagrees. In its
view, the security agreement ‘‘is notably broad and cer-
tainly encompasses the mall parking lot/roadway safety
claims asserted in the [Avendano complaint].’’ On the
basis of our review of the security agreement and the
allegations in the Avendano complaint, we conclude
that the defendant’s obligation to defend the plaintiff
was not triggered by the Avendano complaint.
The Avendano complaint alleged that the plaintiff
negligently caused the subject collision because it
‘‘failed to install or use any traffic calming measure on
the roadway within the mall premises that ran parallel
to Union Street’’; ‘‘failed to install or use sufficient traffic
calming measures on the roadway within the mall prem-
ises that ran parallel to Union Street’’; ‘‘knew that
numerous accidents occurred on the roadway within
the mall that ran parallel to Union Street but failed to
make any measures to slow traffic down’’; ‘‘failed to
properly inspect the traffic, accidents, parking areas
and internal roadways’’; ‘‘designed the premises in such
a way so as [to] allow motorists to easily travel at
unsafe rates of speed through areas routinely filled with
pedestrians’’; ‘‘knew or should have known that motor-
ists sped through the mall property, yet took no steps to
slow them down’’; ‘‘ignored the need for traffic calming
measures at the Brass Mill Center for economic rea-
sons’’; and/or ‘‘knew that other mall properties within
the General Growth Properties company installed and
used traffic calming measures to protect pedestrians,
yet failed to implement any such procedures at the
Brass Mill Center.’’
It is clear from these allegations that the theory of
liability against the plaintiff was premised on the layout
and design of the mall’s internal roadways and parking
lots and the plaintiff’s alleged failure to monitor and
implement traffic calming measures on the property to
prevent motor vehicles from operating at excessive
rates of speed. We have found nothing in the security
agreement or the procedures manual that suggests that
the defendant had any obligation to monitor or control
traffic, to design or redesign the layout of the parking
lots or roads, or otherwise to implement traffic calming
measures.10
Upon our review of the Avendano complaint and the
security agreement, we agree with the defendant that
the court erroneously conflated the allegations of the
Avendano complaint regarding traffic control and
design with the defendant’s responsibility for crime pre-
vention as the security contractor for the property. The
defendant’s obligations under the security agreement
to respond to ‘‘incidents and emergencies’’; to notify
law enforcement; to make ‘‘reasonable inspection of
the Property for safety hazards’’; to prepare incident
reports and inspection logs after those occurrences;
and to ‘‘track statistical trending for the Property’’ do
not include or impose upon the defendant any obliga-
tion to control the traffic on the property, install traffic
calming measures, or design or redesign the mall’s park-
ing lots or thoroughfares.
Although the plaintiff points to the allegation in the
Avendano complaint that the plaintiff ‘‘failed to properly
inspect the traffic, accidents, parking areas and internal
roadways’’ as the basis for its contention that the Aven-
dano complaint triggered the defendant’s duty to
defend, we are not persuaded that this allegation falls
within the defendant’s obligation under the security
agreement to make ‘‘reasonable inspection of the Prop-
erty for safety hazards.’’ Rather, that allegation, read
within the context of the entire Avendano complaint,
clearly pertains to the plaintiff’s alleged failure to prop-
erly design the mall’s parking lots and roads and imple-
ment traffic calming measures—obligations not coming
within the defendant’s contractual obligations. Indeed,
it is difficult to conjure a contrary interpretation in
light of the nature of the claims made in the Avendano
complaint. We decline to ‘‘predicate the duty to defend
on a reading of the complaint that is . . . conceivable
but tortured and unreasonable.’’ (Internal quotation
marks omitted.) R.T. Vanderbilt Co. v. Hartford Acci-
dent & Indemnity Co., 171 Conn. App. 61, 91, 156 A.3d
539 (2017), aff’d, 333 Conn. 343, 216 A.3d 629 (2019).
As such, we cannot conclude that the Avendano ‘‘com-
plaint reasonably alleges an injury that is covered by
the [indemnification provision].’’ (Emphasis in original;
internal quotation marks omitted.) Kling v. Hartford
Casualty Ins. Co., 211 Conn. App. 708, 714, 273 A.3d
717, cert. denied, 343 Conn. 926, 275 A.3d 627 (2022).
