Peerless Insurance Co. v. Alarm Security Protection Co. et al. (2012)

MEMORANDUM OF DECISION RE THIRD–PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 156)

FACTS

On September 9, 2009, the plaintiff, Peerless Insurance Co., filed a two-count revised complaint against the defendants, Alarm Security Protection Co. (ASP) and U.S.A. Central Station Alarm Corp. (USA Alarm), sounding in negligence and alleging the following facts.   The plaintiff provided property insurance to Union Plaza Associates, LLP (Union Plaza).   Union Plaza owned a commercial building in New London, Connecticut, where the law firm of Suisman, Shapiro, Wool, Brennan, Gray & Greenburg, P.C. (Suisman) rented the second and third floors pursuant to a lease.   Prior to January 27, 2007, Suisman had contracted with ASP to install an alarm monitoring system in their offices.   The system included a temperature monitoring component designed to activate the alarm in the event of a heat loss in the building.   Suisman also contracted with USA Alarm to monitor the alarm system and notify the appropriate representatives in the event of an alarm signal.

On January 27, 2007, a water pipe on the fourth floor of the premises broke, causing a water leak.   The alarm system activated and signaled ASP and/or USA Alarm, but neither defendant notified anyone of the alarm.   This allowed water to continue to leak throughout the premises until the next day.   As a result of the burst pipe and subsequent water damage, the plaintiff was obligated to reimburse Union Plaza for its losses.   The plaintiff is subrogated to the rights of its insured and seeks damages from the defendants for negligently failing to install an alarm that would ensure prompt and adequate notification of emergency services.   The plaintiff also seeks damages for failing to notify anyone of the alarm within a proper and reasonable length of time to prevent further damage to the premises.

On October 8, 2009, the defendants filed a motion to implead Suisman and to serve a third-party complaint against it, which was granted on October 19, 2009.   In the third-party complaint, the defendants allege that Suisman agreed to indemnify them for all claims alleged to be caused by their negligence in their performance under the contracts.¹

On October 25, 2011, Suisman filed a motion for summary judgment with respect to all of the plaintiff's claims against the defendants on the ground that the defendants owed no duty to the plaintiff.   In support of its motion, Suisman submitted as evidence relevant portions of the alarm contracts.   On October 28, 2011, the defendants filed a motion to join in Suisman's motion and a memorandum in support of Suisman's motion.   On December 1, 2011, the plaintiff filed an objection and memorandum in opposition to Suisman's motion.   Suisman filed a reply on February 2, 2012, and the plaintiff filed a supplemental memorandum on February 14, 2012.   This matter was heard at short calendar on February 6, 2012.

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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

Suisman argues that the alarm contracts at issue expressly state that there are no third-party beneficiaries to the contracts.   Suisman therefore argues that there are no genuine issues of material fact regarding the defendants' lack of duty to the plaintiff and/or Union Plaza, its insured.   The plaintiff counters that this court has already addressed Suisman's argument in a previous motion for summary judgment filed by the defendants.   The plaintiff argues that it is not claiming to be a third-party beneficiary, but instead alleges that it is a third party property owner damaged by the defendants' breach of duty in tort.²

On October 1, 2010, the defendants filed a motion for summary judgment in this case.   One of the grounds asserted in the motion was that the defendants owed the plaintiff no duty of care.   On April 7, 2011, this court denied the motion and, in doing so, discussed the issue currently before the court, namely, whether the defendants owed a duty to the plaintiff.   This court stated that “[t]he evidence reveals there is a genuine issue of material fact with respect to both the cause and foreseeability of the loss.”   Additionally, this court held that “neither the plaintiff nor the defendants have been able to cite any Connecticut authority concerning whether an alarm company owes a duty of care to third parties,” and “[a]bsent any controlling precedent ․ this court must conclude that the defendants have not met their burden of establishing they are entitled to a judgment as a matter of law.”

In the present case, no new evidence or controlling authority has been brought to the court's attention that would change its prior determination.   Suisman's motion and supporting memoranda focuses on the contract provisions stating that there were no third-party beneficiaries to the alarm contracts.   The plaintiff's complaint, however, states a cause of action in negligence and is not a third-party beneficiary contract claim.³  In order to recover in a tort case, the plaintiff must show that the defendant has breached a legal duty owed to him.”  Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 44, 492 A.2d 219 (1985).  “A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.”  Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982).  “The issue of whether the defendant owes the plaintiff a duty of care under negligence law arising from contractual obligations is a separate question from whether the plaintiff is a third-party beneficiary of that contract.”   Pelletier v. Sordoni/Skanska Construction Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 95 0155184 (December 16, 2004, Alander, J.) (38 Conn. L. Rptr. 404), rev'd on other grounds, 286 Conn. 563, 945 A.2d 388 (2008);  see also Gazo v. Stamford, 255 Conn. 245, 251, 765 A.2d 505 (2001).

Suisman's argument that the contracts prohibited third-party beneficiary actions does not definitively resolve the issue of whether the defendants owed the plaintiff a duty under a negligence theory.   Further, this court's previous determination that there are genuine issues of material fact relating to the defendants' alleged duty to the plaintiff still holds true.   Accordingly, Suisman's motion for summary judgment is denied.

CONCLUSION

For the foregoing reasons, the third-party defendant's motion for summary judgment is hereby denied.

Martin, J.

FOOTNOTES

FN1. The defendants filed a motion for summary judgment with respect to their claim against Suisman on November 4, 2011..  FN1. The defendants filed a motion for summary judgment with respect to their claim against Suisman on November 4, 2011.

FN2. The plaintiff also argues that Suisman has no standing to file this motion for summary judgment.  Practice Book § 10–11(a), however, states that a third-party defendant “shall have available to him or her all remedies available to an original defendant” and “may also assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff's claim ․” Thus, Suisman's motion is proper..  FN2. The plaintiff also argues that Suisman has no standing to file this motion for summary judgment.  Practice Book § 10–11(a), however, states that a third-party defendant “shall have available to him or her all remedies available to an original defendant” and “may also assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff's claim ․” Thus, Suisman's motion is proper.

FN3. For this reason, Suisman's argument that this court should adopt the reasoning of Gwozdz v. BCG Development, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5006994 (November 19, 2010, Cosgrove, J.) (50 Conn. L. Rptr. 835) is unpersuasive.   Gwozdz discusses third-party beneficiary status in the context of a breach of contract claim, not a negligence claim.  Id., 838.   Gwozdz does not stand for the proposition that a plaintiff must be a third-party beneficiary in order to satisfy the duty element in a negligence action such as this one..  FN3. For this reason, Suisman's argument that this court should adopt the reasoning of Gwozdz v. BCG Development, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5006994 (November 19, 2010, Cosgrove, J.) (50 Conn. L. Rptr. 835) is unpersuasive.   Gwozdz discusses third-party beneficiary status in the context of a breach of contract claim, not a negligence claim.  Id., 838.   Gwozdz does not stand for the proposition that a plaintiff must be a third-party beneficiary in order to satisfy the duty element in a negligence action such as this one.

Martin, Robert A., J.