Jeffrey Ford, et al. v. St. Francis Hospital of Hartford et al. (2014)

RULING RE MOTION TO STRIKE INTERVENING PLAINTIFF'S AMENDED CROSS CLAIM (NO. 154), AND OBJECTION (NO. 155)

I

Procedural History

Defendant, St. Francis Hospital (St.Francis), has moved the court to strike the first and second counts of Terracon Consultant, Inc.'s (Terracon) September 24, 2013, amended cross claim (no. 152).   These counts seek to allege contractual and common-law indemnity.   St. Francis contends that the counts should be stricken because Jeffrey Ford, the primary plaintiff, has not made a direct claim against Terracon, and therefore has failed to state a claim upon which relief can be granted.   Terracon objects to the motion citing a duty to indemnify resulting from claims being made by St. Francis as against Terracon in the second amended counterclaim (no. 149).   The matter was heard at short calendar on January 6, 2013.

II

Discussion

“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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulker v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

Courts in Connecticut have ruled that in actions involving contractual indemnity “[a] party may bring an indemnification claim based on the terms of an indemnity agreement ․ Allegations of contractual indemnification must be supported by the terms of the contract itself ․ Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification.”  (Citations omitted).   Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven, Docket No. CV–01–0276049–S (September 4, 2004, Wiese, J.).

The elements of common law indemnity have been stated as follows:  “(1) that the other tortfeasor was negligent;  (2) that his negligence, rather than the plaintiffs, was the direct, immediate cause of the accident and injuries;  (3) that he was in control of the situation to the exclusion of the plaintiff and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent.”  Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988).

Consistent with these rules the court has examined the facts as alleged in the first and second counts in a light most favorable to Terracon.   Based upon this review the court finds that Terracon has sufficiently alleged contractual and common-law indemnity.

Accordingly, the motion to strike is denied.

III

Conclusion

The motion to strike is denied for the reasons stated.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.