Holiday Hill Management Co. v. 100 (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 114)

FACTS

On September 21, 2011, the plaintiff, Holiday Hill Management Company d/b/a Holiday Hill, served a summons and one-count complaint on the defendant, Transport Workers Local 100–Retirees.   In the complaint, the plaintiff alleges the following.   The parties entered into a written agreement on July 15, 2005, in which the defendant agreed to indemnify the plaintiff for any claim arising from a social, recreational, or athletic event by a guest at the defendant's July 24, 2006 outing on the plaintiff's premises.¹  On May 8, 2008, Darlene and Jeffrey Terry (collectively, Terry plaintiffs), who attended the outing, filed a complaint in which, as amended on July 7, 2009, they alleged that Darlene Terry suffered personal injuries when she slipped and fell while playing ping pong on the plaintiff's premises.²  On October 22, 2010, the Terry plaintiffs settled their claims against the plaintiff for $75,000.   The plaintiff alleges that the defendant is obligated to hold harmless, defend, and indemnify the plaintiff against the Terry plaintiffs' claims for damages.

On June 12, 2013, the defendant moved for summary judgment on the ground that res judicata and/or collateral estoppel bars the plaintiff's claim for contractual indemnification.   The defendant submitted a memorandum of law and copies of filings from the prior action, Terry v. Scenic Co., Superior Court, judicial district of New Haven, Docket No. CV–08–5020442–S.³  On October 3, 2013, the plaintiff filed an opposing memorandum and submitted copies of the parties' indemnification agreement and the court's order granting the defendant's motion for summary judgment on the plaintiff's third-party claim for indemnification in Terry v. Scenic Co. On October 10, 2013, the defendant filed a reply to the plaintiff's opposing memorandum.   The matter was heard at short calendar on October 15, 2013.   On November 27, 2013, the plaintiff filed a supplemental opposing memorandum, and on December 16, 2013, the defendant filed a reply to the supplemental memorandum.

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.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata ․” (Citations omitted.)  Joe's Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441 (1996).  “Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata.”  Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993);  see also Zanoni v. Lynch, 79 Conn.App. 325, 338, 830 A.2d 314, cert. denied, 266 Conn. 928, 837 A.2d 803 (2003).

A brief procedural history is initially set forth as it will facilitate a discussion of the parties' arguments.   In the prior action, the Terry plaintiffs initially brought their claims against “Scenic Company, d.b.a. Holiday Hill” (Scenic Company).   On January 5, 2009, Scenic Company filed a third-party complaint asserting a contractual indemnification claim against the defendant.⁴  On March 24, 2009, the Terry plaintiffs asserted a direct claim against the defendant.⁵  When it was discovered that the Terry plaintiffs stated claims against the wrong corporate entity doing business as Holiday Hill, the plaintiff agreed to accept service of an amended complaint.   On July 8, 2009, the Terry plaintiffs filed an amended complaint in which they maintained their claims against Scenic Company and asserted claims against the plaintiff.

The defendant, as third-party defendant, moved for summary judgment on the third-party complaint on the ground that the Terry plaintiffs' negligence claims against the plaintiff were barred by the statutes of limitations and repose in General Statutes § 52–584.⁶  In its ruling granting the motion for summary judgment, the court stated the following:  (1) under General Statutes § 52–102a,⁷ the defendant was entitled to assert on its own behalf as third-party defendant any defense available to the plaintiff, including the statute of limitations;  (2) the negligence claims filed three years and six days after the Terry plaintiffs sustained injuries were otherwise barred by the limitations and repose provisions of General Statutes § 52–584; 8  (3) the plaintiff had agreed to accept service of an amended complaint naming it as a defendant instead of requiring the Terry plaintiffs to commence a new suit;  (4) General Statutes § 52–593 ⁹ did not extend the limitations and repose periods of § 52–584 by one year because it expressly applies only when a new action is brought after the termination of the original action;  (5) accordingly, the defendant was entitled to summary judgment on the third-party complaint because the Terry plaintiffs' claims were time-barred.

