George Mills v. LLC (2012)

RULING ON CROSS CLAIM PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 128)

By motion filed on October 27, 2011, the defendant and cross-claim plaintiff, Connecticut CVS Pharmacy, LLC (“CVS”), moved for summary judgment on the first count of its cross-claim, dated January 24, 2011 (# 109).   Defendant and cross-claim defendant, Forty–Seven Main Street, LLC (“FSMS”), filed an objection to the motion for summary judgment on November 15, 2011 (# 134).¹

The court heard argument on this motion on January 30, 2012.   The court has considered CVS's motion and memorandum of law in support of its motion for summary judgment (# # 128, 129) and its supporting exhibits (# # 129, 130, 131).   The court has also considered FSMS's memorandum of law in opposition to the motion for summary judgment (# 134) and its supporting exhibits.   The motion is denied.

I

FACTUAL HISTORY

On November 2, 2010, the plaintiff, George Mills, filed a two-count premises liability complaint against FSMS and CVS, arising out of an incident that allegedly occurred on February 11, 2010, at approximately 12:38 p.m., on the “driveway, walkway, and paved area,” in front of 47–49 Main Street in Winsted, Connecticut.   The plaintiff alleges that he slipped and fell at that time and location.   Specifically, the plaintiff alleges that he was “walking up the paved walkway in front of [the] CVS pharmacy, the driveway was covered with ice, and as he was walking on said paved walkway he slipped and fell on the ice.”   The plaintiff alleges that he was injured when he fell, and he claims that both FSMS and CVS caused his injuries through their negligence.   The plaintiff alleges that FSMS, CVS or both “owned and/or leased and/or controlled and/or maintained” the commercial property where he fell.

On January 24, 2011, CVS filed a cross-claim against FSMS, alleging that CVS leased the property at 47 Main Street in Winsted from FSMS. In the first count of the cross-complaint, CVS alleges that, pursuant to the lease agreement, FSMS was responsible for the maintenance of the common areas, including the parking lot and sidewalks, and the lease agreement requires FSMS to defend and indemnify CVS against claims arising from FSMS's maintenance operations.   In the second count of the cross complaint, CVS alleges common-law indemnification against FSMS, claiming that FSMS was in control of the premises and the sidewalks to the exclusion of CVS, and that CVS had no reason to know of FSMS's negligence.

II

THE POSITIONS OF THE PARTIESAThe Cross–Claim Plaintiff's Position

At the date and time of the accident, CVS was a tenant of FSMS. The lease agreement in effect at that time was first executed on December 6, 2000, and it was amended on January 9, 2001, February 9, 2001, and August 9, 2001.   The lease agreement specifically makes the landlord, FSMS, responsible for maintenance, prompt removal of snow and ice, and sanding of the common areas, including the parking lots and sidewalks.   The lease agreement also provides that FSMS must defend, indemnify and hold CVS harmless from costs, expenses, claims or demands that arise out of FSMS's failure to perform its duties, or comply with its obligations, arising out of the lease agreement.   The lease agreement also obligates FSMS to maintain general liability insurance, naming CVS as an additional insured.

CVS notes that the plaintiff, in his deposition, testified that the incident occurred on the walkway outside the CVS store.   The plaintiff testified that he exited from the passenger side of his vehicle in the parking lot, stepped on the paved walkway and then fell on the walkway.   The evidence is undisputed that the plaintiff never entered the CVS store on the date of the incident.

CVS introduced evidence that, pursuant to the lease agreement, it tendered its defense and indemnification to the landlord, FSMS, on multiple occasions.   To date, FSMS has declined to accept the tender.   CVS argues that the duty to defend is greater than the duty to indemnify and, at a minimum, FSMS should have agreed to defend CVS.

CVS now seeks summary judgment in its favor on its cross-claim.   It also seeks an order that FSMS assume the defense in this case, reimbursement of its attorneys fees to date and any fees it will incur in the future, and an order that FSMS indemnify CVS.

