DocketNumber: No. 396788
Citation Numbers: 1992 Conn. Super. Ct. 15, 7 Conn. Super. Ct. 274
Judges: SCHALLER, J.
Filed Date: 1/6/1992
Status: Non-Precedential
Modified Date: 4/17/2021
The plaintiff filed his complaint on June 17, 1991 alleging in two counts (1) damages caused by the negligence and carelessness of the defendants Brendon and James Droney, and (2) damages resulting from the negligence and carelessness of the defendant Arcila. The defendants Brendon and James Droney, and answered the first count of plaintiff's complaint on September 3, 1991. The defendant Arcila answered the second count of plaintiff's complaint on September 16, 1991 and cross-claimed against the defendants Brendon and James Droney seeking CT Page 16 indemnification for any judgment rendered against Arcila in favor of the plaintiff. The defendant Droneys have moved to strike on the ground that Arcila failed to state a legally sufficient cause of action for indemnification.
The motion to strike contests the legal sufficiency of the allegations of any complaint, counterclaim or cross-complaint to state a claim upon which relief may be grated. Gordon v. Bridgeport Housing Authority,
The defendant Droneys argue that defendant Arcila failed to plead a duty establishing an independent legal relationship between himself and defendant as is required by Atkinson v. Berloni,
An action seeking indemnity "involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest." Id., 412. In order for a party to recover in tort under an indemnification theory,
reimbursements is warranted only upon proof that the injury resulted from the "active or primary negligence" of the party against whom reimbursement is sought. [citation omitted] Such proof requires a plaintiff to establish four separate elements: `(1) that the other tortfeasor was negligent; (2) that his negligence, rather than the plaintiff's was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the plaintiff; and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not be negligent.'
CT Page 17
Burkert v. Petrol Plus Naugatuck, Inc.,
Id., 327.
In the present action, Arcila has pleaded the four indemnification elements required by Kaplan but has failed to plead an independent legal relationship between himself and the defendants giving rise to a social duty. Arcila, thus, has not properly pled indemnification.
In his objection to Droneys' motion to strike, Arcila argues that Atkinson v. Berloni, supra, being a decision or the appellate court, is not binding because it is in conflict with Kaplan v. Merberg Wrecking Corporation, supra, a decision of the Connecticut supreme court. However, Atkinson is merely an interpretation of the supreme court decision and not in direct conflict with it. Moreover, it is axiomatic that a decision by the appellate court is binding upon the superior court until overruled. Accordingly, Atkinson is binding upon this court.
For above reasons, the defendant Droneys' motion to strike Arcila's cross-claim for indemnification grounded in tort is granted.
SCHALLER, J.