On April 21, 2010, the plaintiff filed a notice of intention to appeal.   On October 22, 2010, the Terry plaintiffs settled their claims against the plaintiff.   On October 26, 2010, the Terry plaintiffs withdrew their complaint against the plaintiff.   The plaintiff did not file an appeal.

Turning to the parties' arguments in the present case, in its supporting memorandum, the defendant first argues that the present claim for contractual indemnification is barred by res judicata.   The defendant asserts that summary judgment in its favor in the prior action was a judgment on the merits of the plaintiff's indemnification claim, which became final when the plaintiff declined to file an appeal.¹⁰  The defendant points out that except for the new allegations pertaining to the settlement, the present complaint is identical to the prior third-party complaint.   The defendant also argues that collateral estoppel bars the plaintiff from litigating the issues of (1) whether the statutes of limitations and repose barred the Terry plaintiffs' negligence claims against the plaintiff and (2) whether the defendant was entitled to assert the statutes of limitations and repose as a defense to the plaintiff's indemnification claim.   The defendant asserts that those issues were actually litigated and necessarily decided in the prior action.

The plaintiff opposes summary judgment on the ground that it is entitled as a matter of law to maintain the present indemnification claim.   First, it argues that res judicata is inapplicable.   Specifically, the prior court did not rule on the merits of (1) whether the defendant is contractually obligated to the plaintiff for indemnification or (2) whether the plaintiff could bring a separate claim against the defendant;  it only determined that the Terry plaintiffs' negligence claims were time barred and that the defendant could assert the statutes of limitations and repose as a defense.   Moreover, the prior court could not have ruled on the merits of the present indemnification claim because it did not accrue until the settlement that took place after summary judgment was rendered in the prior action.

Next, the plaintiff argues that collateral estoppel is inapplicable.   It asserts that the issue before this court—whether the defendant is contractually obligated to indemnify the plaintiff—is not identical to the statute of limitations issues decided in the prior action.

Finally, the plaintiff argues that the statutory framework offers a choice between (1) seeking indemnification while the underlying action is pending by impleading under § 52–102a and (2) waiting to seek indemnification after the underlying action is resolved.   Accordingly, General Statutes § 52–598a ¹¹ entitles the plaintiff to pursue its present timely claim for indemnification.

The defendant replies that the prior court ruled on the merits of the indemnification claim when it determined that the plaintiff could not establish an essential element of the claim, namely, its liability to the Terry plaintiffs.   Once the court determined that the Terry plaintiffs' negligence claims were time barred, the plaintiff could not be liable on those claims.   The plaintiff's failure to establish its liability on the negligence claims provided the defendant with a defense to the merits of the indemnification claim.   Accordingly, the prior judgment bars the plaintiff from reasserting its claim.   The defendant also argues that § 52–598a supplies no right to bring a separate indemnification action where the plaintiff elected to bring the claim in a prior action and the claim was determined on the merits.

In a supplemental opposing memorandum, the plaintiff addressed a recent decision in Williams v. Housing Authority of Bridgeport, Superior Court, judicial district of Fairfield, Docket No. (July 19, 2013, Sommer, J.) (56 Conn. L. Rptr. 666).   It asserts that the Williams decision, concerning the relationship between § 52–598a and a conflicting statute of limitations, “held that the unambiguous language of [§ ]52–598a shows the legislature's intent that it is to supersede all other statutes of limitation in Chapter 926 ․ as they relate to indemnity.”   The defendant replies that Williams is factually and legally distinguishable.   The defendant also argues that res judicata bars the plaintiff from advancing a legal theory it could have asserted and did assert in the prior case.

The principles of res judicata and collateral estoppel are well settled.   “[U]nder the doctrine of res judicata, [a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties ․ [on] the same claim or demand ․ Traditionally, a judgment is on the merits when it amounts to a decision as to the respective rights and liabilities of the parties, based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends, irrespective of formal, technical, or dilatory objections or contentions.”  (Citations omitted;  internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 347–48, 63 A.3d 940 (2013).  “[A] judgment obtained through the grant of summary judgment against a plaintiff constitutes a judgment on the merits for purposes of res judicata.”  Daoust v. McWilliams, 49 Conn.App. 715, 726–27, 716 A.2d 922 (1998);  see also Joe's Pizza, Inc. v. Aetna Life & Casualty Co, supra, 236 Conn. 876–77.

“Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum ․ More specifically, collateral estoppel, or issue preclusion ․ prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim ․ An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ․ An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.”  (Citations omitted;  internal quotation marks omitted.)  Powell v. Infinity Ins. Co., 282 Conn. 594, 600–01, 922 A.2d 1073 (2007).

“This court has adopted a transactional test for determining whether an action involves the same claim as a prior action such that it triggers the doctrine of res judicata ․ Put simply, we inquire whether the prior and present actions stem from the same transaction ․ [T]he claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.   What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage ․ [The doctrine] applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1)[t]o present evidence or grounds or theories of the case not presented in the first action, or (2)[t]o seek remedies or forms of relief not demanded in the first action ․ In implementing this test, this court has considered the group of facts which is claimed to have brought about an unlawful injury to the plaintiff and has noted that [e]ven though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action.”  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)  Weiss v. Weiss, 297 Conn. 446, 461–62, 998 A.2d 766 (2010).

“In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.”  (Internal quotation marks omitted.)  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, 137 Conn.App. 359, 366, 48 A.3d 705, cert. denied, 307 Conn. 916, 54 A.3d 180 (2012).   Here, in the prior action, the court was required to consider whether the defendant was liable to indemnify the plaintiff for the Terry plaintiffs' negligence claims.   In the present action, the plaintiff is asking the court to determine whether the defendant is obligated to indemnify it for $75,000 paid in settlement of those claims after a court determined that they were time barred.   The court filed its order granting summary judgment on April 8, 2010.   The settlement occurred on October 22, 2010.   Thus, the event giving rise to the present claim occurred after the prior judgment was rendered.  “Pursuant to a comment to the Restatement section articulating the transactional test for res judicata, which Connecticut cases employ, [m]aterial operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first.”  (Emphasis omitted;  internal quotation marks omitted.)  Landmark Investment Group, LLC v. Chung Family Realty Partnership, LLC, supra, 137 Conn.App. 368;  see Cadle Co. v. Gabel, 69 Conn.App. 279, 298, 794 A.2d 1029 (2002) (“We agree with the plaintiff that the entire scheme of which it complains was not accomplished until after the [prior] action was over.   To conclude that its claim is now barred by res judicata would be to require omniscience in litigation.”);  In re Juvenile Appeal (83–DE), 190 Conn. 310, 319, 460 A.2d 1277 (1983) (adjudication that ground for termination of parental rights did not exist at one time does not mean ground has not arisen at later time).¹²  Accordingly, the issue for the court's determination is whether the settlement constitutes a transaction on which the plaintiff may base an action that is not precluded by the prior court's judgment.

“In Connecticut, there are cases that are instructive when determining when an action to enforce an indemnity contract accrues.   The logic and rationale underlying our indemnity case law are based on the premise that an action for indemnification is one in which one party seeks reimbursement from another party for losses incurred in connection with the first party's liability to a third party.”  Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 148, 810 A.2d 259 (2002).  “Generally, indemnity agreements fall broadly into two classes, those [in which] the contract is to indemnify against liability and those [in which] it is to indemnify against loss.   In the first, the cause of action arises as soon as liability is incurred, but in the second it does not arise until the indemnitee has actually incurred the loss.”  (Internal quotation marks omitted.)  Id., 149.

