Joyce Gregoire, Administratrix of the Estate of Richard Gregoire v. Michaud Enterprises LLC et al.
MEMORANDUM OF DECISION THIRD-PARTY DEFENDANT SIROIS CARPENTRY, LLC'S MOTION FOR SUMMARY JUDGMENT
Pending before the court in this wrongful death action is a motion for summary judgment filed by Sirois Carpentry, LLC (Sirois), as to the cross claim brought by defendants, Michaud Enterprises, LLC (Michaud Enterprises) and Gilles Michaud (collectively, Michaud defendants), alleging common-law indemnification.1 The plaintiff Joyce Gregoire is the administratrix of the estate of Richard Gregoire, the decedent.
In her two-count complaint, the plaintiff alleges the following facts. In June 2005, while the Michaud defendants were acting as general contractors on a residential construction project, the decedent, who was performing carpentry work for the project, fell through a hole in the floor. He sustained serious injuries resulting in his death. The decedent's injuries and death were caused by the negligence of the Michaud defendants in that they failed to maintain and inspect the floors, failed to cover or cordon off the hole in the floor in a timely manner, or failed to instruct others to do so.
On October 15, 2007, the Michaud defendants filed an apportionment complaint against, Sirois and Ernest McCurda.2 Therein, the Michaud defendants allege, inter alia, that, if the decedent was injured in the manner alleged in the complaint, his injuries and death were the result of the negligence of Sirois and McCurda, and that those defendants are or may be liable for a portion of the damages and injuries that the plaintiff allegedly sustained.
On December 28, 2007, the Michaud defendants filed an answer and three special defenses to the plaintiff's complaint in which they admit that, on June 27, 2005, the decedent was performing carpentry work on the construction site, and that he died on that date. They deny that they were the general contractors for the project and that their negligence caused the decedent's injuries or his death. They allege the following special defenses: the decedent's injuries and death were caused in whole or in part by his own negligence; the area and circumstances in which the decedent was working were not under their control, but rather under the control of an independent contractor; and they are immune from liability for the plaintiff's claims pursuant to General Statutes §§ 31-284 and 31-291, because workers' compensation benefits were paid to the decedent's estate.
Michaud filed a motion for summary judgment as to the plaintiff's claims against him on January 18, 2008, in which he argued that he was entitled to judgment because the plaintiff could not produce any evidence that his conduct was the proximate cause of the decedent's fall. The court, Prescott, J., denied the motion, noting the following: “There is a genuine issue of material fact regarding the extent to which the general contractor, Gilles Michaud, had delegated responsibility for workplace safety to the subcontractor who employed the plaintiff's decedent. In addition, although there is no evidence as to the precise manner in which the plaintiff's decedent fell into the chimney hole, the plaintiff has brought forth sufficient facts that would tend to demonstrate that there was a defective condition at the site-the failure to cover the chimney hole-and that the accident would not have occurred but for that defect.”
On June 20, 2008, the Michaud defendants filed the two-count cross claim against Sirois and McCurda that is presently before the court.3 Count one is against Sirois, and count two is against McCurda. Therein, they allege essentially the same facts that they allege in their apportionment complaint against these defendants, with several exceptions. Specifically, they allege the following in count one. Sirois was under contract to and was performing work on framing the structure that decedent was working on when he fell. Sirois assumed the responsibility for and control of the framing of the structure. If the decedent was injured and died in the manner alleged in the complaint, his injuries and death were caused by the negligent acts or omissions of Sirois in that it did not cover or cordon off the hole; it did not instruct its employees or subcontractors as to proper safety measures regarding the hole; it constructed the hole in a manner that left it open; it did not monitor the actions of its employees, agents and subcontractors to ensure that they followed proper safety procedures; it did not monitor the health of its agents and subcontractors, including the decedent to assess their health and fitness to perform the work and did not tell the decedent to stop working when it knew or should have known that he did not feel well. They add that Sirois did not notify either of them that it intended to cut a hole in the floor or construct a floor with an opening in it in the area where the decedent fell.
