Bonita Criscuolo v. Town of East Haven et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 152)

FACTS

This action arises from an underlying claim alleging negligence against both the cross-claim defendants and the cross-claim plaintiffs.   On April 6, 2011, the plaintiff, Bonita Criscuolo, filed a six-count amended complaint against the defendants, East Haven Fall Festival (fall festival), East Haven (town);  Ralph Buccitti;  Ralph Buccitti doing business as Buccitti Italian Ice;  Susan Spadacenta doing business as Paul's Apizza;  and M.P.C., Inc. doing business as Paul's Apizza, alleging that the plaintiff was injured due to the carelessness and negligence of the defendants.   On May 17, 2011, the fall festival and the town, the cross-claim plaintiffs,¹ filed a twelve-count cross claim against the cross-claim defendants,² Susan Spadacenta and Susan Spadacenta doing business as Paul's Apizza.³

The relevant counts are as follows.   Counts one, two, seven and eight allege contractual indemnification against the cross-claim defendants.   Specifically, counts one and seven are brought by the fall festival against Spadacenta and Spadacenta doing business as Paul's Apizza respectively and counts two and eight are brought by the town against Spadacenta and Spadacenta doing business as Paul's Apizza respectively.   The cross-claim plaintiffs allege the following facts as to counts one, two, seven and eight.   On or about September 5, 2008, Criscuolo was injured when she tripped on a trailer hitch at the fall festival on the East Haven town green.   On or about September 14, 2010, Criscuolo brought suit against the cross claim plaintiffs alleging negligence.   The area where Criscuolo was injured was “maintained and/or controlled by” the cross-claim defendants.   On or about May 13, 2008, the cross-claim defendants entered into a vendor agreement with the cross-claim plaintiffs that was in full effect on September 5, 2008.   The insurance contract contained an indemnification clause which required the cross-claim defendants “to indemnify and hold harmless” each of the cross-claim plaintiffs.   On or about December 21, 2010 and December 23, 2010, the cross-claim plaintiffs demanded a defense and indemnification.   The demand was denied on January 18, 2011.   The cross-claim plaintiffs allege that if the cross-claim defendants are found liable to Criscuolo or if either of the cross-claim plaintiffs are found liable to Criscuolo that the cross-claim defendants must indemnify the cross-claim plaintiffs.

Counts three, four, nine and ten allege breach of contract against each of the cross-claim defendants.   Counts three and nine are brought by the fall festival against Spadacenta and Spadacenta doing business as Paul's Apizza respectively.   Counts four and ten are brought by the town against Spadacenta and Spadacenta doing business as Paul's Apizza respectively.   The cross-claim plaintiffs allege the following as to counts three, four, nine and ten.   Pursuant to the vendor agreement the cross-claim defendants were to obtain liability insurance that listed the cross-claim plaintiffs as additional insureds under the insurance contract.⁴  The cross-claim defendants failed to obtain such insurance and the cross-claim plaintiffs have suffered damages and may continue to suffer damages.

On June 24, 2011, the cross-claim defendants filed a motion to strike accompanied by a supporting memorandum of law.   The cross-claim defendants move to strike counts one, two, three, four, seven, eight, nine and ten on the ground that the contractual indemnification clause is against public policy.   In the same motion, the cross-claim defendants move to strike, in the alternative, counts three, four, nine and ten on the ground that the breach of contract claims do not arise out of the same transaction as the underlying negligence claim brought by Criscuolo.   On July 5, 2011, the cross-claim plaintiffs filed a memorandum of law in opposition to the motion accompanied by the vendor agreement signed by the parties.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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).  “[A motion to strike] does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

The cross-claim defendants attached the vendor agreement to the motion to strike as an exhibit to be considered as evidence.  “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 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).   In ruling on the motion to strike, the court will not consider the vendor agreement in its entirety.   The court is limited to the facts alleged in the complaint and cannot look to any outside evidence.   The vendor agreement is outside evidence and the relevant portion, namely the indemnification clause, is provided in the complaint.   Therefore, the court will not consider the vendor agreement in ruling on the motion to strike.

The cross-claim defendants, in seeking to strike counts one, two, three, four, seven, eight, nine and ten, argue that the indemnification clause relied upon by the cross-claim plaintiffs “violates public policy and is unenforceable as a matter of law.”   In the alternative, the cross-claim defendants argue that counts three, four, nine and ten should be stricken because the breach of contract claim asserted by the cross-claim plaintiffs does not arise out of the same transaction as the underlying negligence action.   In opposition, the cross-claim plaintiffs argue that the indemnification clause is valid under Connecticut law and that the breach of contract claim arises out of the same transaction as the underlying negligence claim.