“[A] loss in the context of indemnity is the payment that discharges a liability.”  Id. “Thus, under an agreement to indemnify against loss only, it is theoretically impossible for an indemnitee to have an actionable claim against the indemnitor until the indemnitee actually has paid something he is legally obligated to pay.”  Id., 149–50;  see also Connecticut Attorneys Title Ins. Co. v. McDonough, Superior Court, judicial district of Hartford, Docket No. CV–93–0530925 (December 4, 1996, Sheldon, J.) (18 Conn. L. Rptr. 337, 343) ( [”I]ndemnification rights accrue either when a judgment requiring payment enters against the indemnitee or when the indemnitee pays a claim which he could have been compelled at law to pay ․ [W]here a person is confronted with an obligation that he cannot legally resist, the fact of voluntary payment does not negative the right to indemnity ․” [Citations omitted;  emphasis altered;  internal quotation marks omitted.] ).   “Conversely, an action to enforce an agreement to indemnify against liability only would accrue as soon as an indemnitee becomes liable to a third party.”   (Citation omitted.)  Amoco Oil Co. v. Liberty Auto & Electric Co., supra, 149–50.

“When an agreement indemnifies against both loss and liability, we have concluded that the statute of limitations begins to run as soon as liability is incurred ․ It is logical that the action accrues when liability is incurred because if loss is the payment that discharges the liability, loss will always follow liability.   Thus, the first moment in time when an indemnitee can successfully maintain an action to enforce the terms of an indemnity agreement that indemnifies against both loss and liability is when liability is incurred.”  (Citations omitted.)  Id., 150–51.

In sum, a claim for indemnification arises either when liability is incurred or upon a “determination by payment under a valid claim of right.”   Connecticut Attorneys Title Ins. Co. v. McDonough, supra, 18 Conn. L. Rptr. 344.   It has been held that a settlement offer is invalid after the expiration of the statute of limitations renders the plaintiff's claims legally unenforceable.   See Brzezinek v. Covenant Ins. Co., 74 Conn.App. 1, 3–4, 810 A.2d 306 (2002), cert. denied, 262 Conn. 946, 815 A.2d 674 (2003).

In the present case, the plaintiff has not alleged a liability or a loss giving rise to a fresh claim for indemnification.   First, the necessary implication of the prior court's ruling that the Terry plaintiffs' negligence claims were time barred is that the plaintiff could not establish its liability to the Terry plaintiffs.   Because the plaintiff could not establish the liability that was essential to prevailing on its indemnification claim, the defendant was entitled to summary judgment.   Second, in light of the court's determination that the negligence claims were time barred, the plaintiff's payment in settlement of those claims did not give rise to a loss as contemplated by the foregoing authorities.   Once the court determined that the negligence claims against the plaintiff were legally unenforceable, any payment the plaintiff made on those claims was voluntary.   Considering pragmatically whether the doctrine should apply, as the court must;  Weiss v. Weiss, supra, 297 Conn. 461–62;  the defendant neither could have nor should have expected to have to indemnify the plaintiff for a voluntary settlement payment after a judicial determination that the plaintiff could not be liable on the underlying claims.   The settlement does not give rise to a new claim for indemnification and thus is not a separate transaction so as to defeat the preclusive effect of the prior judgment.   Accordingly, the court concludes that the prior judgment is res judicata of the plaintiff's present claim.

The defendant also argues that the plaintiff may not relitigate the issues of (1) whether the Terry plaintiffs' claims against the plaintiff were time barred and (2) whether the defendant was entitled to assert the statutes of limitations and repose as a defense to the plaintiff's indemnification claim because both issues were actually litigated and necessarily decided in the prior action.   This court agrees with the defendant.   As discussed above, the untimeliness of the Terry plaintiffs' claims against the plaintiff was the basis for the defendant's prior motion for summary judgment on the plaintiff's indemnification claim.   As authority for its ability to assert a defense to the plaintiff's liability in its own defense, the defendant relied on § 52–102a(b).  The court agreed that the claims were untimely and that the defendant was entitled to assert the statute of limitations defense under § 52–102a(b).  These determinations were essential to the court's conclusion that the defendant was entitled to summary judgment on the plaintiff's third-party claim.   Accordingly, the plaintiff is collaterally estopped from relitigating these issues, and the prior court's determinations are binding on this court.

The plaintiff's additional arguments are of no merit.   The plaintiff argues that notwithstanding its decision to implead the defendant in the prior action under § 52–102a, § 52–598 permits the present claim.   The defendant counters that the option of filing a new claim is extinguished once a party has put its rights and liabilities in issue and that § 52–598 does not provide an exception to the doctrine of res judicata.

