Donna Valente v. Securitas Security Service U.S.A., Inc et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT AS TO THIRD PARTY CLAIMS DATED DECEMBER 15, 2009 (# 148.00) FILED BY THE DEFENDANT SECURITAS SECURITY SERVICES U.S.A., INC.

The plaintiff, Donna Valente (Valente) an employee of Affinion Group, LLC filed a complaint on July 21, 2008 against the defendants, Securitas Security Services U.S.A., Inc. (Securitas) and Joseph Veneri (Veneri), for invasion of privacy, negligence, negligent supervision, negligent infliction of emotional distress, intentional infliction of emotional distress and battery.   The plaintiff claimed that Securitas, a provider of corporate office security services, employed Veneri, as a security officer and assigned Veneri to the office headquarters of Affinion.   Veneri is alleged to have committed certain acts that were personally offensive to Valente causing her damages.   On July 21, 2009 Securitas filed an Amended Apportionment and Third Party Complaint (# 133.00) against the apportionment defendants and Third Party defendants, Trilegiant Corporation and Affinion Group, LLC, the employer of Valente.   The apportionment defendants are treated for the purpose of this decision as one party (Affinion).   Valente has not sued over and made any direct claims against Affinion.   The Amended Apportionment and Third Party Complaint (# 133.00) is in three counts;  the First Count is contractual indemnity based upon a written agreement, the Second Count is apportionment based on Affinion's negligence under Conn.Gen.Stat. §§ 52-572h and 52-102b and the Third Count is common-law indemnification.   Securitas has not sued Affinion for any direct liability, only for the apportionment of any eventual liability of Securitas or by way of indemnity.

Securitas filed this Motion for Summary Judgment as to Third Party Claims dated December 15, 2009 (# 148.00), which is now before the court.   The motion for summary judgment states:  “․ summary judgment should be entered in favor of Securitas USA as to the third party claims on the basis that the testimony of the witnesses for Third Party Defendants, together with the other discovery obtained to date, establishes very clearly that this Court can enter judgment based on the negligence of the Third Party Defendants as a matter of law.   Specifically, Securitas USA submits that the written agreement between the parties clearly establishes the liability of the Third Party Defendants, particularly when reviewed in connection with discovery adduced in this case, including clear indications from those witnesses that the purported damages to the Plaintiff could have been prevented absent the negligence of the Third Party Defendants.”

Securitas filed a Motion for Summary Judgment as to Claims of Plaintiff Donna Valente dated December 15, 2009 (# 146.00).   The four counts in the Valente/Securitas complaint are negligence, negligent supervision, negligent infliction of emotional distress and invasion of privacy.   By a Memorandum of Decision dated June 7, 2010 the court denied the Securitas/Valente Motion for Summary Judgment.   That Memorandum of Decision is incorporated by reference into this Memorandum of Decision.

There appears to be three arguments addressed by Securitas why this court should enter summary judgment in favor of Securitas on the Amended Apportionment and Third Party Complaint (# 133.00).  (1) The Third Party Defendant, Affinion was negligent as a matter of law.  (2) Securitas is entitled to contractual indemnity from Affinion and (3) Securitas is entitled to common-law indemnity from Affinion.   The court will treat Trilegiant Corporation and Affinion Group, LLC as one party for the purpose of this motion and refer to that one party as Affinion.   There are no allegations in the Amended Apportionment and Third Party Complaint (# 133.00) to suggest that the court should not do so.

(1) The Third Party Defendant, Affinion, was negligent as a matter of law.

The Second Count (# 133.00) seeks to apportion any liability found on behalf of Securitas between Securitas and Affinion.   Securitas instituted this action seeking “an apportionment of liability” for Affinion based on the underlying negligence claim in the Valente/Securitas lawsuit.   Apportionment was created by statute.  Gen.Stat. § 52-102b(a).

“This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to Section 52-572h for a proportionate share of the plaintiff's damages as a party to the action.”   Gen.Stat. § 52-102b(f)

“In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this Section.”  Gen.Stat. § 52-572h(c)

In essence Securitas is arguing that Affinion is 100% negligent and solely responsible for the plaintiff's damages and that Securitas by its acts or omissions was zero percent negligent.   Under Gen.Stat. § 52-572h(c) the trier of fact in Valente's case in chief would have to determine that Securitas was negligent, that any negligence of Valente was less than fifty percent and then reduce its monetary damage award by whatever percent of negligence was found on behalf of Valente.   Then the trier of fact would turn to the apportionment claim and allocate those damages between Securitas/Affinion.   The fifty percent threshold is not applicable to this calculation of apportionment negligence.

