Anthony J. Pellecchia, Admin. v. Connecticut Light and Power Company et al. (2011)

MEMORANDUM OF DECISION

This matter is before the court concerning the third party defendants Connecticut Light and Power Company (CL & P), Northeast Utilities (NU), and Northeast Utilities Service Company's (NUSC) (collectively “CL & P third party defendants” or movants) motion to strike (# 335) the amended third party complaint of defendant/third party plaintiff Quinebaug Valley Emergency Communications, Inc. (QVEC) (# 315) (third party complaint).   The court heard oral argument concerning the motion on April 25, 2011.   After considering the parties' arguments, including those in their reply briefs, the court issues this memorandum of decision.

I

Background

The plaintiff commenced this action with the service of his complaint, dated May 30, 2008.   In that complaint, the plaintiff, as administrator of the estate of Anthony E. Pellecchia (decedent), sought to recover damages from various defendants, as the result of a July 28, 2006 incident in Killingly, Connecticut, in which the decedent allegedly suffered serious personal injuries, from which he died, as a result of a motorcycle which he was operating coming into contact with an energized electrical line on or near the roadway.

The CL & P third party defendants were originally named as defendants in this matter.   Previously, by memorandum of decision dated May 13, 2009 (# 242), the court entered a nonsuit against the plaintiff as to his claims against the CL & P third party defendants.   The court's decision was affirmed, per curiam, by the Appellate Court.   See Pellecchia v. Connecticut Light And Power Co., 126 Conn.App. 903, 12 A.3d 641 (2011).

QVEC alleges, in its third party complaint, that the plaintiff alleges, in the fifth count of the plaintiff's May 30, 2008 complaint (complaint), that QVEC was negligent in failing to provide timely notice to the CL & P third party defendants that there were downed power lines on Mashentuck Road after QVEC was notified thereof on July 28, 2006.   See third party complaint, ¶ 2.   QVEC further alleges that “[t]he plaintiff further alleges ․ that as a result of the negligence of ․ QVEC, the plaintiff's decedent contacted the downed power lines on Mashentuck Road and was electrocuted ․” See third party complaint, ¶ 3.   The allegations in the complaint are discussed further below.

QVEC also alleges that, after receiving a telephone call from a member of the general public advising them that there were downed power lines on the road, the CL & P third party defendants were negligent in failing to de-energize the downed power lines prior to the plaintiff's decedent's electrocution on July 28, 2006.   See third party complaint, ¶ 11.

In particular, QVEC alleges that the CL & P third party defendants were negligent in one or more ways:  “(a) they failed to de-energize the downed power lines on Mashentuck Road and remove same from the traveled portion of Mashentuck Road prior to the plaintiff's decedent's electrocution at 11:30 p.m. on July 28, 2006 although they could have done so in the exercise of reasonable care;  (b) they failed to have in place a system that would de-energize the power lines on Mashentuck Road after a lightning strike so as not to expose the general public and the plaintiff's decedent to energized power lines;  (c) they breached their duty to warn and protect the public from danger in violation of Connecticut General Statutes Section 16–11 and Section 16–11–102 of the Regulations promulgated thereunder.” ¹  See third party complaint, ¶ 11.

Further, QVEC alleges that its own alleged negligence, which it denied, was passive in nature and the “direct and immediate cause of the plaintiff's decedent's electrocution was the active negligence” of the CL & P third party defendants.   See third party complaint, ¶ 12.   In addition, QVEC alleges that the CL & P third party defendants “had exclusive control over the means and methods of transmitting electricity over the power lines on Mashentuck Road and had exclusive control over de-energizing downed power lines on Mashentuck Road and removing same from the traveled portion of Mashentuck Road to the exclusion of” QVEC. See third party complaint, ¶ 13.

QVEC seeks indemnification from the CL & P third party defendants for any judgment entered against QVEC.

II

Standard of Review

The standard of review on a motion to strike is well established.  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition For Justice In Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   Legal conclusions in a complaint are not deemed to be admitted.   See Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).

III

Discussion

In their motion to strike, the movants assert that QVEC cannot, as a matter of law, establish an essential element of a common law indemnification claim, that they were in exclusive control of the “situation” forming the basis thereof.   They contend that QVEC has not alleged that they had exclusive control over QVEC's operation as a 911 emergency dispatch provider, to the exclusion of QVEC. In the alternative, they argue that the claim fails because they could not have had exclusive control over Mashentuck Road as a matter of law.

