DocketNumber: No. CV 02-0461358 S
Citation Numbers: 2002 Conn. Super. Ct. 15823
Judges: ZOARSKI, JUDGE TRIAL REFEREE.
Filed Date: 12/3/2002
Status: Non-Precedential
Modified Date: 7/5/2016
Count one alleges negligence against Cheshire Investment, as an owner of the property, in that it failed to remove snow and ice from the sidewalk, failed to provide signs or other warnings of the condition of the sidewalk and failed to maintain the sidewalk in a reasonable safe condition, thereby rendering it hazardous.
Count two alleges negligence against Bowman, as an owner of the property, for its failure to remove snow and ice from the sidewalk, failed to provide signs or other warnings of the condition of the sidewalk and failed to maintain the sidewalk in a reasonable safe condition, thereby rendering it hazardous.
On February 15, 2002, CMS filed a motion to intervene as co-plaintiff seeking reimbursement of workers' compensation benefits paid to the plaintiff as a result of her injuries. This motion was granted on March 11, 2002 and, on April 1, 2002, CMS filed a one-count intervening complaint. The intervening complaint alleges that the plaintiff was employed by CMS at the time of the slip-and-fall and that the slip-and-fall occurred in the course of her employment with CMS. As such, CMS alleges that the incident was covered by the Workers' Compensation Act, General Statutes §
On April 3, 2002, Cheshire Investment filed an answer to the intervening complaint and a counterclaim against CMS. The counterclaim alleges that, prior to the slip-and-fall, Cheshire Investment entered into a written lease with CMS pursuant to which CMS agreed to hold Cheshire Investment harmless and indemnified from all injury, loss or damages to any person or property while on the leased premises. Cheshire Investment therefore argues that, to the extent it is held liable for any of the plaintiffs injuries, it is entitled to indemnification from CMS pursuant to the terms of the indemnification agreement for the amount of the judgment against it and for costs and attorney's fees accrued in the defense of the action.
On June 18, 2002, CMS filed a motion to strike the counterclaim, accompanied by a memorandum in support.
On July 1, 2002, Cheshire Investment filed a memorandum in opposition to the motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.)Peter-Michael, Inc. v. Sea Shell Associates,
CMS moves to strike Cheshire Investment's counterclaim on the ground CT Page 15825 that it fails to state a claim upon which relief can be granted and that the claim is barred by the exclusivity provisions of the act. CMS argues that Cheshire Investment fails to allege the existence of a duty owed by CMS to Cheshire Investment with respect to maintaining the leased premises reasonably free and clear of snow and ice. CMS further argues that the counterclaim fails to allege the necessary elements of active/passive negligence, namely that CMS was negligent, that CMS' negligence, rather than another's was the direct and immediate cause of the injury, that CMS had exclusive control over the situation and that Cheshire Investment did not know of CMS' negligence, had no reason to anticipate it and could reasonably have relied on CMS to act without negligence.
Cheshire Investment counters that its counterclaim properly states a cause of action and is not barred by the act. Cheshire Investment argues that it did not plead the existence of duty or the four elements of active/passive negligence because such allegations are not required for a claim sounding in contractual indemnification.
"When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, [indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause [of the act]. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant's express agreement to hold the third-party landlord harmless." (Emphasis added; internal quotation marks omitted.) Ferrymanv. Groton,
Similarly, because Cheshire Investment's claim is grounded in contract and is not a common law indemnity claim grounded in tort, it is not necessary for Cheshire Investment to allege the existence of a duty. "A party may bring an indemnification claim based on the terms of an indemnity agreement. . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself." (Citation omitted; internal quotation marks omitted.) Kroll v. Stop Shop Co., Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 97 0260127 (July 3, 2001, Gallagher, J.); see alsoSoto v. Hayden Machine Co., Inc., Superior Court, judicial district of CT Page 15826 New Haven, Docket No. CV 99 0429710 (July 19, 2000, Devlin, J.) (
Furthermore, it is not necessary for Cheshire Investment to allege the elements of active/passive negligence where, as here, there exists an express contractual provision to indemnity. While our Supreme Court has required that the active/passive negligence elements be pled in indemnity cases, this requirement has been applied only with respect to claims for common law indemnity. In Kyrtatas v. Stop Shop, Inc.,
"Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification. Fifield v. South Hill Ltd. Partners hip,
Cheshire Investment has sufficiently pleaded a cause of action for CT Page 15827 contractual indemnification, and therefore the motion to strike the counterclaim is denied.
___________________ Howard F. Zoarski Judge Trial Referee
CT Page 15828