DocketNumber: No. CV94 0312400S
Citation Numbers: 1995 Conn. Super. Ct. 1171
Judges: MAIOCCO, J.
Filed Date: 2/6/1995
Status: Non-Precedential
Modified Date: 4/18/2021
Count one of Neilsen's complaint alleges product liability against Wang. Count two alleges that CMIC negligently failed to provide a building free of structural defects, and failed to CT Page 1172 equip the building with a fire suppression system capable of providing adequate fire protection without causing undue damage to space leased by the tenants. Count three alleges that GECC negligently allowed the Wang computer to overheat, failed to inspect the computer and failed to remove the computer from flammable objects.
On August 5, 1994, CMIC filed a four count cross complaint against GECC and Wang. Counts two and three, which are the subject of the present motion to strike, both name GECC as the sole defendant and are entitled "contractual indemnity . . ." and "common law indemnity . . ." respectively. On November 9, 1994, GECC filed a motion to strike counts two and three of the cross-complaint on the grounds that in count two, the CMIC fails to state a cause of action distinct from that alleged in count one of the cross complaint and that in count three, CMIC fails to allege the elements required to establish common law indemnification and that those elements cannot be established. CMIC filed a memorandum in opposition to the motion to strike on November 23, 1994.
The purpose of a motion to strike is "to test the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." Gordon v. BridgeportHousing Authority,
GECC argues in support of its motion to strike that count two of CMIC's cross complaint should be stricken because it alleges wrongs on the part of GECC and seeks relief that is identical to that alleged in count one, which alleges breach of contract. GECC contends that because no separate cause of action is stated in count two, that the count should be stricken so that the GECC and the court are not burdened with addressing identical allegations twice.
CMIC argues in opposition to GECC's motion that count two of the cross complaint alleges a separate cause of action and seeks different relief from that in count one. CT Page 1173
Although "[a] party cannot state the same cause of action twice against the same defendants in the same complaint . . .";General Electric Co. v. Bridgeport,
GECC next argues that count three of CMIC's cross complaint should be stricken because CMIC has failed to allege, nor can it establish the elements necessary to maintain an action in common law indemnification.
"[I]f a claim for indemnification is grounded in tort, reimbursement is warranted only upon proof that the injury resulted from the active or primary negligence of the party against whom reimbursement is sought." (Internal quotation marks omitted.) Burkert v. Petrol Plus of Naugatuck, Inc.
GECC argues in support of its motion to strike that CMIC CT Page 1174 has not pleaded and cannot establish that "GECC's negligence, rather than that of any other third party was the direct and immediate cause of the damage sustained by Neilsen" and that "GECC was in control of the situation producing the damage to the exclusion of CMIC and other third parties." GECC argues that because Neilsen alleged negligence against CMIC in the underlying complaint, CMIC is precluded from establishing a claim of common law indemnification.3
CMIC argues in response that it has sufficiently pleaded the above two elements and that allegations of negligence against it in the underlying complaint, do not preclude CMIC from alleging common law indemnification against GECC.
The court finds that CMIC's cross complaint sufficiently alleges each of the required elements of common law indemnification as set forth above. Moreover, "[t]he question whether a party is primarily negligent and thereby liable for indemnification to another tortfeasor is ordinarily for the trier of fact and not appropriate for disposition by the court on a motion to strike." Atkinson v. Berloni, supra,
MAIOCCO J.