Because we conclude that, as a matter of law, the
defendant did not have a duty to defend the plaintiff
pursuant to the indemnification provision of the secu-
rity agreement, it inexorably follows that the defendant
did not have a duty to indemnify the plaintiff either.
See, e.g., QSP, Inc. v. Aetna Casualty & Surety Co.,
supra, 256 Conn. 382 (‘‘where there is no duty to defend,
there is no duty to indemnify, given the fact that the
duty to defend is broader than the duty to indemnify’’).
We therefore conclude that the trial court improperly
granted summary judgment in favor of the plaintiff. In
light of the absence of any genuine issue of material
fact as well as our conclusion that the defendant did
not owe the plaintiff a duty to defend or indemnify, the
defendant is entitled to judgment in its favor as a matter
of law.
The judgment is reversed and the case is remanded
with direction to deny the plaintiff’s motion for sum-
mary judgment and to grant the defendant’s motion for
summary judgment and to render judgment thereon for
the defendant.
In this opinion the other judges concurred.
1
Subway Real Estate Corp. (Subway) and Foot Locker Retail, Inc. (Foot
Locker), were also named as defendants in the present action. The plaintiff’s
claims for defense and indemnity against Subway and Foot Locker were
eventually settled leaving AlliedBarton Security Services, LLC, as the sole
defendant in this case. Accordingly, we refer to AlliedBarton Security Ser-
vices, LLC, as the defendant in this opinion.
2
The security agreement defines ‘‘ ‘Property’ ’’ as the ‘‘Brass Mill Center &
Commons located at 495 Union Street, Waterbury, CT 06706.’’
3
Section 8 (e) of the security agreement provides in its entirety: ‘‘[The
defendant] agrees that [i]t shall defend, indemnify, and hold harmless [the
plaintiff], GGP Limited Partnership and General Growth Properties, Inc.
(‘Indemnitees’) and the agents, officers and employees of all of the Indemni-
tees from and against any claims, liabilities, losses, damages, actions, causes
of action, or suits to the extent caused by (A) any actual or alleged negligent
or grossly negligent act or omission or willful misconduct of [the defendant]
or its agents or employees at the Property or in connection with this Agree-
ment or breach thereof in any way, (B) [the defendant’s] failure to purchase
and maintain all insurance required by this Agreement and (C) negligence
or willful misconduct of [the defendant] or its agents or employees in any
operation of a Security Vehicle under this Agreement. It is intended that all
claims and demands, legal proceedings and lawsuits in which any party to
this Agreement or additional insured under this Agreement is named or
described as a defendant which alleges or describes any claim in which [the
defendant] or a security officer has done or has failed to do any act or thing
required pursuant to this Agreement or failed to provide the Services at the
Property shall be a claim tendered to, accepted by or defended by [the
defendant]. [The plaintiff] shall within thirty (30) days after notice of any
incident, potential claim or suit, or service of legal process, provide [the
defendant], at AlliedBarton Security Services LLC, Eight Tower Bridge, 161
Washington Street, Suite 600, Conshohocken, PA 19428 to the attention of
Michael A. Meehan, Vice President/Deputy General Counsel with written
notice that an action has been brought and shall require [the defendant],
at its own expense, to employ such attorneys as [the defendant] may see
fit to employ, and as reasonably approved by [the plaintiff’s] Director of Risk
Management, to defend such claim or action on behalf of the Indemnitees.