Furthermore, the Michaud defendants allege that the negligence of Sirois, its agents, servants, employees or subcontractors, if it occurred, was active and primary, and that any negligence on their part was passive and secondary; Sirois was in control of the situation, to the exclusion of them; they did not know about the negligence of Sirois, did not have a reason to anticipate it, and they reasonably relied on Sirois not to be negligent in that it was in the business of constructing and framing residential structures. Finally, they allege that if they are held liable to the plaintiff, Sirois is liable to indemnify them for any judgment that the court renders against them, and for the attorneys fees, expenses and other costs associated with this litigation. Sirois has moved for motion for summary judgment as to count one of the cross claim on the ground that it cannot, as a matter of law, be liable for indemnification on the basis of the theory alleged in that count. The court heard oral argument on the motion on July 12, 2010.4
“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled of judgment as a matter of law.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
Sirois contends that it is entitled to summary judgment on the Michaud defendants' cross claim against it for indemnification as a matter of law because the plaintiff will only be able to succeed in her negligence claims against the Michaud defendants if she proves that they had possession and control over the work site. This would, in turn, establish a fact that precludes the Michaud defendants from pursuing an indemnification claim against Sirois, because a showing that the Michaud defendants had any control would necessarily mean that Sirois did not have control of the circumstance that caused the decedent's injuries to the exclusion of the Michaud defendants. Michaud Enterprises objects to the motion on the ground that even though it expects to prove that Sirois was in control of the framing that the decedent was working on when he was injured, Sirois has not established that there is no genuine issue of material fact as to whether Michaud Enterprises might be held to be vicariously liable for the “primary/active negligence of Sirois.” Michaud filed a separate objection to the motion in which he points out that the plaintiff alleges several ways in which the Michaud defendants may have been negligent, some of which do not depend on who had control of the specific area where the decedent was working at the time he was injured, and would provide a basis for them to seek indemnification from Sirois.
Indemnification is premised on the following principles. “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.” (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997).
Accordingly, “[t]o assert a claim for [common-law] indemnification ․ an out-of-pocket defendant must show that (1) the party against whom the indemnification is sought was negligent; (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and the resulting injuries and death; (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent ․ The presence of two tortfeasors is thus required for a viable claim of indemnification ․ one, whose passive negligence resulted in a monetary recovery by the plaintiff, and a second, whose active negligence renders him liable to the first by way of reimbursement.” Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).
In several cases, the judges of the Superior Court have used the following principles to decide whether a defendant could not, as a matter of law, be held responsible for indemnifying its codefendant. “[T]o ascertain whether a third-party defendant cannot, as a matter of law, be liable to the defendant for the claims by the plaintiff, it is necessary to assume that the jury found that the plaintiff established the elements of the cause or causes of action in the first-party complaint against the defendant ․ It is settled law that if a judgment in the first action against the defendant third-party plaintiff rests on a fact fatal to recovery in the action over against the third-party defendant, the latter action cannot be successfully maintained.” (Citations omitted; internal quotation marks omitted.) Lassow v. Jefferson Pilot Financial Ins. Co., Superior Court, judicial district of Hartford, Docket No, CV 01 0807131 (September 8, 2003, Shapiro, J.) (35 Conn.L.Rptr. 496, 501-02).
Our Supreme Court has stated, however, that the rationale for allowing indemnification, i.e., that the passive tortfeasor “is chargeable merely with constructive fault” does not apply, or “is negatived, wherever it appears that the party seeking indemnity was himself guilty of affirmative misconduct which was a proximate cause of the injury in question.” Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 540, 52 A.2d 862 (1947).
Applying these principles, judges of the Superior Court have held that, as a matter of law, one defendant cannot be required to indemnify its codefendant for the codefendant's negligence if the plaintiff's claims against the codefendant are for intentional torts or violations of the Connecticut Unfair Trade Practices Act, in that both claims would require the plaintiff to prove that the codefendant engaged in affirmative misconduct. See Id.
Similarly, in Smith v. New Haven, supra, 258 Conn. 66, the court concluded that the sole proximate cause doctrine, which precludes a municipality from being held liable for a highway defect unless the defect was the sole proximate cause of the injury, also precludes the municipality from seeking indemnification from third parties. As the court explained, “[a] finding of two culpable tortfeasors ․ is logically inconsistent with our definition of sole proximate cause because a determination that the defect in question is the sole proximate cause of the plaintiff's injuries implicitly relieves any third parties from liability. There is, therefore, no right to indemnification of the part of the municipality.” Id.
Nevertheless the Connecticut Supreme Court has cautioned that “the rule supported by the great weight of authority is that a judgment in favor of the plaintiff in an action against two or more defendants is not res judicata or conclusive of the rights and liabilities of the defendants inter se in a subsequent action between them, unless those rights and liabilities were expressly put in issue in the first action ․ and determined by the judgment in the first action ․ The reason that the indemnity claim is not finally determined by the first party judgment lies in the fact that indemnification implicates different factual and legal considerations which may be outside of the matters determined in the first party plaintiff's claim.” (Citations omitted; internal quotation marks omitted.) Malerba v. Cessna Aircraft Co., 210 Conn. 189, 197-98, 554 A.2d 287 (1989).
