Dexter Herrera v. Elizabeth Adams et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 160)

FACTS

On October 26, 2009, Carlos Herrera, the passenger, died as a result of an automobile accident when an allegedly intoxicated Julian Arias drove his vehicle over the centerline and directly into a residence located at 119 Old Norwich Road, Waterford.   Arias was allegedly drinking at Stash's Café and the Brown Derby Lounge prior to the accident.   On September 16, 2010, the plaintiff, Dexter Herrera, in both his capacity as administrator for the estate of Carlos Herrera and individually, filed his second amended complaint against the defendants, Elizabeth Adams, Cue Corporation, Graham Thompson and Shub, LLC. Adams is the permittee and Cue Corporation is the duly licensed backer of the Brown Derby Lounge.   Thompson is the permittee and Shub, LLC is the duly licensed backer of Stash's Café.   Bringing this action pursuant to General Statutes § 52–555, the wrongful death statute, the plaintiff's second amended complaint consists of four counts.   Count one alleges that Adams and Cue Corporation are liable pursuant to General Statutes § 30–102, the Dram Shop Act. Count two alleges reckless dispensing of alcohol by Adams and Cue Corporation.   Counts three and four mirror counts one and two, except they are directed at Graham and Stash's Café.   On October 13, 2010, Adams and Cue Corporation filed an apportionment complaint against Julian Arias.   The plaintiff filed a motion to strike the apportionment complaint on October 29, 2010 and Adams and Cue Corporation filed their objection on November 29, 2010.   The plaintiff filed a reply on December 8, 2010.   The court, Martin, J., granted the plaintiff's motion to strike the apportionment complaint on February 24, 2011.

Subsequently, Adams and Cue Corporation filed a motion for permission to implead Arias as a third-party defendant on April 12, 2011, which the court, Martin, J., granted on April 26, 2011.   On June 7, 2011, Adams and Cue Corporation filed their third-party complaint against Arias.   In response to Arias' request to revise, Adams and Cue Corporation filed their two-count revised third-party complaint on June 17, 2011.   Count one alleges that the negligence of Arias was the actual and/or proximate cause of the plaintiff's injuries and that if the plaintiff recovers damages against Adams and Cue Corporation, then they are entitled to a judgment against Arias for all such sums since the negligence of Arias was the sole cause of the plaintiff's injuries.   Count two alleges that:  “If the decedent suffered injuries in the manner alleged in the Complaint, which is denied, those injuries were caused by the recklessness of the third-party defendant, Julian Arias, in that his reckless and/or willful conduct was the proximate cause of the alleged accident ․” On August 19, 2011, Arias moved to strike the revised third-party complaint.   On September 12, 2011, Adams and Cue Corporation filed their opposition to the motion to strike and Arias filed his reply on September 19, 2011.

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).   This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”   (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).   “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).

Arias moves to strike the revised third-party complaint in its entirety because it purports to sound improperly in indemnification.   Arias argues that the first-party complaint filed against Adams and Cue Corporation charges them pursuant to the Dram Shop Act and with reckless service of alcohol;  and there are no allegations of negligence against Adams and Cue Corporation, nor could there be any such negligence allegations.   Arias argues that the third-party revised complaint must be striken because Connecticut law does not allow for indemnification for recklessness and the plain language of the Dram Shop statute prohibits indemnification.   Arias argues that indemnification based on the active/passive negligence theory requires that Adams and Cue Corporation establish that their negligence was secondary to the primary negligence of Arias, which is a legal impossibility for Adams and Cue Corporation because the first-party complaint does not allege that they were negligent.   Therefore, Arias argues that Adams and Cue Corporation are advancing a theory of active/passive recklessness, which is not recognized in Connecticut and Arias argues that it should not be recognized.

Adams and Cue Corporation counter that they have sufficiently pleaded the requisite elements for a claim of indemnification.   Adams and Cue Corporation acknowledge that “the statutory construct of Connecticut General Statute, § 31–102, the Dram Shop Act, does not provide for indemnification.   However, [Adams and Cue Corporation have] specifically pled that the recklessness of the third-party defendant [Arias] is the sole proximate cause of the plaintiff's injuries.”   Adams and Cue Corporation argue that the court must assume all facts pleaded to be true in favor of the pleading party and that they have properly alleged (1) that Arias was negligent and/or reckless;  (2) that his negligence and/or recklessness, rather than Adams and Cue Corporation, was the direct, immediate cause of the plaintiff's accident and injuries;  (3) that Arias was in control of the situation to the exclusion of Adams and Cue Corporation;  and (4) that Adams and Cue Corporation did not know of such negligence and/or recklessness, had no reason to anticipate it, and could reasonably rely on Arias not to be negligent and/or reckless.   Adams and Cue Corporation argue that Arias' argument regarding active/passive recklessness “is confusing and misplaced.”

