LLC v. Greenwich Chateau Condominium Association, Inc. et al. (2010)

Memorandum of Decision Re Motion for Summary Judgment (# 121.00)

In this case, the action by Greenwich Antique Rugs, LLC (the plaintiff) is based on water damage it claims to have suffered as the owner of wool rugs stored in the basement of a condominium building at 4 Lafayette Court in Greenwich.   In its December 24, 2008 complaint, the plaintiff alleges that it leased storage space from defendant Nutmeg Investment Partners, LLC (“Nutmeg”), which is the sole member of defendant 5-15 West Putnam Avenue, LLC (“5-15 West”), in the basement of a building managed by defendant Greenwich Chateau Condominium Association, Inc. (“Chateau”).  According to the complaint, the damage to the rugs was caused by water flowing out of a malfunctioning air conditioning unit owned by Chateau.   Furthermore, the plaintiff alleges that the entire basement of the building was owned by Chateau at the time of lease signing as a common area of the condominium, and that Nutmeg and 5-15 West were neither authorized nor permitted to lease out common areas.

On May 22, 2009, Nutmeg and 5-15 West filed their answer, special defenses and counterclaims.   Presently before the court is a motion of summary judgment (# 121.00) dated October 6, 2010, filed by Nutmeg and 5-15 West seeking summary judgment with respect to count one of their counterclaim.   That count, which sounds in contractual indemnification, alleges that the plaintiff leased storage space from Nutmeg pursuant to a “storage bin lease agreement” executed in January 2007.   According to an uncertified copy of the purported lease agreement attached to the counterclaims, Nutmeg and the plaintiff agreed in pertinent part “that LESSEE will indemnify and hold LESSOR harmless for any damage to said property caused by fire, water, or any other cause whatsoever.   LESSEE shall indemnify and hold LESSOR harmless from all loss, damage or liability of whatever nature caused by the actions of LESSEE, his agents, servants or employees on LESSOR's premises of which the least space is a part ․” Nutmeg and 5-15 West allege in count one that “[a]s a result of the foregoing, and pursuant to the Lease, Plaintiff is liable to Nutmeg and 5-15 [West] for all or part of Plaintiff's claims against Nutmeg and 5-15 [West] herein” and that “Nutmeg and 5-15 [West] are exposed to damages, costs and expenses in connection with the allegations of the Complaint, and have incurred, and will continue to incur in the future, attorneys fees, expenses and costs in connection with their defense of Plaintiff's claims herein.”

In their motion for summary judgment, Nutmeg and 5-15 West claim that the terms of the lease establish that they did not owe a legal duty to the plaintiff at the time of the alleged incident.   The motion is accompanied by a memorandum of law and an uncertified copy of the purported lease.   On December 8, 2010, the plaintiff filed an objection to the motion for summary judgment.   Attached to the objection are several certified exhibits, including corporate information for Chateau, declarations of condominium and excerpts from the deposition of Herbert Johnson, Nutmeg's fiduciary.   On December 13, 2010, the court heard extensive arguments from counsel with respect to the motion for summary judgment.

DISCUSSION

“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 to judgment as a matter of law.”  (Internal quotation marks omitted.)  Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 721 (2010).  “[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 471 (2010).

“[T]he first moment in time when an indemnitee can successfully maintain an action to enforce the terms of an indemnity agreement that indemnifies against both loss and liability is when liability is incurred.”  Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 151 (2002).   Furthermore, General Statutes § 52-598a, which is the statute of limitations for indemnification actions, “expressly provides that a cause of action for indemnity does not arise until the determination of the underlying action against the party seeking indemnification.   Thus, where an indemnity is against loss ․ the loss must actually occur and be ascertainable before the indemnitee can maintain an action.”  Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn.App. 699, 711 (1997).

A procedural situation similar to the one in the present action arose in McKeone v. Manchester I-84 Associates Ltd. Partnership, Superior Court, judicial district of Hartford, Docket No. CV 98 0583788 (May 17, 2000, Hennessey, J.).   In McKeone, the plaintiff brought a negligence action against a defendant (Homeplace), who then proceeded to file a complaint for apportionment, contractual indemnification and common-law indemnification against a third-party defendant (Manchester I-84).  Id. The plaintiff also brought a negligence action against Manchester I-84, and all of the actions were consolidated into one case.  Id. Homeplace then moved for summary judgment against the plaintiff on her negligence claims and against Manchester I-84 on its third-party indemnification claims.  Id. The court found that there was a genuine issue of material fact as to the plaintiff's claims against Homeplace and denied summary judgment as to those claims.  Id. As to third-party indemnification, the court also denied summary judgment, ruling as follows:  “The jury will be asked to make a factual determination as to the negligence of Homeplace.   Whether and when Homeplace's cause of action in indemnification accrues is dependent on the resolution of the plaintiff's negligence complaint ․ The motion for summary judgment on the third-party complaint is premature as there remains a question of fact as to the negligence of Homeplace.   Consequently, the court declines to rule on the issue of whether Manchester I-84 is obligated to indemnify Homeplace under the circumstances of this case, and the motion for summary judgment is denied.”  (Internal citation omitted.)  Id. See also Korbusieski v. CHK-Waterbury Associates, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001916 (August 29, 2008, Roche, J.) (denying without prejudice summary judgment on a tenant's cross claim for indemnification because the landlord's contractual duty to indemnify depends on the outcome of the plaintiff's underlying action for negligence against tenant and landlord);  Yuniskis v. CVS Pharmacy, Inc., Superior Court, judicial district of New Britain, Docket No. CV 04 5000074 (March 8, 2006, Domnarski, J.) (denying summary judgment for the same reasons).

In the present action, Nutmeg and 5-15 West move for summary judgment on their contractual indemnification counterclaim.   Although the action for indemnification appears in a counterclaim and not in a cross-claim against a third-party defendant as in the decisions cited above, the analysis remains the same.   The action for indemnification is contingent on the outcome of the plaintiff's underlying claims against Nutmeg and 5-15 West. At the present time, Nutmeg and 5-15 West, the alleged indemnitees, have not incurred any loss or liability that they can seek indemnification for from the plaintiff.   Their motion for summary judgment is premature.   Accordingly, the motion is denied without prejudice.

David R. Tobin, J.

Tobin, David R., J.