In this regard, the present case is similar to Sachem Enterprises v. Southern Connecticut Gas Co., 44 Conn.Sup. 163, 674 A.2d 874 (1994), aff'd, 41 Conn.App. 161, 674 A.2d 872, cert. denied, 237 Conn. 931, 677 A.2d 1372 (1996).   As the defendant in a prior negligence action, Sachem impleaded the gas company, alleging a claim for common-law indemnification.  Id., 164.   The court directed a verdict against Sachem on the third-party complaint.   Thereafter, Sachem filed a complaint alleging that the gas company was obligated to indemnify Sachem for expenses arising from the prior litigation and underlying events.   The defendant gas company moved for summary judgment on grounds that Sachem's claim was precluded by the prior litigation and judgment as to the third party complaint.   Sachem claimed that the indemnification it sought in the prior action was different from the claim alleged in the subsequent action.   In the prior action, Sachem argued, it sought indemnification as to any judgment recovered against it;  in the subsequent action it was seeking damages for having it defend against claims that it alleged would not have arisen but for the gas company's negligence.   Id., 165, 167.

In its decision granting the gas company's motion for summary judgment on res judicata grounds, the court stated:  “The distinction that Sachem offers between its past and present claims does not affect the applicability of the doctrine of claim preclusion under Connecticut law;  the preclusive effect of a prior judgment includes “any claims relating to the cause of action which were actually made or might have been made.

“While Sachem may be correct in claiming that it need not have sought indemnification from the gas company in [the prior action] but could have filed a separate suit seeking indemnification after the resolution of that case ․ the Supreme Court stated quite clearly ․ that the option of filing a subsequent claim for indemnification is no longer present after a party has, in fact, expressly put its rights and liabilities as to another defendant at issue in the first action by cross complaint or other adversary pleadings.   In that situation, failure to assert all theories together ․ results in preclusion of those claims that could have been raised but were not.”  (Citation omitted;  emphasis in original.)  Id., 167–68 (also citing Malerba v. Cessna Aircraft Co., 210 Conn. 189, 196, 554 A.2d 287 (1989), considering “whether as a matter of law, an indemnification action may ever be pursued against the background of a statutory comparative liability action where the trier of the first party claim against the various defendants is required to apportion liability among the plaintiff and all the defendants”).

As in Sachem, the plaintiff already put in issue the defendant's indemnification liability via third-party complaint in the prior action.   Having elected to do so, the plaintiff is not entitled to seek a different outcome by pursuing a new claim after the prior claim was decided on its merits.   Although in Sachem “[t]he transaction or occurrence at issue in the present action is the same one at issue in the third-party complaint in [the prior action]”;  id.;   and in this case the present claim rests on the settlement following the prior court's grant of summary judgment, as previously discussed, the settlement does not dictate a different outcome because it did not give rise to a valid claim for indemnification.

Likewise, with respect to the plaintiff's argument relating to § 52–598, it could and did assert an argument based on § 52–598a in the prior action.   In its memorandum in the prior action, opposing the defendant's motion for summary judgment on the third-party claim, the plaintiff argued that “the statute of limitations for the claim asserted by [the plaintiff] as against the ․ defendant has not yet accrued under ․ § 52–598a” so that “if [the] defendant is successful in this motion, a separate action for indemnification will still be allowed under ․ § 52–598a after settlement or judgment of the [Terry] plaintiffs' claims with no participation by [the] defendant in the defense of [the Terry] plaintiffs' action.”  “[T]he appropriate inquiry with respect to both [claim and issue] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding ․” (Emphasis in original;  internal quotation marks omitted.)  Jackson v. R.G. Whipple, Inc., supra, 225 Conn. 717–18.   Here, the plaintiff had adequate opportunity to raise this issue in the prior action and in fact did so.   The plaintiff is therefore barred from advancing this theory in support of its present claim.¹³

Finally, the plaintiff's reliance on Williams v. Housing Authority of Bridgeport, supra, 56 Conn. L. Rptr. 666, is unavailing.   In Williams, the plaintiff filed a complaint alleging negligence against, inter alia, the Housing Authority and Kaspar Group, Inc., an architecture firm, and its shareholders (collectively, Kaspar).  Id., 667.   The Housing Authority filed a third-party complaint alleging common-law indemnification against Kaspar.   Id. Kaspar moved for summary judgment on the negligence and indemnification claims on the ground that the applicable seven-year statute of limitations expired before either action was commenced.  Id., 668.   The court granted the motion as to the negligence claim.  Id., 672.