“The law does not favor contract provisions which relieve a person from his own negligence ․ Such provisions, however, have been upheld under proper circumstances.”  (Internal quotation marks omitted.)  B & D Associates, Inc. v. Russell, 73 Conn.App. 66, 72, 807 A.2d 1001 (2002).  “An intention to indemnify one against his own negligence must be expressed in clear and unequivocal language.”  (Internal quotation marks omitted.)  Burkle v. Car & Truck Leasing Co., 1 Conn.App. 54, 56, 467 A.2d 1255 (1983).  “In modern commerce, indemnity clauses are no longer so unusual as to require such specific mention of the indemnitee's conduct as being within the scope of the indemnifying obligation ․ The unambiguous language of an indemnity clause should be given effect as expressing the parties' intention ․ The intention of the parties is to be ascertained from the language used in the contract and that language must be given its common meaning and usage where it can be sensibly applied to the subject matter of the contract ․ A court will not torture words to import ambiguity ․” (Citations omitted;  internal quotation marks omitted.)  Lazidano v. General Motors Corp., 34 Conn.Sup. 684, 687–88, 388 A.2d 842 (App.Sess.1977).

The cross claim alleges that the vendor agreement, in relevant part, provides:  “Vendor agrees to indemnify and hold harmless committee and the town of East Haven with respect to any damage, loss, claim, or liability whatsoever which may arise in connection with this agreement or vendor's performance of it or participation in the festival.”   The court must “ascertain [the intention of the parties] from the language used in the contract.”   Merriam–Webster's dictionary defines any as meaning “one or more—used to indicate an undetermined number or amount.”   Merriam–Webster's Collegiate Dictionary (10th Ed.1999).   Merriam–Webster's dictionary defines whatsoever as “whatever,” which is defined as “of any kind at all.”   Merriam–Webster's Collegiate Dictionary (10th Ed.1999).   The common meaning of the language used in the indemnity clause demonstrates that the intention of the parties was to indemnify the cross-claim plaintiffs from all possible liability and all possible claims.   The common meaning of the words is not ambiguous and encompasses a claim for negligence.   Therefore, the indemnity clause is not against public policy.

When addressing the cross-claim defendants' second argument the court must look to whether the breach of contract claim and the underlying negligence claim arise from the same transaction.  Practice Book § 10–10 provides, in relevant part:  “In any action for legal or equitable relief, any defendant may file ․ cross claims against any codefendant provided that each ․ cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ․” (Emphasis added.)  “The transaction test is one of practicality ․” (Internal quotation marks omitted.)  South Windsor Cemetary Assn., Inc. v. Lindquist, 114 Conn.App. 540, 546, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009).   Relevant considerations in determining whether the transaction test has been met include whether the same issues of fact and law are presented by the complaint and the cross claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts.”   (Internal quotation marks omitted.)  Jackson v. Conland, 171 Conn. 161, 166, 368 A.2d 3 (1976).  “[T]he courts seem to be saying that where the legal claim of the complaint and the evidence to prove it is completely different from the claims of the [cross] claim and the evidence that will be used to establish it, there really is no judicial economy to he achieved [by allowing the cross claim to proceed].”   Grant v. Lettieri, Superior Court, judicial district of New Haven, Docket No. CV 08 4034372 (December 10, 2009, Corradino, J.);   see also Fitzpatrick v. Cornucopia Food Service, Inc., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 94 0543832 (December 11, 1995, Wagner, J.) (holding that a cross claim alleging that the cross-claim defendant failed to obtain adequate insurance covering the cross-claim plaintiff did not arise out of the same transaction as the underlying negligence claim);  Hunt v. Holte, Superior Court, judicial district of New London, Docket No. 525941 (November 30, 1994, Austin, J.) (13 Conn. L. Rptr. 126) (holding that the transaction test was not met because “the underlying complaint sound[ed] in tort while the cross claim sound[ed] in contract.  [And][t]he facts to be proved and the evidence to be taken in each cause of action are very different”).⁵

In the present case, the underlying claim is based on negligence and the cross claim is based on breach of contract.   Counts three, four, nine and ten allege that the cross-claim defendants failed to “provide liability insurance for [Criscuolo's] claims and to name [the cross-claim plaintiffs] as additional insureds on said policy.”   The contractual language promising to provide liability insurance naming the cross-claim plaintiffs as additional insured is in no way related to the plaintiff's underlying claim for negligence.   The vendor agreement may be a piece of evidence in the underlying action, but the failure to obtain liability insurance and name the cross-claim plaintiffs as additional insureds does not arise out of the plaintiff's fall at the fall festival, but rather out of a breach of the contract between the cross-claim plaintiffs and cross-claim defendants.

