DocketNumber: No. CV01 0186372 S
Citation Numbers: 2002 Conn. Super. Ct. 15334-ig
Judges: D'ANDREA, JUDGE TRIAL REFEREE.
Filed Date: 12/27/2002
Status: Non-Precedential
Modified Date: 4/17/2021
On March 20, 2002, BHC filed an apportionment complaint naming Bill's Service of Stamford (Bill's Service) and Marino Crane Service (Marino) as defendants. In its apportionment complaint, BHC alleges that the plaintiff hired Bill's Service and Marino to raise the forklift, but because of the negligence of these parties, the forklift was not uprighted before the tide came in. Bill's Service has admitted that it was hired by the plaintiff to upright the forklift.
The plaintiff filed a second amended complaint on May 2, 2002, naming Bill's Service and Marino as defendants. After the plaintiff and the defendant withdrew their claims against Marino, the plaintiff again revised its complaint on June 19, 2002, in which it continues to seek damages from BHC and Bill's Service. In its latest revised complaint, the plaintiff alleges that it hired Bill's Service to upright the forklift, but Bill's Service failed to do so before the forklift became submerged. On June 26, 2002, Bill's Service filed a cross claim against co-defendant BHC, seeking indemnification.
Pursuant to Practice Book §
"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book §
"[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest. . . . Ordinarily there is no right of indemnity or contribution between joint tortfeasors. . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury. . . . Under the circumstances described, we have distinguished between active or primary negligence, and passive or secondary negligence. . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones." (Citations omitted; emphasis in original; internal quotation marks omitted.) Crotta v. Home Depot, Inc.,
The issue before this court is whether in its cross claim, Bill's Service has alleged facts sufficient to establish that BHC was in exclusive control of the situation that gives rise to United Rentals' action. Bill's Service "must allege facts sufficient to establish at CT Page 15334-ii least four separate elements in order to maintain a common law action for indemnity. These elements are: (1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [Bill's Service's], was the direct, immediate cause of the . . . injuries; (3) that [the other tortfeasor, here, BHC,] was in control of the situation to the exclusion of [Bill's Service]; and (4) [that Bill's Service] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent." (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc.,
As to this element, "[t]here is no dispute that, to maintain a common law action for indemnity, not based on statute or express contract, the facts alleged in [the cross claim of Bill's Service] must establish that [BHC was] in control of the situation to the exclusion of [Bill's Service]." (Internal quotation marks omitted.) Id., 703. The rule, subject to exception, is that "the question of exclusive control should not be resolved on a motion to strike because the absence or presence of exclusive control is a question of fact." Id., 704. This issue becomes a question of law, however, where "special circumstances . . . give rise to the question of whether, in light of the facts alleged in the [cross claim], any reasonable juror could find that [BHC] had exclusive control of the situation." Id., 705. For example, if the facts, as alleged, are not meaningfully disputed, who had control over the situation becomes a question of law for the trial court. Thus, the real question here is whether, if the facts as alleged in the cross claim were proven, "any reasonable juror could find that [Bill's Service] had met its burden of establishing that [BHC was] in exclusive control of `the situation.'" Id., 705.
Here, Bill's Service does not incorporate any of the factual allegations contained in the plaintiff's complaint or in BHC's apportionment complaint into its cross claim. Through admissions by the plaintiff and the defendants, it is undisputed that the forklift toppled over while BHC's employee was using it on a tidal beach on BHC's property, and the plaintiff hired Bill's Service to right the forklift. BHC has also admitted that it is a private yacht club. Bill's Service does assert that, at all relevant times, BHC "exercised exclusive possession of the said forklift and exclusive control over the manner, means and frequency to which they operated the said forklift." (Bill's Service's Cross Claim, ¶ 5.) Bill's Service also alleges that BHC operated the forklift improperly, causing it to fall over, and that BHC CT Page 15334-ij failed to timely contact and retain a proper righting service. Legal conclusions and opinions such as these, however, will not be considered by the court.
Even read in the light most favorable to the pleader, the minimal facts Bill's Service alleges in the cross claim do not establish, and no reasonable juror could conclude, that BHC was in total control of the situation to the exclusion of Bill's Service.
For the foregoing reasons, BHC's motion to strike the cross claim of Bill's Service is granted.
BY THE COURT
___________________ D'ANDREA, J.T.R.