Dawn Thompson–Taffe v. Advent Automation, Inc. (2013)

MEMORANDUM OF DECISION ON CROSS CLAIM PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

FACTS

The plaintiff, Dawn Thompson–Taffe, commenced this action by service of process on the defendants, Wincor Nixdorf, Inc. (Wincor), and Advent Automation, Inc. (Advent), on May 20 and May 23, 2011 respectively.   Her complaint against both defendants alleges the following facts.   On September 14, 2009, the plaintiff was working as the assistant branch manager at JP Morgan Chase Bank (the bank) at 153 College Street in New Haven, Connecticut, while the defendants were doing work near the ATM in the lobby of the bank.   At approximately 12 p.m., the plaintiff walked from behind the counter into the bank lobby, “when she was caused to trip and fall ․ upon a sheet of plywood that was lying flat against the ground, and which closely matched the color of the bank's floor.”   The plaintiff's fall was caused by the carelessness and negligence of the defendants in that:  (1) they allowed and created a dangerous condition by leaving the plywood in an area where they knew people were likely to walk;  (2) they failed to remedy the dangerous condition;  (3) they failed to provide any warning to the plaintiff;  and (4) they otherwise failed to exercise reasonable care in order to keep the bank lobby in a reasonably safe condition.   As a result of her fall, the plaintiff sustained various injuries.

On June 14, 2011, the plaintiff withdrew her claim against Advent, leaving Wincor as the sole defendant in the action.   On October 20, 2011, Wincor filed an apportionment complaint against Staffmark–LLC, Midwest.¹  The apportionment complaint alleges that Staffmark was under contract with Wincor to provide laborers and technicians to do “rigging” services, including the removal of old ATMs and the insertion of new ATMs at the bank at the time of the plaintiff's alleged accident, and that Staffmark's negligence was the direct and immediate cause of the plaintiff's injuries.   Wincor argues that Staffmark is liable for its proportionate share of damages owed the plaintiff pursuant to General Statutes § 52–102b.²  On January 11, 2012, the plaintiff filed an amended complaint alleging negligence against Wincor and Staffmark on the same four grounds asserted in the original complaint.

On March 3, 2012, Staffmark filed a cross claim for indemnification against Wincor alleging the following facts.   On December 17, 2007, Staffmark entered into a contract with Wincor to provide temporary staffing services.   In the contract, Wincor agreed to indemnify Staffmark from and against all damages arising out of any negligent act or omission on the part of Wincor.   Wincor breached the contract by not providing supervisory personnel at the bank on the date of the plaintiff's injury in violation of Section 3.1, and should therefore be held liable for all resulting damages.   Additionally, under Section 3.3 of the contract, Wincor agreed to be responsible for the work product of Staffmark employees “assigned to perform professional, scientific engineering, information services, technical, laboratory support or similar work.”   The installation of the ATM, which created the dangerous condition leading to the plaintiff's accident, falls within the scope of the “work product” for which Wincor agreed to be held responsible.   Staffmark seeks indemnification from Wincor for sums awarded against it and in favor of the plaintiff, attorneys fees and costs, and any other relief as the court deems appropriate.

On July 12, 2013, Staffmark, as cross claim plaintiff, filed a motion for summary judgment on its cross claim and a memorandum of law in support.   Staffmark submits the following evidence in support of its motion:  the affidavit of its assistant general counsel regarding the December 17, 2007 contract with Wincor for temporary staffing services;  the contract with addenda between Staffmark and Wincor;  a description of the type of work to be performed by Staffmark employees;  the responses of Wincor's division counsel to Staffmark's interrogatories;  and an affidavit from Staffmark's trial attorney regarding attorneys fees.   Wincor, as cross claim defendant, filed an objection to the motion for summary judgment on August 30, 2013, submitting the affidavits of its field engineer, George Dunn, and bridge line manager, Steven Lowery, and the job description for the position of ATM technician that was filled by Staffmark on the date of the alleged accident as evidence in support of its objection.   Staffmark filed a reply to Wincor's objection on September 3, 2013.   The court heard oral arguments on the motion on September 4, 2013.