With respect to the indemnification claim, Kaspar made two arguments.   First, General Statutes § 52–584a(a) ¹⁴ barred the claim because Kaspar substantially completed its work more than seven years before the claim accrued.  Id., 668.   Second, even if § 52–598 prevailed over § 52–584a(a) and the claim was not time barred, it was nevertheless premature because the underlying action had not been determined.  Id., 669.   The court rejected both arguments and denied Kaspar's motion as to the indemnification claim.  Id., 669–71.

With regard to the controlling statute of limitations, the court noted that Kaspar “[argues] quite persuasively that if the court were to construe § 52–598a as allowing indemnification suits against architects more than seven years after substantial completion of the subject improvement, it would at least partially frustrate the intent behind § 52–584a.   The problem, however, is that the legislature has expressly and unambiguously stated that § 52–598a is the controlling statute for all indemnification actions, notwithstanding any provisions in the chapter to the contrary, including 52–584a.”  Id., 669.   With regard to whether the claim was premature, “the purpose of § 52–102a ․ is to accelerate the right to assert an indemnification claim, even if the ultimate determination of the underlying suit has yet to occur.   A more cohesive reading of § 52–102a and § 52–598a is that a third-party indemnification action may be brought before settlement or judgment if the third-party defendant may be liable ․” Id., 670;  cf.  Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn.App. 699, 711, 700 A.2d 1179 (1997) (“Section 52–598a expressly provides that a cause of action for indemnity does not arise until the determination of the underlying action against the party seeking indemnification.   Thus, where an indemnity is against loss ․ the loss must actually occur and be ascertainable before the indemnitee can maintain an action.”).

Williams is inapposite.   First, in that case the court considered the timeliness of the indemnification claim, which is not in issue in the present case.   Second, the Williams court's determination that an unaccrued indemnification claim may be brought under § 52–102a is of no avail to the plaintiff in the present case where (1) it is undisputed that the plaintiff was permitted to implead the defendant in the prior action;  (2) the judgment in that action conclusively determined that the defendant was not liable for indemnification;  and (3) no claim for indemnification has subsequently accrued because as previously discussed the voluntary settlement payment did not give rise to new claim for indemnification.

CONCLUSION

For all of the foregoing reasons, the defendant's motion for summary judgment is granted.

Wilson, J.

FOOTNOTES

FN1. The agreement is attached as an exhibit to the complaint and provides in relevant part:  “I promise to accept all responsibility for and protect you from any or all loss or costs, including the cost to defend you in any suits, arising from claims or demands which others may make against you for accidents or problems arising out of any social, recreational, athletic or sports event, any lack of chaperon or supervisory services, or the conduct of any member of my group.”.  FN1. The agreement is attached as an exhibit to the complaint and provides in relevant part:  “I promise to accept all responsibility for and protect you from any or all loss or costs, including the cost to defend you in any suits, arising from claims or demands which others may make against you for accidents or problems arising out of any social, recreational, athletic or sports event, any lack of chaperon or supervisory services, or the conduct of any member of my group.”

FN2. Jeffrey Terry asserted a claim for loss of consortium..  FN2. Jeffrey Terry asserted a claim for loss of consortium.