“Notwithstanding this proof, Securitas somehow believes that it is entitled to summary judgment on the basis of one ‘fact’ that during the short period of time between the beginning of Affinion's investigation into the harassment of its employee in late 2007, including the placement of a hidden camera in Valente's office on December 28, 2007, and the discovery of Veneri's lewd act on January 7, 2008, Affinion did not tell Securitas about the anonymous notes that were left or ask Securitas to assist in Affinion's internal investigation.  (Securitas' Mot. Sum. J. at 3-6.)   According to Securitas, this fact, without more, establishes Affinion's negligence as a matter of law, thereby entitling Securitas to summary judgment on all of its claims.   (Securitas' Mot. Sum. J. at 3-10.)”   Objection to Motion to Summary Judgment dated February 6, 2010 (# 158.00) page 5.

In the aforementioned Memorandum of Decision issued by this count on the companion Securitas/Valente Motion for Summary Judgment, the court found that there are a number of material issues of fact as to the negligence of Securitas.   These findings of material issues of fact are equally applicable to the apportionment negligence as between Securitas and Affinion.   The court finds that the claimed negligent acts or omissions of Securitas as outlined on said Memorandum of Decision are material issue of facts.  Gould v. Mellick and Sexton, 66 Conn.App. 542, 556 (2001).

(2) Securitas is entitled to contractual indemnity from Affinion.

During the period of time mentioned in the Valente complaint, Securitas and Affinion were covered by a Guard Services Master Agreement dated September 30, 2004 (# 150.00, Exhibit F).  In that Agreement Securitas was referred to as the “Vendor” and Affinion was referred to as “Cendant,” Cendant being the name of Affinion's predecessor in title.   The Agreement required Securitas to provide security and guard services to Affinion's corporate locations, including the Affinion offices in Norwalk, Connecticut where Valente was employed.   The Agreement contains the following contractual indemnification provision in paragraph 10 upon which Securitas now seeks summary judgment.

“(b) Cendant shall indemnify, defend and hold harmless Vendor from and against any and all losses, claims, damages, expenses, fees, settlements, penalties and attorney's fees arising out of or resulting from any third party's claim relating to the gross negligence or willful misconduct by Cendant.”

The Agreement also contains a limited choice of law provision and a venue provision in paragraph 26:

“26. GOVERNING LAW/JURISDICTION:  This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New Jersey, without regard to its conflicts of law principles, which are affirmatively hereby waived.   The parties hereto consent to the exclusive jurisdiction of the state and federal courts in the State of New Jersey.”

This type of choice of law provision has been called as “narrowly drawn choice-of-law provision.”   Wall Street Technology Partners, LP v. Kanders, Superior Court, judicial district of Stamford/Norwalk of Stamford, Complex Litigation Docket Number X05-CV 09-50 10098 S (February 2, 2010, Blawie, J.) [49 Conn. L. Rptr. 332].  (Holding the following to be a narrowly drawn choice-of-law provision:  “shall be governed, construed and enforced in accordance with the laws of the State of Delaware, excluding principles of conflict of laws.”)   Already the parties have acknowledged the limited nature of this paragraph 26 by litigating this matter for almost two years in Connecticut with no effort by any party to transfer the matter to the courts of New Jersey or seek separate litigation in the New Jersey courts.

The plain language of the Indemnity provision in paragraph 10(b) requires Affinion to “indemnify, defend and hold harmless Vendor ․ from any third party's claim relating to the gross negligence and wilful misconduct by Cendant.”   In this case Valente is the sole plaintiff.   She was not a party to the Guard Services Master Agreement.   She did not sign any indemnity agreement.   She is entitled to sue for tortious claims in Connecticut where the torts occurred.   She is entitled to have those tort issues determined under Connecticut law and is not required to have the tort issues decided by New Jersey law.   Thus the initial determination of “gross negligence or willful misconduct” must be decided under Connecticut law.

There is no independent cause of action in Connecticut for “gross negligence.”  Matthiessen v. Vanech, 266 Conn. 822, 833 fn.10 (2003);  Decker v. Roberts, 125 Conn. 150, 157 (1939).   Connecticut recognized a major difference between negligent and reckless conduct.   Recklessness “is more than negligence, more than gross negligence.”  Craig v. Driscoll, 262 Conn. 312, 342 (2003);  Dubay v. Irish, 207 Conn. 518, 532 (1988).

“Willful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse.”  Dubay v. Irish, supra, 207 Conn. 533;  Sharkey v. Skilton, 83 Conn. 503, 507 (1910) (“A wilful or malicious injury is one caused by design.   Willfulness and malice alike import intent”).

In the latest case from New Jersey on the enforcement of contractual exculpatory clauses the Superior Court of New Jersey, Appellate Division held that ordinary negligence is distinguished from “more extreme conduct such as reckless, willful or wanton, or palpably unreasonable acts or omissions ․” Stelluti v. Casapenn Enterprises, LLC, 408 N.J. Super 435, 440 (2009).   In a footnote, the Stelluti court disavowed the continued use of the phrase “gross negligence.”