B

The Cross–Claim Defendant's Position

FSMS, the cross-claim defendant, opposes the motion for summary judgment, asserting that there are multiple reasons why the motion should not be granted.   FSMS argues that there is a genuine issue of material fact with regard to whether CVS “had control or possession” of the walkway where the plaintiff fell.   FSMS also asserts that certain provisions of the lease agreement impose a duty on CVS to notify FSMS of hazardous conditions and, in an emergency, to make necessary “repairs.”   FSMS contends that CVS's “failure to act” in this case “could have contributed to the proximate cause of the accident.”

FSMS claims that summary judgment is inappropriate because CVS has not addressed issues relative to inspection, or remediation of snow and ice, in the area where the plaintiff was injured.   FSMS argues that the plaintiff's alleged injuries may have been caused by the negligence or tortious act or omissions of the tenant, CVS, and under such circumstances the lease agreement relieves FSMS of the duty to defend or indemnify.   Finally, FSMS argues that there is a genuine issue of material fact as to “whether CVS had control and possession of the alleged fall location.   After the fall, an employee of CVS spread salt on the sidewalk.”   Cross-claim Def.'s Mem. 6.

III

DISCUSSIONAStandard of Review

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ In order for a motion for summary judgment to be granted properly, the moving party must demonstrate 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 ․ [A] summary disposition [must] ․ be on evidence which a jury would not be at liberty to disbelieve and ․ where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the [summary judgment].”  (Citation omitted;  internal quotation marks omitted.)  Farrell v. Twenty–First Century Ins. Co., 301 Conn. 657, 661–62, 21 A.3d 816 (2011).

“[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 ․ 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 [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 596, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).   “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).  “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.”  (Internal quotation marks omitted.)   Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998).

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

B

Analysis1Possession and Control of the Premises

FSMS argues, in part, that there is a genuine issue of material fact as to whether CVS was in possession and control of the area where the plaintiff was injured.   FSMS asserts that after the incident occurred, a CVS employee used salt to remediate the area where the plaintiff claims that he fell.   FSMS claims that this alleged conduct creates a genuine issue of material fact as to whether CVS had possession and control of the location at issue.   The court recognizes that “the question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question.”  State v. Tippetts–Abbett McCarthy–Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987);  see Genera v. ECF Real Estate, Superior Court, judicial district of New Haven, Docket No. CV 07 5015384 (September 3, 2009, Keegan, J.) (summary judgment denied where evidence was unclear as to whether CVS had possession and control over area where ice and/or snow allegedly caused plaintiff's injuries).  “Where the evidence is such that the minds of fair and reasonable persons could reach ․ different conclusions on the question [of control], then the issue should properly go to the jury for their determination.”  Darling v. Burrone Bros., Inc., 162 Conn. 187, 192, 292 A.2d 912 (1972).

At oral argument, CVS indicated that it would oppose evidence of post-accident remediation as inadmissible.   It is true that, normally, post-accident remediation efforts cannot be admitted to establish negligence.   However, our Supreme Court has made clear that evidence that a party performed subsequent remedial measures by removing snow from a sidewalk after a plaintiff's fall may be admissible for the purpose of showing control over the premises at issue.   Smith v. Greenwich, 278 Conn. 428, 444–49, 899 A.2d 563 (2006).

FSMS relies on a police report to support its claim that a CVS employee spread salt in the area where the incident occurred.   The report suggests that the responding officer was present when a CVS employee took remedial action.

2

Business Invitee

CVS argues that there is no genuine issue of material fact regarding FSMS's contractual obligation to defend and indemnify CVS with regard to plaintiff's claims.   In response, FSMS contends that CVS had a duty to protect its invitees from known, foreseeable dangers.  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).