In response, QVEC contends that it has alleged that the CL & P third party defendants had exclusive control over the power lines on Mashentuck Avenue and were the ones who would determine what, if any, system was to be put in place to de-energize the power lines after a lightning strike, irrespective of notification of the downed power lines by any 911 emergency call center such as QVEC. QVEC contends that what the CL & P third party defendants did with information received was totally within their control.   QVEC argues that the movants have not satisfied their burden to show that no jury could reasonably conclude that they were in control of the dangerous situation, which QVEC defines as “the downed power lines, and the means and methods of de-energizing them or otherwise rendering them safe.”   See QVEC's memorandum in opposition (# 357), p. 4. Also, QVEC argues that the issue of exclusive control is usually a fact determination for the trier of fact.   In addition, it argues that there are factual disputes and ongoing discovery concerning them.

“The law governing indemnification for torts in Connecticut is well settled.   [I]ndenmity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest ․ [.] Ordinarily there is no right of indemnity ․ between tortfeasors ․ There is, however, an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries, thus superseding the indemnitee's passive negligence ․ A party is entitled to indemnification, in the absence of a contract to indemnify, only upon [proving] that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct ․ When 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.”  (Emphasis in original;  citations omitted;  internal quotation marks omitted.)   Gordon v. O'Neall Construction, LLC, Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 07 5003336 (May 27, 2009, Jennings, J.T.R.).

“Where ․ 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 ․ Indemnity shifts the impact of liability from passive joint tortfeasors to active ones.”  (Citations omitted;  internal quotation marks omitted.)  Kyrtata v. Stop & Shop, Inc., 205 Conn. 694, 697–98, 535 A.2d 357 (1988).

A “third party complaint must allege facts sufficient to establish at least four separate elements in order to maintain a common law action for indemnity.   These elements are:  (1) that the other tortfeasor was negligent;  (2) that [that] negligence, rather than [the claimant' s], was the direct, immediate cause of the accident and injuries;  (3) that [the other tortfeasor] was in control of the situation to the exclusion of [the claimant];  and (4) that [the claimant] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent.”  (Internal quotation marks omitted.)  Skuzinski v. Bourchard Fuels, Inc., 240 Conn. 694, 698, 694 A.2d 788 (1997).   With regard to the issue of exclusive control, the Supreme Court reiterated that “to maintain a common law action for indemnity, not based on statute or express contract, the facts alleged ․ must establish that the third-party defendants were in control of the situation to the exclusion of [the claimant].”  (Internal quotation marks omitted.)  Id., 703.  “It is plausible to define exclusive control over ‘the situation’ as exclusive control over the dangerous condition that gives rise to the accident.”  Id., 706.

The Supreme Court also noted that ordinarily the applicable rule is “that the question of exclusive control should not be resolved on a motion to strike because the absence or presence of exclusive control is a question of fact.”   Id., 704.   However, the court went on to state, “[n]onetheless, special circumstances may give rise to the question of whether, in light of the facts alleged in the third-party complaint, any reasonable juror could find that the third-party defendants had exclusive control of the situation.   Under such circumstances, this issue becomes a question of law.”  Id., 705.

“[I]n a circumstance where ‘the disagreement of the parties does not, upon close examination, turn upon any meaningful dispute about the alleged facts' or a circumstance where under the factual scenario alleged, ‘no reasonable juror could find that the third party defendants had exclusive control over the situation,’ the issue should be decided by the court as a matter of law.   Skuzinski, supra, 240 Conn. at 705–06.”  Gordon v. O'Neall Construction, LLC, supra, Superior Court, Docket No. X08 CV 07 5003336.

“It is established that an allegation of exclusive control in a third party complaint for indemnification must ․ be construed as against the allegations of the [original] plaintiff's complaint because it is the grounds alleged in the [original] complaint which will be the basis for holding [the party seeking indemnity] liable to the [original] plaintiff[.]”  (Internal quotation marks omitted.)  Gordon v. O'Neall Construction, LLC, supra, Superior Court, Docket No. X08 CV 07 5003336.   Accordingly, the court looks also to the allegations concerning QVEC in the plaintiff's complaint of May 30, 2008.   As noted above, QVEC's third party complaint refers to the fifth count of the plaintiff's complaint.