“In any event, even if we adjust our nomenclature and refer to conduct more severe than ordinary negligence, not as ‘gross negligence,’ but as ‘reckless' or ‘palpably unreasonable,’ or ‘willful and wanton,’ essentially the same result obtains:  that the exculpatory agreement does not and should not insulate dangerous conduct that is more culpable than ordinary negligence or carelessness.”   See also Monaghan v. Holy Trinity Church, 215 N.J.Super. 574, 599 (App.Div.1995) ‘[n]egligence differs from gross negligence only in degree, not in kind’).   Although we have previously observed that ‘degrees of negligence have been abandoned in New Jersey,’ ‘the term gross negligence continues to be used to describe the upper reaches of negligent conduct.’   Parks v. Pep Boys, 282 N.J.Super. 1, 17 n.6, 659 A.2d 471.   To avoid semantic confusion, we will eschew using the term ‘gross negligence’ and instead utilize other words connoting ‘egregiousness.’  “ Id. 457, fn. 6.

The court concludes that there is no separate action either in Connecticut or New Jersey for “gross negligence.”   Valente has not sued in gross negligence.   Thus the contractual indemnification claim must fail as to the claim of gross negligence.

Valente has alleged three counts sounding in negligence against Securitas, none of which amount to “willful misconduct.”   Valente has alleged in another count two alternate theories of invasion of privacy;  intentional and reckless.   The indemnity provision also covers “wilful misconduct by Cendant.”   In the other June 7, 2010 Memorandum of Decision this court concluded that Valente's allegations against Veneri amounted to intentional invasion of privacy but that the supporting documentation in the summary judgment proceeding fell short of establishing intentional invasion of privacy against Securitas.   The court denied the Securitas/Valente Motion for Summary Judgment for other reasons.   Securitas has not briefed New Jersey law defining willful misconduct.   The court notes that New Jersey and Connecticut define the term “wilful” in a similar fashion, requiring an element of intent.  Smith v. Whitaker, 160 N.J. 221, 241 (1999);  Fielder v. Stonack, 141 N.J. 101, 124-26 (1995);  Foldi v. Jeffries, 93 N.J. 533, 549-50 (1983);  G.S. v. Department of Human Services, 157 N.J. 161, 178-79 (1999);  Executive Commission on Ethical Standards v. Salmon, 295 N.J.Super. 86, 105-07 (App.Div.1996).   This court in the June 7, 2010 Memorandum of Decision only considered the invasion of privacy claim against Securitas viable only on its reckless alternative based on the Valente pleadings as filed.   Neither Connecticut nor New Jersey require an element of intent in order to prove recklessness.   Thus willful misconduct and recklessness are not the same.

The court finds that the contractual indemnity provision in paragraph 10(b) is not applicable, since “gross negligence” and “willful misconduct” as defined by both New Jersey and Connecticut are not in Valente's claim against Securitas.

(3) Securitas is entitled to common-law indemnity from Affinion.

The claim of common law indemnity is not controlled by the contractual indemnity provision of paragraph 10(b).  Connecticut law therefore controls.   Securitas is claiming indemnity as opposed to contribution in this motion for summary judgment.

The doctrines of indemnification and contribution are based on fundamentally different principles.  [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others ․ (citations omitted;  emphasis added.)  Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697-98 n.3, 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.”  ․ Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 697-98, 535 A.2d 357 (1988);  Burkert v. Petrol Plus of Naugatuck Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990);  Kaplan v. Merberg Wrecking Corp., [supra, 152 Conn. 412-16].”  (Emphasis added.)  Skuzinski v. Bouchard Fuels, Inc., supra, 697.   Thus, the common-law doctrine of indemnification permits a tortfeasor to assert a claim on against another liable tortfeasor.

Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42 (1999).

Here the claim for common-law indemnification is based on tort.

[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 ․ 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 to be negligent.

Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74 (1990).

Valente has alleged negligent acts and omissions of Securitas in its hiring and supervision of Veneri.   Veneri was an employee of Securitas.   Affinion did not hire Veneri and did not participate in the hiring process.   Affinion did not supervise Veneri.   The Guard Services Master Agreement did not permit Affinion to supervise or control the security personnel placed in Affinion's offices by Securitas.   Securitas had its own supervisory personnel on and off the Affinion premises.   Securitas has failed to demonstrate any facts showing that Affinion was “in control of the situation to the exclusion of the plaintiff.”   Even during the brief period Affinion conducted an investigation Securitas supervised and controlled Veneri.   This court has already found in the other June 7, 2010 Memorandum of Decision that the negligence of Securitas is a material issue of fact.   Securitas had been informed by Affinion right after the November 2007 letter of the harassment situation.   Securitas knew of its security guard's hiring and supervision practices.   This court finds that there are material issues of fact as to the common-law indemnity elements (2), (3) and (4).

For all the reasons stated, the Motion for Summary Judgment as to Third Party Claims filed by Securitas Security Services USA, Inc. dated December 15, 2009 (# 148.00) is denied.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.