CONCLUSION

For the foregoing reasons, the court denies the cross-claim defendants' motion to strike counts one, two, seven and eight on the ground that the indemnity clause does not violate public policy.   The court grants the cross-claim defendants' motion to strike counts three, four, nine and ten on the ground that the cross claims for breach of contract do not arise out of the same transaction as the underlying negligence claim.

Woods, J.

FOOTNOTES

FN1. In this memorandum, East Haven Fail Festival and East Haven will be referred to as “the cross-claim plaintiffs.”.  FN1. In this memorandum, East Haven Fail Festival and East Haven will be referred to as “the cross-claim plaintiffs.”

FN2. In this memorandum, Susan Spadacenta and Susan Spadacenta doing business as Paul's Apizza will be referred to as “the cross-claim defendants.”.  FN2. In this memorandum, Susan Spadacenta and Susan Spadacenta doing business as Paul's Apizza will be referred to as “the cross-claim defendants.”

FN3. It should be noted that the amended complaint dated April 6, 2011 does not list Susan Spadacenta as an individual defendant, but rather lists Susan Spadacenta doing business as Paul's Apizza and M.P.C. Inc. doing business as Paul's Apizza.   The cross claim, however, asserts claims in counts one through six against Susan Spadacenta as an individual cross-claim defendant and Susan Spadacenta doing business as Paul's Apizza in counts seven through twelve.   As the court in Napolitano v. Shalvoy stated:  “[I]t appears well settled that the use of a fictitious or assumed business name does not create a separate legal entity ․ [and that] [t]he designation [doing business as] ․ ‘is merely descriptive of the person or corporation who does business under some other name.”   Napolitano v. Shalvoy, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 07 5007014 (March 11, 2008, Frankel, J.).   Counts one through six of the cross claim are identical to counts seven through twelve.   The law establishes that an individual doing business under a separate “business name does not create a separate legal entity.”   Therefore the resolution of counts one through six will be identical to the resolution of counts seven through twelve..  FN3. It should be noted that the amended complaint dated April 6, 2011 does not list Susan Spadacenta as an individual defendant, but rather lists Susan Spadacenta doing business as Paul's Apizza and M.P.C. Inc. doing business as Paul's Apizza.   The cross claim, however, asserts claims in counts one through six against Susan Spadacenta as an individual cross-claim defendant and Susan Spadacenta doing business as Paul's Apizza in counts seven through twelve.   As the court in Napolitano v. Shalvoy stated:  “[I]t appears well settled that the use of a fictitious or assumed business name does not create a separate legal entity ․ [and that] [t]he designation [doing business as] ․ ‘is merely descriptive of the person or corporation who does business under some other name.”   Napolitano v. Shalvoy, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 07 5007014 (March 11, 2008, Frankel, J.).   Counts one through six of the cross claim are identical to counts seven through twelve.   The law establishes that an individual doing business under a separate “business name does not create a separate legal entity.”   Therefore the resolution of counts one through six will be identical to the resolution of counts seven through twelve.

FN4. Counts five, six, eleven and twelve of the cross claim allege common-law indemnification.   The cross-claim defendants did not move to strike these counts..  FN4. Counts five, six, eleven and twelve of the cross claim allege common-law indemnification.   The cross-claim defendants did not move to strike these counts.

FN5. The court does note that the transaction test is a matter of discretion.   In Vitale v. Demar's Landscaping, the court held that “a claim for breach of contract to obtain necessary insurance has a sufficient connection to the underlying [negligence] action to withstand a motion to strike.”   Vitale v. Demar's Landscaping, Superior Court, judicial district of New Haven, Docket No. CV 06 500782 (November 6, 2007, Lopez, J.).   It appears that this case, however, stands alone.   In the decision, the court did not cite to any supporting authority and the case itself has never been cited..  FN5. The court does note that the transaction test is a matter of discretion.   In Vitale v. Demar's Landscaping, the court held that “a claim for breach of contract to obtain necessary insurance has a sufficient connection to the underlying [negligence] action to withstand a motion to strike.”   Vitale v. Demar's Landscaping, Superior Court, judicial district of New Haven, Docket No. CV 06 500782 (November 6, 2007, Lopez, J.).   It appears that this case, however, stands alone.   In the decision, the court did not cite to any supporting authority and the case itself has never been cited.

Woods, Glenn A., J.