The record before the court indicates that the plaintiff was injured outside of CVS and never entered CVS before he was injured.   However, the record is not clear as to whether the plaintiff left his car for the purpose of doing business in CVS, nor is it clear where he fell in relation to the entrance to CVS. The police report indicates that the “victim fell on the sidewalk on the west side of CVS.” However, unless the report includes the officer's personal observations, or an admission by a party opponent, it may be excluded as inadmissible hearsay.   See Annecharico v. Patterson, 44 Conn.App. 271, 275–76, 688 A.2d 1341 (1997).   There is no evidence that the police officer was present when the plaintiff fell, nor does the report indicate the source of the officer's understanding as to where the plaintiff fell.   Therefore, the police report does not constitute admissible evidence on the latter issue.   A party opposing a motion for summary judgment must offer competing evidence that would be admissible at trial.  Home Ins. Co. v. Aetna Life & Casualty Co., supra, 235 Conn. 202–03.   The police report upon which FSMS now relies does not constitute admissible evidence regarding the location where the plaintiff allegedly fell.

“The possessor of premises who has invited persons to those premises for a business purpose cannot escape liability for a claimed breach of its duty to exercise reasonable care to keep the premises in a safe condition by hiring another to maintain the premises in a safe condition.”  Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 148, 727 A.2d 219 (1999), cert. dismissed, 254 Conn. 786, 759 A.2d 502 (2000) (grocery store owed duty of care to keep leased premises in a reasonably safe condition);  see Inzerra v. 327 Main Avenue Associates, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5007519 (May 21, 2010, Tierney, J.T.R.) (49 Conn. L. Rptr. 881) (despite lease condition requiring landlord to maintain parking lot, tenant CVS had a duty to its customers to keep all of the premises it uses for business purposes in a safe condition);  Seuferling v. Plaza Enterprises, LLC, Superior Court, judicial district of New London, Docket No. CV 08 5008040 (February 3, 2010, Cosgrove, J.) (49 Conn. L. Rptr. 286) (summary judgment denied where defendant had a non-delegable duty to plaintiff, as a business invitee, regardless of an agreement with a landlord regarding maintenance of a parking area).   Thus, the question of whether CVS owed a duty to the plaintiff as a business invitee, whether it breached any such duty, and/or whether any such breach caused the plaintiff's alleged injuries are questions to be resolved by the trier of fact.

3

The Lease Agreement

CVS's motion for summary judgment raises issues that are addressed by the contract between CVS and FSMS, i.e., their lease agreement, which must be interpreted pursuant to well-understood principles of law.   The parties disagree as to the meaning and interpretation that should be given to four specific paragraphs in the lease agreement:  ¶¶ 9(d), 33(a), 33(e) and 47.

In order to address the claims of both parties, it is necessary, first, to review the applicable rules of contract interpretation.  “Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact ․ [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law ․ In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together ․ The contract must be construed to give effect to the intent of the contracting parties ․ This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained ․ [I]ntent ․ is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ [Where] ․ there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.”  (Citations omitted;  internal quotation marks omitted.)  Schwartz v. Family Dental Group, P.C., 106 Conn.App. 765, 771, 943 A.2d 1122, cert. denied, 288 Conn. 911, 954 A.2d 184 (2008).

The question of whether a contract includes an ambiguity requiring the court to look beyond the four corners of the contract to resolve that ambiguity is also governed by well-established principles.  “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․ [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation ․ militates against interpreting a contract in a way that renders a provision superfluous ․ If a contract is unambiguous within its four corners, intent of the parties is a question of law ․ When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” (Internal quotation marks omitted.)  McCarthy v. Chromium Process Co., 127 Conn.App. 324, 330, 13 A.3d 715 (2011).

In the present case, the analysis of the issues must begin with the specific terms of the lease agreement.   In support of its motion, CVS relies, first, on paragraph 33(a) of the lease agreement which provides in relevant part:  “Landlord agrees that it will properly maintain and operate the premises and shall keep same in good order and condition and properly lighted and cleaned.   The aforesaid obligations of Landlord shall consist of ․ the maintenance and repair of all curbing and directional markers, the prompt removal of snow and ice, sanding of parking areas, sidewalks and walkways ․”