DISCUSSION

“[A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action ․” Practice Book § 17–44.   “Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).  “ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Emphasis omitted;  internal quotation marks omitted.)  Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 296, 44 A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).  “As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ 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, 11, 938 A.2d 576 (2008).  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)  Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635 (2013).   Where both parties have submitted identical copies of the same document as evidence to be considered by the court in support of their respective positions on a party's motion for summary judgment, “both can be understood to have admitted by their references to it in their affidavits, briefs and arguments that the [document] before the court was in fact authentic.”  Bruno v. Whipple, 138 Conn.App. 496, 507, 54 A.3d 184 (2012).

In the present case, Staffmark moves for summary judgment on the cross claim against Wincor on the ground that, as a matter of law pursuant to the terms of their agreement, there is no genuine issue of material fact that Wincor is obligated to defend, indemnify, and hold harmless Staffmark.   In its memorandum of law in support of its motion, Staffmark posits two arguments.   First, Staffmark argues that the discovery responses of Wincor division counsel, Nanci Tucker, provide sufficient evidence to show that no supervisory personnel were present for the installation of the ATM at the time of the plaintiff's fall, and that Wincor is therefore liable to Staffmark for breach of their service contract.   Second, Staffmark offers the affidavit of its general counsel and the parties' December 17, 2007 agreement as proof that Staffmark is entitled to indemnification with respect to all technical or professional services performed by Staffmark employees.   Wincor disputes Staffmark's interpretation of the contract, arguing that supervisory personnel were on site at the time of the plaintiff's fall and that the placement of the plywood on which the plaintiff fell does not constitute “professional or technical services” for purposes of the contract's indemnification clause.   Wincor argues that the theories presented by Staffmark are therefore not appropriate for resolution on summary judgment as they each contain genuine issues of material fact.   Neither party raises any objection as to the admissibility of the evidence offered by its opponent, and with respect to the interpretation of the December 17, 2007 contract and the interrogatory responses of Wincor's division counsel, both rely upon identical copies of the documents in their respective briefs, thus admitting their authenticity.   See Bruno v. Whipple, supra, 138 Conn.App. 507 (because both parties were in full agreement as to the text of the subject contract, both were understood to have admitted before the court that it was authentic).

Because the determination of the motion for summary judgment turns on the interpretation of the contract between Staffmark and Wincor, the court applies the rules of contract construction to interpret the parties' agreement.  “In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction ․ We accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract ․ Where the language is unambiguous, we must give the contract effect according to its terms ․ Where the language is ambiguous, however, we must construe those ambiguities against the drafter.”  (Citations omitted.)  Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 734–35, 873 A.2d 898 (2005).

“A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ Accordingly, 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 ․ When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 13.  “A contract is unambiguous when its language is clear and conveys a definite and precise intent ․ The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity ․ Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.”  (Internal quotation marks omitted.)   Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. 734–35.  “[W]here there is definitive contract language ․ the determination of what the parties intended by their contractual commitments is a question of law.”  (Internal quotation marks omitted.)  Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000).

In the present case, there are two contractual clauses at issue.   First, Section 3.1 of the service contract between Staffmark and Wincor provides in relevant part:  “Customer will be responsible for the acts or omissions of Staffmark's employees:  (I) working at premises at which there are no responsible Customer supervisory personnel present ․” When asked in the interrogatories that Staffmark served upon Wincor whether it is Wincor's practice to prepare or obtain a written report from its employees of the circumstances surrounding injuries on the premises, division counsel Nanci Tucker responded:  “No Wincor employees were on site to perform the installation of the ATM during the incident as alleged.”   She later stated that Wincor employees George Dunn and Michael Bull were on site “for other purposes.”   Staffmark argues that these responses provide sufficient evidence to show that Wincor breached the contract and is liable to Staffmark under Section 12(b), which states:  “Customer will indemnify, defend, and hold harmless Staffmark ․ from and against all damages ․ imposed upon or incurred by Staffmark ․ to the extent they arise out of ․ any negligent act or omission or intentional misconduct on the part of Customer ․”

