DocketNumber: No. 0118960
Judges: PELLEGRINO, J.
Filed Date: 4/4/1996
Status: Non-Precedential
Modified Date: 4/17/2021
The motion to strike is the proper motion to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Novametrix MedicalSystems v. BOC Group, Inc.,
The third party defendants argue that the first count of the third party complaint is insufficient since the written indemnity agreement provides that the bus company D L will indemnify the City for any negligence on the part of D L. Count one, paragraph 5 of the third party complaint reiterates the terms of the written agreement that the City is relying on, which clearly provides that the indemnification is for negligent acts of D L for which the City might be held liable. CT Page 3026
However, the first party plaintiff J'Anthony does not allege that the City is liable because of the negligence of D
L; she alleges the City was solely liable because of the defective sidewalk. The indemnification clause of the contract between D L and the City provides indemnification to the City and its officers and employees by D L if any "act, action, neglect, omission or default on the part" of D L's officers and employees . . . unless the act of omission is due to the City's negligence. Because the City cannot be found liable in the first instance unless its negligence is proved to be thesole proximate cause of the plaintiff's injuries, a cause of action for indemnification cannot lie against the third party defendant. See Grenier v. Glastonbury,
This contract of indemnification requires that D L be negligent for the City to enforce it. It is clear the written indemnification agreement that is relied on by the City does not provide indemnification by the third party defendant D L to the City for the City's alleged negligence.
The second count of the third party complaint is directed against the bus driver Finley on what seems to be a theory of common law indemnification. The Connecticut Supreme Court has held that a common law action for indemnification must allege four different elements. Burkert v. Petrol Plus of Naugatuck,Inc.,
In Atkinson v. Berloni,
In the second count of the third party complaint, the third CT Page 3027 party plaintiff alleges that there was a contract between the City and D L to indemnify the City. The City also alleges that Finley was negligent. However, there is no allegation that the third party defendant was in control of the situation, that Finley's negligence was the direct cause of the accident, or that the City had no reason to anticipate the negligence. Therefore, the third party plaintiff has not sufficiently alleged a claim of common law indemnification. Because the third party plaintiff cannot make a claim for indemnification for liability under the defective highway statute, nor has it alleged sufficient facts to sustain a claim of common law indemnification, the court will grant the third party's Motion to Strike.
/s/ Pellegrino, J. PELLEGRINO