FN3. The filings included the following:  (1) docket sheet;  (2) summons and complaint;  (3) the plaintiff's motion to implead and supporting documents;  (4) the Terry plaintiffs' cross-complaint against the defendant;  (5) notice of filing amended complaint by consent and amended complaint;  (6) revised second amended complaint;  (7) order granting the defendant's motion for summary judgment on the Terry plaintiffs' claims;  (8) revised amended third-party complaint;  (9) the defendant's motion for summary judgment on the plaintiff's third-party claims and supporting memorandum of law and exhibits;  (10) the plaintiff's objection and memorandum in opposition to the motion for summary judgment;  (11) the defendant's reply memorandum;  (12) order granting the defendant's motion for summary judgment on the plaintiff's third-party claim;  and (13) the plaintiff's notice of intention to appeal..  FN3. The filings included the following:  (1) docket sheet;  (2) summons and complaint;  (3) the plaintiff's motion to implead and supporting documents;  (4) the Terry plaintiffs' cross-complaint against the defendant;  (5) notice of filing amended complaint by consent and amended complaint;  (6) revised second amended complaint;  (7) order granting the defendant's motion for summary judgment on the Terry plaintiffs' claims;  (8) revised amended third-party complaint;  (9) the defendant's motion for summary judgment on the plaintiff's third-party claims and supporting memorandum of law and exhibits;  (10) the plaintiff's objection and memorandum in opposition to the motion for summary judgment;  (11) the defendant's reply memorandum;  (12) order granting the defendant's motion for summary judgment on the plaintiff's third-party claim;  and (13) the plaintiff's notice of intention to appeal.

FN4. Although in Terry v. Scenic Co. the plaintiff and defendant in the present action were the defendant/third-party plaintiff and the third-party defendant, respectively, for purposes of consistency they are referred to by their party designations in the present action..  FN4. Although in Terry v. Scenic Co. the plaintiff and defendant in the present action were the defendant/third-party plaintiff and the third-party defendant, respectively, for purposes of consistency they are referred to by their party designations in the present action.

FN5. On November 11, 2009, the court granted the defendant's motion for summary judgment on the Terry plaintiffs' claims..  FN5. On November 11, 2009, the court granted the defendant's motion for summary judgment on the Terry plaintiffs' claims.

FN6. General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”.  FN6. General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․”

FN7. General Statutes § 52–102a provides in relevant part:  “(a) 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 to him for all or part of the plaintiff's claim against him ․ (b) The ․ person upon whom it is served, hereinafter called the third-party defendant ․ may ․ assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim ․”.  FN7. General Statutes § 52–102a provides in relevant part:  “(a) 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 to him for all or part of the plaintiff's claim against him ․ (b) The ․ person upon whom it is served, hereinafter called the third-party defendant ․ may ․ assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim ․”

FN8. The plaintiff itself declined to assert the limitation and repose provisions of § 52–584 as a defense to the Terry plaintiffs' claims..  FN8. The plaintiff itself declined to assert the limitation and repose provisions of § 52–584 as a defense to the Terry plaintiffs' claims.

FN9. General Statutes § 52–593 provides in relevant part:  “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.”.  FN9. General Statutes § 52–593 provides in relevant part:  “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action.”

FN10. The defendant argues that even if this court were to disagree with the grant of summary judgment in its favor in the prior case, that disagreement would be no basis for denying the present motion for summary judgment..  FN10. The defendant argues that even if this court were to disagree with the grant of summary judgment in its favor in the prior case, that disagreement would be no basis for denying the present motion for summary judgment.

FN11. General Statutes § 52–598a provides:  “Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.”.  FN11. General Statutes § 52–598a provides:  “Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.”