Second, CVS relies on paragraph 47 of the lease agreement which provides in relevant part:  “Except to the extent that such liability is caused by the negligence or tortious act or omission of tenant, its agents, contractors or employees, ․ and regardless of any insurance requirement, landlord shall defend, indemnify and hold tenant harmless from all costs, expenses, claims or demands of whatever nature arising from the following:  (i) any willful, negligent or tortious act or omission on the part of the landlord, its agents, contractors, or employees;  or (ii) any failure on the part of landlord to perform or comply with any of the covenants, agreements, terms, provisions, conditions or limitations contained in this lease on its part to be performed or complied with.   In case any action or proceeding is brought against tenant by reason of any such claim, landlord, upon written notice from tenant, shall, at landlord's expense, resist or defend such action or proceeding.”

In response to CVS's arguments regarding paragraph 33(a), FSMS refers the court to two other sections of the lease agreement.   First, FSMS advances paragraph 33(e) which provides in relevant part that “[i]f landlord fails to perform any of its obligations under this article, tenant shall have the right, upon thirty (30) days' written notice to landlord, or immediately in the case of an emergency, in tenant's reasonable opinion, to perform landlord's obligations under this article.”   Second, FSMS relies upon section nine of the lease agreement, entitled, “repairs and maintenance,” contending that there is a genuine issue of material fact as to whether CVS failed to act to remediate an emergency situation and whether it may have proximately caused the plaintiff's injuries.   FSMS claims that, under the lease agreement, CVS accepted responsibility for notifying FSMS of the icy conditions and, in an emergency, to address those conditions itself.

Paragraph 9(a) of section nine imposes upon FSMS the obligation to make “all necessary repairs, maintenance, or replacements to, the exterior ․ and structural portions of the premises, including, without limitation, the roof and roof supports, flashings, footings foundations, structural supports, columns, exterior walls, bearing walls, retaining walls, floor slab, and chimney and loading docks ․ and ․ all plumbing, pipes, tubes and all other conduits and utility lines leading to or from the meter serving the premises ․ and any fire sprinkler system ․” Paragraph 9(d) of that section provides that “[i]f the landlord fails to make any of the repairs required to be made by landlord under this lease within thirty (30) days after receipt of written notice from tenant of the necessity therefore, tenant, in addition to any other rights it may have hereunder, shall have the right to make said repairs on behalf of landlord and to charge landlord for the reasonable cost thereof.   If, in an emergency, in tenant's reasonable opinion, any such repairs are immediately necessary for the proper use and enjoyment of the premises or to avoid damage to the premises, no prior thirty (30) days' notice shall be required, but tenant shall give landlord whatever notice is reasonable in the circumstances and may make said repairs on behalf of the landlord and charge landlord for the reasonable cost thereof.”

FSMS's interpretation of the contract is buttressed by the application of the principle of ejusdem generis;  see 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 296, 685 A.2d 305 (1996);  and its reliance on section nine of the lease agreement, and in particular subparagraph 9(d), is misplaced.   Paragraph 33(a) has specific application to the incident at issue.   Paragraph 33(a) is clear, specific and precise on the issue of imposing upon FSMS the obligation to effect “the prompt removal of snow and ice” and to sand “parking areas, sidewalks, and walkways ․” Section nine, on the other hand, addresses “repairs and maintenance” to a lengthy list of building components, but makes no reference to the removal of ice or snow or to the “parking areas, sidewalks, and walkways” that are specifically addressed in paragraph 33(a).

In essence, FSMS is asserting that this court can find a genuine issue of material fact by ignoring specific terms of the lease agreement, and focusing, instead, on more general terms that, upon a careful reading, have no application to the facts of this case.   To the extent that FSMS seeks to find a genuine issue of material fact by suggesting that a broad reading of paragraph 33(e) ² creates such an issue, FSMS is erroneously concluding that general language can control over specific language.   Such a position is in conflict with a basic principle of contract law:  specific provisions of a contract will control over general provisions.  Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 273, 439 A.2d 314 (1981);  see 2 Restatement (Second), Contracts § 203(c), p. 92–93 (1981) (“specific terms and exact terms are given greater weight than general language”).