If a tender of defense and/or indemnity is refused by [the defendant] or its
insurer, or if a defense is provided under any reservation of rights and [the
plaintiff] does not consent to such refusal or reservation of rights, [the
defendant] shall pay liquidated damages in the sum of $2,000.00 to [the
plaintiff] for the amount of the added internal expense incurred by the
Indemnitees in dealing with the claim or action for which tender was refused
or rights reserved. This liquidated damages provision shall be in addition
to the Indemnitees’ actual costs of defense, investigation, litigation, litigation
management expenses for in-house counsel, costs of trial and/or settlement
of the claim which are incurred by the Indemnitees which shall be billed
to [the defendant] as incurred until the tender is accepted without reserva-
tion. The provisions of this paragraph shall survive the termination or expira-
tion of this Agreement and shall not be construed to provide for any indemni-
fication which would, as a result thereof, make the provisions of this
paragraph void or to reduce or eliminate any other indemnification or right
which the indemnified parties have be law.’’
4
The complaint alleged that the plaintiff, General Growth Services, Inc.,
and General Growth Management, Inc., were owners and operators of the
mall and its parking lots and internal roadways and that Guerriero was the
manager of the mall on the day of the accident.
5
In the defendant’s motion for summary judgment, the defendant also
argued that it was entitled to summary judgment because the plaintiff failed
to provide the defendant with the requisite thirty day written notice set
forth in the indemnification provision of the security agreement. The court
rejected that argument, stating, inter alia, that the defendant failed ‘‘to
plead lack of proper notice as a special defense,’’ which ‘‘precludes it from
prevailing on this ground in the context of either winning its motion for
summary judgment or defeating [the plaintiff’s] motion for summary judg-
ment.’’ The defendant does not challenge this portion of the court’s judgment
on appeal.
6
The plaintiff has not appealed from that decision.
7
The court found that the plaintiff paid the sum of $500,000 to settle the
Avendano action, and received contributions from three third parties in the
aggregate amount of $255,000 toward the settlement. Accordingly, the court
found that the plaintiff’s damages were the unpaid portion of the Avenado
settlement—$245,000. The court also found that the legal fees expended by
the plaintiff were reasonable, including the legal fees expended by the
plaintiff in obtaining contributions from Subway, Foot Locker, and the plain-
tiff’s prior counsel, reasoning that the contributions the plaintiff received
inured to the benefit of the defendant. In total, the court awarded legal fees
and expenses in the amount of $179,807.97. Last, the court held that the
plaintiff was entitled to $2000 in liquidated damages pursuant to the security
agreement.
8
We note that numerous Superior Court decisions also have held that
that our jurisprudence regarding a duty to defend in the context of insurance
contracts applies equally to contracts between sophisticated business parties
that contain similar defense and indemnification provisions. See, e.g., Hen-
derson v. Bismark Construction Co., supra, 68 Conn. L. Rptr. 853–54 (collect-
ing cases); Gemma Power Systems, LLC v. Smedley Co., Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX (July 26, 2017)
(same).
9
‘‘Property Manager’’ is defined as ‘‘[the plaintiff’s] property manager.’’
10
To the extent there is any ambiguity with respect to the defendant’s
obligations under the security agreement, undisputed evidence in the record
resolves that ambiguity in favor of the defendant. The plaintiff’s own repre-
sentative, Guerriero, the general manager of the mall, testified at a deposition
that traffic calming measures, including implementing signage on the mall’s
roadways to slow vehicular traffic down, fell within the plaintiff’s purview
and was not the defendant’s contractual obligation. Similarly, Steven Crum-
rine, the corporate security director for General Growth Properties, Inc., who
oversees the defendant’s compliance with the security agreement, testified
at a deposition that the defendant was not responsible for installation,
implementation, and/or design of the roadway within the mall property and
testified that there was no language within the security agreement that
required the defendant to employ, install, and/or use traffic calming measures
or slow down traffic on the roadway. When asked whether there was an
expectation for a security officer of the defendant to attempt to stop a
speeding motorist if the officer observed one, Crumrine testified, ‘‘No.’’ He
indicated that ‘‘[t]hey’re not trained nor do they have the legal authority to
do that. Their own policies and procedures manual would prohibit them
from pulling over a vehicle, and we wouldn’t expect them to do that either
because it presents an elevated risk. It’s not what they’re trained to do.’’
Tawana Perry, the defendant’s national account portfolio manager for Gen-
eral Growth Properties, Inc., similarly confirmed in her deposition testimony
that the defendant was not responsible for traffic calming measures.