In the complaint, the allegations in paragraphs 1–20 of the count one are incorporated by reference in the count five.   In paragraph 5, the plaintiff alleges that QVEC is a corporation “with responsibility for management of communication as a 911 emergency notification and dispatch system in northeastern Connecticut and acts as an agent or servant of ․ CL & P as well as to the general public.”

As to the events of July 28, 2006, the plaintiff alleges that the energized power lines fell at approximately 6:00 p.m. See complaint, count five, ¶ 12.   The plaintiff alleges that QVEC was informed of this at approximately 6:15 p.m. See complaint, count five, ¶ 13.   The plaintiff also alleges that customers informed CL & P of the downed energized power lines and, thereafter, at approximately 11:30 p.m., QVEC informed CL & P of the downed energized power lines.   See complaint, count five, ¶ 15.   The plaintiff alleges that the decedent encountered the energized power line “[o]n or about 11:30 p.m.” See complaint, fifth count, ¶ 16.

In paragraph 21 of count five of the complaint, the plaintiff alleges that the incident, injuries, losses, death and damages were caused by QVEC's negligence and carelessness.   The plaintiff alleges that QVEC was negligent in one or more of the following ways, in that it:  “[b]reached its duty to safeguard the Plaintiff by proper and timely notification to reduce the time for de-energizing said power lines;  ․ [b]reached its duty to properly and adequately train its employees of proper procedures and protocols for notification;  ․ [b]reached its duty to use ․ the priority level system for emergency response involving electrical hazards;  ․ [b]reached it[s] duty as an agent and or partner of ․ CL & P regarding notification;  ․ [f]ailed to promptly transmit and communicate the need for an electrical line crew to de-energize a downed electrical power line;  [f]ailed to promptly prioritize its calls and treat the emergency call top priority;  ․ [f]ailed to conclude that the downed electric power line caused an imminent threat to the safety of all persons in the area;  ․ [f]ailed to communicate to ․ CL & P the true nature of the downed line;  [f]ailed to keep members of the public and the Plaintiff as a member of the public informed as to when the downed line would be de-energized[.]”  See complaint, count five, ¶ 21.   Thus, the allegations against QVEC center on timely notification, the need for an electrical line crew, prioritization of emergency calls, assessment of threat to safety, communication of the true nature of the downed line, and failing to keep members of the public informed as to when de-energizing of the downed line would occur.   The plaintiff's allegations against QVEC do not include any assertion that QVEC had an obligation to turn off the electric power.   Thus, the “situation” alleged in the complaint as to QVEC goes well beyond and differs from allegations concerning “the downed power lines, and the means and methods of de-energizing them or otherwise rendering them safe,” as to which QVEC contends that the CL & P defendants had exclusive control.

Under these circumstances, the allegations in the third party complaint do not “establish that the third-party defendants were in control of the situation to the exclusion of [the claimant].”  (Internal quotation marks omitted.)   Skuzinski v. Bourchard Fuels, Inc., supra, 240 Conn. 703.   As to the issue of “exclusive control” as pleaded there is no “meaningful dispute about the alleged facts.”  Id., 705.   As a matter of law, “no reasonable juror could find that the third party defendants had exclusive control over the situation.”  Id., 706.

In addition, the court notes that, in opposing the motion to strike, QVEC refers to ongoing discovery and has provided a notice of deposition and an objection thereto.   See QVEC's Exhibit 2. “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268–69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   That discovery is ongoing is not material to the resolution of the CL & P third party defendants' motion to strike.

In view of the above-stated resolution of the argument concerning exclusive control over the “situation,” the court need not consider the CL & P third party defendants' other arguments, that a jury's finding of negligence against QVEC would prevent a finding that QVEC was not a direct, immediate cause of the decedent's injuries, and that the CL & P third party defendants could not have had exclusive control over Mashentuck Road.

CONCLUSION

For the foregoing reasons, the motion to strike the amended third party complaint is granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Section 16–11–102(a) provides, “Every utility shall use every effort to properly warn and protect the public from danger and shall exercise all possible care to reduce the hazard to which employees, customers and others may be subjected by reason of its equipment and facilities.”.  FN1. Section 16–11–102(a) provides, “Every utility shall use every effort to properly warn and protect the public from danger and shall exercise all possible care to reduce the hazard to which employees, customers and others may be subjected by reason of its equipment and facilities.”

Shapiro, Robert B., J.