Here, in order to prevail in her negligence claim against the Michaud defendants, the plaintiff must prove each of the following essential elements “duty; breach of duty; causation; and actual injury.” (Internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002).5 It is noted that the plaintiff has not filed any claims against Sirois. Therefore, the question of whether the Michaud defendants' negligence was active or passive, as compared to that of Sirois, will not be determined in deciding her claims. Further, in ruling on the Michaud defendants' apportionment claim against Sirois, “the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party. An indemnitee, however, must prove that the negligence with which it had been found chargeable was passive or secondary, while the indemnitor had been negligent and in a manner which was active and primary ․ The principles are different and are articulated in a different manner. Thus, a finding that a given defendant was liable to the plaintiff does not necessarily determine whether that responsibility was based on a passive negligence which might, therefore, entitle that defendant to a full reimbursement from the other defendants based upon indemnification principles.” (Citation omitted; internal quotation marks omitted.) Malerba v. Cessna Aircraft Co., supra, 210 Conn.198.
Thus, a judgment for the plaintiff in this action as to her claims against the Michaud defendants does not, as a matter of law, “[rest] on a fact [that would be] fatal” to the Michaud defendants' indemnification claim against Sirois. Accordingly, Sirois has not met its burden of establishing that it is entitled to summary judgment on the Michaud defendants' cross claim against it for indemnification as a matter of law.
For all the foregoing reasons, Sirois' motion for summary judgment as to count one of the Michaud defendants' cross claim is denied.
1. FN1. Sirois was originally made a defendant in this action, along with Ernest McCurda and Steven Gregoire, by way of an apportionment complaint filed by the Michaud defendants on October 15, 2007. Thereafter, on June 20, 2008, the Michaud defendants filed cross claims against all three apportionment defendants alleging common-law indemnification.
2. FN2. On November 30, 2009, this court granted Steven Gregoire's motion for summary judgment as to the Michaud defendants' apportionment complaint and their cross claim against him for indemnification. That same day, the Michaud defendants withdrew both of those claims as to Steven Gregoire.
3. FN3. On September 19, 2008, the court, Graham, J., granted Michaud's motion to implead Cambridge Mutual Fire Insurance Company, Edward Deming Insurance Agency and Lucious “Buzz” Whitaker as defendants in the action on the ground that they may be obligated to indemnify him. It is also noted that Cambridge Mutual filed an action for a declaratory judgment as to the incident that is at issue in the present action. See Cambridge Mutual Fire Ins. Co. v. Michaud, Superior Court, judicial district of Hartford, Docket No. CV 07 4032988. The following are defendants in that action: Michaud, Michaud Enterprises, Joyce Gregoire, Edward Deming Insurance Agency, Whitaker, Sirois Carpentry, McCurda and the Ohio Casualty Insurance Company. That action is still pending.
4. FN4. On July 12, 2010, the court also heard oral argument on McCurda's motion for summary judgment, which he filed on December 14, 2009. The court addresses that motion in a separate memorandum.
5. FN5. In order to ascertain more precisely what the plaintiff must establish to prevail on her negligence claims against the Michaud defendants, it is necessary to ascertain the relationship between the parties. That relationship cannot be determined from the allegations in the plaintiff's complaint, the allegations in the cross claim or from the evidence that the parties submitted to the court in conjunction with this motion. If the Michaud defendants were the general contractors on the project, Sirois was a subcontractor, the decedent was employed by Sirois and the decedent's injuries were caused by the negligence of the Michaud defendants in failing to maintain or inspect the floors, failing to cover or cordon off the hole, or to instruct others to do so, they can be held liable for their own negligence. See Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003) (“general contractor may, depending on the circumstances, be held liable to an employee of its subcontractor for its own negligence”). In such circumstance, the Michaud defendants would be entitled to indemnity from Sirois if they can show that their negligence was passive compared to the negligence of Sirois, and Sirois had exclusive control over the specific area where the accident occurred.Further, Gilles Michaud submitted an affidavit in support of his objection to Sirois' motion for summary judgment in which he attests, inter alia, that he is one of the owners of the property where the decedent was working when he was injured. If the decedent was a business invitee, “the defendants owed [him] a duty to maintain their premises in a reasonably safe condition.” (Internal quotation marks omitted.) Palmieri v. Stop & Shop, Co., 103 Conn.App. 121, 123, 927 A.2d 371 (2007). If Michaud hired Sirois as an independent contractor, the following is relevant. “The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work ․ The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor ․“Exceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation ․” (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 291-92, 181 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). Under this scenario, Michaud could be liable to the plaintiff for Sirios's negligence, if any, if one of the exceptions applies.
Peck, A. Susan, J.