Catherine Strothers v. Mall, Inc. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 143)

This action arises from two slip-and-fall accidents that occurred while the plaintiff was walking into work at Bailey Agencies, Inc. (Bailey), which is located on a premises owned by the defendant Mall, Inc. (Mall).  On November 8, 2012, the plaintiff, Catherine Strothers, filed a two-count, second amended complaint (129) sounding in negligence against the defendant, Mall.¹ Bailey (the plaintiff's employer) filed an amended intervening complaint (112) against Mall on April 23, 2012 in order to recover workers' compensation benefits paid to Strothers.   On November 16, 2012 and December 4, 2012, Mall filed nearly identical counterclaims (131 and 134) against Bailey for breach of contract and indemnification.   Bailey then filed the present motion to strike (143) Mall's counterclaims and memorandum of law in support on January 22, 2013, and Mall filed nearly identical objections (154 and 157) on February 22, 2013 and March 4, 2013.   The matter was heard at short calendar on April 22, 2013.

BACKGROUND

In her second amended complaint, the plaintiff alleges that on December 9, 2009 and January 20, 2012, she was walking toward the entrance of her place of employment, Bailey, located at 84 Plaza Court, Groton, Connecticut.   On both occasions, the plaintiff slipped and fell on ice and slippery conditions, sustaining injuries and damages.   The defendant, Mall, owned the premises at 84 Plaza Court, and was responsible for maintenance, snow and ice removal.   On these dates, however, Mall was negligent and careless in failing to salt, inspect, rope off, or warn against this area of the pavement.

Bailey (the plaintiff's employer) intervened as a plaintiff against Mall, and Mall then filed counterclaims against Bailey on November 16, 2012 and December 4, 2012.   In those counterclaims, Mall alleges that a lease agreement was in full force in effect between Mall and Bailey.   Pursuant to that agreement, Bailey is required to “save and hold harmless Mall, Inc. from any suit or claim for injury arising out of the use and occupancy of the Premises,” and to “obtain a policy of insurance naming Mall, Inc. as an additional insured.”   Therefore, Mall alleges that Bailey breached the agreement by “not defending, indemnifying and holding Mall, Inc. harmless from the Plaintiff's claims in this suit.”   Bailey subsequently filed a motion to strike Mall's counterclaim, which is the subject of this memorandum.

LAW RE MOTION TO STRIKE

“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).  “[A] plaintiff can [move to strike] a ․ counterclaim” Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).   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.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “[I]t 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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, supra, 116–17.

APPLICABLE LAW

In its memorandum of law in support of the motion to strike, Bailey argues that Mall has misjoined a cause of action because the counterclaim does not arise out of the same transaction as the plaintiff's underlying negligence claim, as is required under Connecticut Practice Book § 10–10.   Specifically, the contractual language requiring Bailey to provide liability insurance constitutes a breach of contract claim, which is in no way related to the plaintiff's underlying negligence claim.   Additionally, Bailey argues that Mall “has not, and cannot, allege any contractual or common law indemnification claims against Bailey, Agencies, Inc.” Mall counters that it has properly asserted a counterclaim for contractual indemnification, as permitted by Practice Book § 10–10.

Practice Book § 10–10 provides in relevant part:  “In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ․ A defendant may also file a counterclaim or cross claim under this section against any other party to the action for the purpose of establishing that party's liability to the defendant for all or part of the plaintiff's claim against that defendant.”

ANALYSIS

The Superior Court has analyzed Practice Book § 10–10 under circumstances factually similar to the present matter.   In Davidi v. Schindler, Superior Court, judicial district of Stamford, Docket No. 98 0169160 (April 24, 2000, D'Andrea, J.) (27 Conn. L. Rptr. 93), cited by Mall, the plaintiff sued the defendants (Stamford and Schindler) for negligence Id., 93–94.   Stamford filed a cross claim against Schindler.  Id., 94.   Schindler filed a motion to strike Stamford's cross claim pursuant to Practice Book § 10–10, arguing that, inter alia, count two was a breach of contract claim that did not arise out of the initial negligence action.  Id. Stamford countered that count two was not a breach of contract claim, but rather a contractual indemnification claim, which is permissible under Practice Book § 10–10.  Id.

The court in Davidi stated:  “In construing the cross complaint in the light most favorable to sustaining its legal sufficiency, the court may construe count two as a contractual indemnification claim.   Although count two does not contain specific language from the indemnification clause of the contract, the cross complaint reads in relevant part, ‘[p]ursuant to the contract between the parties, Defendant Schindler was required to protect the City's interests ․ including a contractual obligation to indemnify the City ․ ‘ This language creates a claim for contractual indemnification in the second count.   A ‘transaction test’ analysis therefore is not necessary, as Practice Book § 10–10 expressly allows indemnification claims to be tried along with the underlying cause of action.”  Id.

Similarly, in the present case, Bailey argues in its motion to strike that Mall made a breach of contract claim.   Mall argues, however, that it made a contractual indemnification claim.   In its counterclaim, Mall both paraphrased paragraph 8 of the agreement between Bailey and itself (“Bailey Agencies is required to save and hold harmless Mall, Inc. from any suit or claim for injury arising out of the use and occupancy of the premises”) and also stated that Bailey breached the agreement by “not defending, indemnifying and holding Mall, Inc. harmless from the Plaintiff's claims in this suit.”   This language is even more specific than that contained in the Davidi cross claim, supra, which was sufficient to constitute an indemnification claim.   Based on this comparison, and in construing the counterclaim in the light most favorable to sustaining its legal sufficiency, this court construes Mall's counterclaim as one for contractual indemnification.   Therefore, Mall's counterclaim is permissible under Practice Book § 10–10.

The court also notes that Bailey stated in its motion to strike:  “The alleged contractual language promising to provide liability insurance naming the counterclaim plaintiff as an additional insured is no way related to the plaintiff's underlying claim for negligence.”  (Emphasis added.)   Because Bailey moved to strike the entire counterclaim, rather than this individual count, the court need not address the question of whether Mall's insurance policy claim constitutes an indemnification claim.  “Insofar as [a] motion to strike is directed [to] the entire complaint, it must ․ fail if any of the plaintiff's claims are legally sufficient.”  (Internal quotation marks omitted.)   Lewis v. Royal Bank of Scotland, PLC, Superior Court, judicial district of Hartford, Docket No. CV 10 6013983 (October 5, 2011, Pellegrino, J.T.R.);   see also Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 [3 Conn. L. Rptr. 135] (1991) (court denied motion to strike directed at entire complaint rather than at selected portions).   Thus, because one of Mall's claims constitutes contractual indemnification and is legally sufficient, Bailey's motion to strike the entire counterclaim must fail.

ORDER

For the foregoing reasons, Bailey's motion to strike Mall's counterclaim is denied.

Devine, J.

FOOTNOTES

FN1. The second amended complaint names Regan Enterprises, LLC as an additional defendant.   The action against Regan Enterprises is not at issue here..  FN1. The second amended complaint names Regan Enterprises, LLC as an additional defendant.   The action against Regan Enterprises is not at issue here.

Devine, James J., J.