FN12. In American Broadcasting Cos. v. Walter Reade–Sterling, Inc., 43 Cal.App.3d 401, 117 Cal.Rptr. 617 (1974), California's appellate court considered what facts would form the basis of a new indemnification claim.   It held that the trial court abused its discretion in giving res judicata effect to a prior judgment of nonsuit that was granted on the ground that the cross-complainant failed to establish proof of payment of attorneys fees, which was a condition precedent to recovering on its contractual indemnification claim.  Id., 408.  “The theory of ․ res judicata ․ extends only to the facts in issue as they existed at the time the judgment was rendered and does not prevent a reexamination of the same questions between the same parties where in the interim the facts have changed or new facts have occurred which may alter the legal rights of the parties.   When other facts or conditions intervene before a second suit, furnishing a new basis for the claims and defenses of the respective parties, the issues are no longer the same and the former judgment cannot be pleaded in bar of the second action.”  (Emphasis omitted.)  Id..  FN12. In American Broadcasting Cos. v. Walter Reade–Sterling, Inc., 43 Cal.App.3d 401, 117 Cal.Rptr. 617 (1974), California's appellate court considered what facts would form the basis of a new indemnification claim.   It held that the trial court abused its discretion in giving res judicata effect to a prior judgment of nonsuit that was granted on the ground that the cross-complainant failed to establish proof of payment of attorneys fees, which was a condition precedent to recovering on its contractual indemnification claim.  Id., 408.  “The theory of ․ res judicata ․ extends only to the facts in issue as they existed at the time the judgment was rendered and does not prevent a reexamination of the same questions between the same parties where in the interim the facts have changed or new facts have occurred which may alter the legal rights of the parties.   When other facts or conditions intervene before a second suit, furnishing a new basis for the claims and defenses of the respective parties, the issues are no longer the same and the former judgment cannot be pleaded in bar of the second action.”  (Emphasis omitted.)  Id.

FN13. The plaintiff's reliance on Barringer v. Whole Foods Market, Inc., Superior Court, judicial district of Hartford, Docket No. CV–09–6005918–S (July 14, 2011, Sheldon, J.) (52 Conn. L. Rptr. 410), is misplaced.   In Barringer, the court granted the third-party defendant's motion to dismiss on the ground that the defendant's failure to serve its third-party complaint within the limitations period provided by General Statutes § 52–577a(b) deprived the court of personal jurisdiction.  Id., 413.   After concluding that the third-party complaint was time-barred, the court stated:  “[the defendant's] claim of indemnification against the [third-party defendant] still may be pursued in a separate suit at a later date.   See ․ § 52–598a.”  Id. Barringer is distinguishable.   The court's ruling on the motion to dismiss was not a judgment on the merits of the indemnification claim.   See Santorso v. Bristol Hospital, supra, 308 Conn. 345–46.   Furthermore, the Barringer court considered only the limited issue of whether the defendant was permitted to bring its third-party indemnification claim together with the original action..  FN13. The plaintiff's reliance on Barringer v. Whole Foods Market, Inc., Superior Court, judicial district of Hartford, Docket No. CV–09–6005918–S (July 14, 2011, Sheldon, J.) (52 Conn. L. Rptr. 410), is misplaced.   In Barringer, the court granted the third-party defendant's motion to dismiss on the ground that the defendant's failure to serve its third-party complaint within the limitations period provided by General Statutes § 52–577a(b) deprived the court of personal jurisdiction.  Id., 413.   After concluding that the third-party complaint was time-barred, the court stated:  “[the defendant's] claim of indemnification against the [third-party defendant] still may be pursued in a separate suit at a later date.   See ․ § 52–598a.”  Id. Barringer is distinguishable.   The court's ruling on the motion to dismiss was not a judgment on the merits of the indemnification claim.   See Santorso v. Bristol Hospital, supra, 308 Conn. 345–46.   Furthermore, the Barringer court considered only the limited issue of whether the defendant was permitted to bring its third-party indemnification claim together with the original action.

FN14. General Statutes § 52–584a(a) provides in relevant part:  “No action or arbitration, whether in contract, in tort, or otherwise ․ (2) for contribution or indemnity which is brought as a result of [a] claim for damages [for deficient design or construction of an improvement to real property] shall be brought against any architect ․ performing or furnishing the design ․ of ․ such improvement more than seven years after substantial completion of such improvement.”.  FN14. General Statutes § 52–584a(a) provides in relevant part:  “No action or arbitration, whether in contract, in tort, or otherwise ․ (2) for contribution or indemnity which is brought as a result of [a] claim for damages [for deficient design or construction of an improvement to real property] shall be brought against any architect ․ performing or furnishing the design ․ of ․ such improvement more than seven years after substantial completion of such improvement.”

Wilson, Robin L., J.