The fact that paragraph 9(a) addresses repairs, maintenance and replacements to a long list of building components “including, without limitation,” does not mean that the long list of building components in that paragraph can be interpreted to include parking areas, sidewalks and walkways, all of which are completely external to the building and the components described in section nine.  “The principle of ejusdem generis applies when (1) the [clause] contains an enumeration by specific words;  (2) the members of the enumeration suggest a specific class;  (3) the class is not exhausted by the enumeration;  (4) a general reference [supplements] the enumeration ․ and (5) there is [no] clearly manifested intent that the general term be given a broader meaning than the doctrine requires ․ Thus, [t]he doctrine of ejusdem generis calls for more than ․ an abstract exercise in semantics and formal logic.   It rests on particular insights about everyday language usage.   When people list a number of particulars and add a general reference like ‘and so forth’ they mean to include by use of the general reference not everything else but only others of like kind.   The problem is to determine what unmentioned particulars are sufficiently like those mentioned to be made subject to the [clause's] provisions by force of general reference.”  (Citation omitted;  internal quotation marks omitted.)   24 Leggett Street Ltd Partnership v. Beacon Industries, Inc., supra, 239 Conn. 296.   It is clear that the application of the doctrine of ejusdem generis precludes an interpretation of section nine of the lease agreement that would permit the conclusion that it has any application to the maintenance or repair of parking areas, sidewalks and walkways.

Despite the foregoing, it appears to this court that the provisions of paragraph 47 operate to postpone a determination of whether FSMS has a duty to indemnify and/or defend CVS until after the trier of fact resolves the claims in the complaint.   It will be the trier of fact that will determine whether FSMS, CVS or both are liable to the plaintiff.   Until that determination is made, it is not possible to determine whether paragraph 47 of the lease agreement relieves FSMS of the duty to indemnify and/or defend CVS.

This court is aware that our superior courts have resolved, in various ways, the question of whether a landlord owes a duty to defend pursuant to a lease agreement.   In Korbusieski v. CHK Waterbury Associates, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001916 (August 29, 2008, Roche, J.), the court interpreted a lease agreement that imposed a duty upon a landlord to defend and indemnify its tenant, CVS, for the landlord's failure to carry out its lease obligations.   The court denied summary judgment with regard to the question of whether the landlord owed CVS a duty to indemnify it, but granted summary judgment on the question of whether the landlord owed a duty to defend CVS, finding that the duty to defend is broader than the duty to indemnify.  Id.

In Yuniskis v. CVS Pharmacy, Inc., Superior Court, judicial district of New Britain, Docket No. CV 04 5000074 (March 8, 2006, Domnarski, J.), the court, analyzing an issue similar to the one presented in the instant case as well as in Korbusieski, also denied summary judgment on the issue of indemnification.³  The Yuniskis court concluded that the duty to defend is broader than the duty to indemnify, and granted summary judgment in favor of the cross-claim defendant, CVS, on its claim that CVS's landlord was obligated to provide it with a defense.  Yuniskis v. CVS Phamacy, Inc., supra.   In reaching its conclusion, the Yuniskis court relied on our Supreme Court's decision in DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 846 A.2d 849 (2004).  Yuniskis v. CVS Phamacy, Inc., supra.

Riendeau v. Sandolo, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 07 5003878 (June 2, 2008, Tierney, J.) also addressed the issue presented in Yuniskis, and before this court, i.e., whether the duty to defend is broader than the duty to indemnify.   In Riendeau, a cross-claim plaintiff tenant, CVS, sought summary judgment against a cross-claim defendant landlord, relying on the landlord's lease agreement obligation to defend and indemnify CVS if an injury occurred due to the landlord's failure to meet its maintenance obligations.   The court analyzed this issue in light of DaCruz v. State Farm Fire & Casualty Co., supra, 268 Conn. 675.  Riendeau v. Sandolo, supra.