Precedent from the Connecticut Supreme Court;  Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965);  “imposes 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 ․ To assert a claim for 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.”  (Citation omitted;  emphasis in original.)   Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001).  “[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.”  Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990).  “As the Supreme Court's statement of the rule indicates, the doctrine of indemnification applies to joint tortfeasors who are negligent ․ The language of the second element which a third-party plaintiff must prove makes it clear that it is its negligence which is measured against the negligence of the third-party defendant in determining if indemnification is available ․ And, while the court has been cited to and has found no Connecticut authority at the appellate level, every trial court decision has denied indemnification to parties ․ charged with intentional tortious conduct.”  (Citation omitted;  emphasis in original.)   Regan v. Computers Plus Center, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 03 0823990 (May 15, 2008, Shortall, J.) [45 Conn. L. Rptr. 461].

In the present case, the parties dispute which complaint, the plaintiff's second amended complaint or the third-party plaintiffs' revised complaint, is the relevant pleading to determine the legal sufficiency of the claim for indemnification by Adams and Cue Corporation.   Arias argues that lack of negligence allegations in the plaintiff's second amended complaint precludes an indemnification action by Adams and Cue Corporation.   The focus of Arias' argument is not that Adams and Cue Corporation have not properly pleaded the elements for common-law active/passive negligence, rather Adams and Cue Corporation cannot seek indemnification when the underlying action is brought pursuant to the Dram Shop Act and based on a theory of recklessness.   Whereas, Adams and Cue Corporation argue that their third-party plaintiffs' revised complaint sufficiently sets forth the allegations of Arias' negligence and/or recklessness and the court may not go beyond the four corners of that complaint when deciding a motion to strike.

Although the appellate case law does not explicitly limit common-law indemnification to negligence cases only;  see Shelby Ins. Co. v. Castellon, Superior Court, judicial district of New Haven, Docket No. CV 98 0416779 (May 26, 2000, Devlin, J.) (reasoning that the lack of an explicit limitation rendered summary judgment inappropriate but granted summary judgment on the “exclusive control” element);  the majority of trial court decisions find that there is no common-law indemnification for intentional tortious conduct.   See Martel v. Burkamp, Superior Court, judicial district of Hartford, Docket No. CVH 7684 (July 24, 2009, Gilligan, J.) [48 Conn. L. Rptr. 285].   Denying claims for indemnification where the only allegations against the third-party plaintiff in the underlying action are for intentional misconduct “serves to discourage such misconduct and is consistent with sound public policy.”  Id. Similarly, indemnification actions brought pursuant to General Statutes §§ 52–102b and 52–572h are permissible only when the underlying action is predicated on negligence.   See Herrera v. Adams, Superior Court, judicial district of New London, Docket No. CV 10 6004615 (February 24, 2011, Martin, J.) (granting the plaintiff's motion to strike the apportionment complaint because the underlying complaint was not based on negligence).

Here, Adams and Cue Corporation have not cited, nor has the court found, any appellate authority that would support a departure from the requirement that the underlying action be grounded, at least in part, in negligence.   Common-law indemnification is properly pleaded when the third-party plaintiff can allege that it was the third-party defendant's active negligence that was the direct, immediate cause of the plaintiff's injuries rather than the third-party plaintiff's passive negligence.   Even viewing the third-party revised complaint in the light most favorable to sustaining jurisdiction and accepting as true the allegations that it was Arias' negligence and/or recklessness that was the direct, immediate cause of the death of the plaintiff's decedent, the complaint is legally insufficient to state a cause of action for indemnification because the underlying action is grounded in recklessness.   Trial courts have not extended common-law indemnification to intentional tortious conduct and this court has not been provided with, nor found, any controlling or persuasive support for extending common-law indemnification to reckless tortious conduct.   Therefore, Arias' motion to strike must be granted.

CONCLUSION

For the foregoing reasons, Arias' motion to strike the third-party revised complaint is granted.

Cosgrove, J.

Cosgrove, Emmet L., J.