Wincor counters in its memorandum in opposition, however, that Tucker's responses fail to provide sufficient evidence to prove Staffmark's claim for indemnification for two reasons.   First, the question that Tucker answered in Staffmark's interrogatories is not the same question that is before the court, whether Wincor had an employee on site acting in a supervisory role.   Wincor argues that because Tucker was not responding to this specific question in discovery, the issue of whether a supervisor was present at the time of the plaintiff's fall remains a genuine issue of material fact in the case.   Second, Wincor argues that it nonetheless did have supervisory personnel on site, as Tucker also stated in the interrogatories, and offers the affidavit of George Dunn as further evidence that he was on the premises to supervise the ATM installation.   In its reply brief, Staffmark notes that it is unclear from the affidavit whether Dunn was present at the bank at the exact time the plaintiff fell.   The question of whether Dunn and Bull were supervisory personnel who were present at the work site involves a determination of evidentiary facts at issue in the case, which cannot be inferred from the affidavits offered by either party.   Moreover, questions as to what inferences and conclusions may be drawn from those facts within the meaning of the contract's indemnification clause are appropriate issues for a trier of fact and are therefore inappropriate for resolution by summary judgment.

In addition, Staffmark argues that it is owed indemnification under Section 3.3 of the contract, which states:  “Customer will control the details of the work and be responsible for the work product of Staffmark's employees assigned to perform professional, scientific, engineering, information services, technical, laboratory support, or similar work.”   In support of this argument, Staffmark submits the affidavit of its assistant general counsel, Patrick Treacy, which states that the “[r]igging of ATM machines constitutes professional, scientific, engineering, information services, technical, laboratory support, or similar work per the Wincor Nixdorf, Inc. job description ․” Wincor counters that the placement of plywood by Staffmark employees, which was the direct cause of the plaintiff's fall, should not be categorized as “work product” within the scope of Section 3.3, or, at the very least, raises a genuine issue of material fact as to what constitutes “work product” under the contract.   Wincor further notes that the next sentence of Section 3.3 pertains to the intellectual property rights of the customer, which indicates that this portion of the contract is concerned with copyright protections, and that the placement of plywood is not an item that would be subject to such protections.   Staffmark disputes this interpretation in its reply brief, arguing that the technical knowledge required to install ATM machines and the job title of the Staffmark worker responsible for the job, “ATM installation technician contractor,” clearly identify the work as “technical services” within Section 3.3 of the contract.   The Supreme Court of Connecticut has reasoned that “[i]f the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.”   (Internal quotation marks omitted.)  Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, supra, 273 Conn. 735.   Because both Staffmark and Wincor have put forth reasonable interpretations of the phrase “work product” within the context of contract, the question of whether the placement of plywood falls within the category of work described in Section 3.3 is one for the trier of fact.

Viewing the evidence in the light most favorable to Wincor, Staffmark has failed to prove an absence of genuine issue of material fact as to Wincor's breach of the service contract under either of the theories it raises, and thus has not met its burden for the motion for summary judgment.

CONCLUSION

For the foregoing reasons, the court will deny the cross claim plaintiff's motion for summary judgment.

HARTMERE, J.

FOOTNOTES

FN1. The apportionment complaint lists “Staffmark Investment, LLC, a/k/a Staffmark Productions, Ltd., a/k/a Staffmark LLC–Northeast, a/k/a Staffmark East, LLC, and/or a/k/a Staffmark–LLC, Midwest” as the apportionment defendants.   In its answer, Staffmark–LLC, Midwest is the only Staffmark entity to admit being under contract with Wincor.   Staffmark–LLC, Midwest brings the motion for summary judgment that is the subject of this memorandum, and will hereinafter be referred to as “Staffmark.”.  FN1. The apportionment complaint lists “Staffmark Investment, LLC, a/k/a Staffmark Productions, Ltd., a/k/a Staffmark LLC–Northeast, a/k/a Staffmark East, LLC, and/or a/k/a Staffmark–LLC, Midwest” as the apportionment defendants.   In its answer, Staffmark–LLC, Midwest is the only Staffmark entity to admit being under contract with Wincor.   Staffmark–LLC, Midwest brings the motion for summary judgment that is the subject of this memorandum, and will hereinafter be referred to as “Staffmark.”

FN2. General Statutes § 52–102b provides in relevant part:  “A defendant in any civil action ․ may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable ․ for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability ․”.  FN2. General Statutes § 52–102b provides in relevant part:  “A defendant in any civil action ․ may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable ․ for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability ․”

Hartmere, Michael, J.