The Riendeau court rejected CVS's argument based on its finding that, as in the present case, the plaintiff's complaint alleged that both the landlord and the tenant, i.e., CVS, were independently negligent.  Id. Similar to the present case, the lease at issue in Riendeau did not give the right of indemnification to the tenant if the tenant was negligent.  Id. The Riendeau court found that “the current case law on indemnification is limited to insurance policies not landlord/tenant disputes,” and thus, declined to apply DaCruz in the landlord/tenant context.  Id. In the present case, as in Riendeau, CVS did not identify any Appellate Court or Supreme Court decision in which the terms and conditions of a lease between a landlord/tenant were used in order to determine the applicable duty to defend provisions using the DaCruz rule.

The Riendeau court concluded that it was “not convinced that the DaCruz rule, that the duty to defend is considerably broader than the duty to indemnify, applies to every type of indemnity agreement and the issues have to be resolved only by examining the complaint.   CVS only cites indemnity cases having to do with insurance policy disputes ․ In personal injury premises cases, the insurance company is usually not named as a party defendant and a direct claim of liability for active negligence is not sought by the injured plaintiff as against the insurance company.   In a landlord/tenant defective premises case it is common that a plaintiff brings a direct claim of active negligence against the landlord, the tenant and any other persons or entities that may have control of any portion of the claimed defective premises.   Therefore if CVS's legal position is correct, one active defendant tortfeasor in a landlord/tenant defective premises personal injury claim would have a claim of indemnity to defend as against another active defendant tortfeasor.   DaCruz does not cover these circumstances.   So too DaCruz is not applicable in a defective premises case where there is a dispute as to the location of the defect based on the allegations of the complaint.   In addition, the lease indicates that CVS has an obligation to indemnify [the landlord] for CVS's negligence.⁴  This lease term conflicts with the CVS's claim of indemnification of the duty to defend under DaCruz.”  (Citation omitted.)   Riendeau v. Sandolo, supra, Superior Court, Docket No. CV 07 5003878.   The Riendeau court denied CVS's motion for summary judgment.  Id.

This court concludes that the reasoning in Riendeau is equally applicable to the present case.   In the landlord/tenant lease agreement context, the duty to defend is not necessarily broader than the duty to indemnify.   There are disputed facts with regard to the issues of possession, control and the invitee status of the plaintiff that preclude summary judgment on the issues of both indemnification and the duty to defend.   The appropriate resolution of CVS's claim that FSMS owes it a duty to defend and indemnify can, and should, be resolved at trial.

IV

CONCLUSION

For all of the reasons stated, this court denies CVS's motion for summary judgment.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. In its submission, FSMS represented that its objection to the motion for summary judgment was supported by, inter alia, the applicable lease and a police report.   However, FSMS did not file the latter documents.   FSMS eventually filed those documents on April 2, 2012 (# 137)..  FN1. In its submission, FSMS represented that its objection to the motion for summary judgment was supported by, inter alia, the applicable lease and a police report.   However, FSMS did not file the latter documents.   FSMS eventually filed those documents on April 2, 2012 (# 137).

FN2. Moreover, paragraph 33(e), by its express terms, merely confers a right, but not an obligation, upon CVS to carry out FSMS's obligations in the event that FSMS fails to do so.   Such a right exists, pursuant to paragraph 33(e), regardless of whether the necessary repairs are emergency repairs or routine repairs..  FN2. Moreover, paragraph 33(e), by its express terms, merely confers a right, but not an obligation, upon CVS to carry out FSMS's obligations in the event that FSMS fails to do so.   Such a right exists, pursuant to paragraph 33(e), regardless of whether the necessary repairs are emergency repairs or routine repairs.

FN3. It is of interest that the operative paragraph of the lease agreement in both Korbusieski and Yuniskis was, as it is in this case, paragraph 47..  FN3. It is of interest that the operative paragraph of the lease agreement in both Korbusieski and Yuniskis was, as it is in this case, paragraph 47.

FN4. A similar provision exists in this case, as set forth in paragraph 46 of the lease agreement..  FN4. A similar provision exists in this case, as set forth in paragraph 46 of the lease agreement.

Danaher, John A., J.