Bruce Hayn, Sr. et al. v. LLC (2015)

MEMORANDUM OF DECISION ON MOTION OF DEFENDANT ICON LEGACY CUSTOM MODULAR HOMES, LLC, FOR SUMMARY JUDGMENT (# 194)

By their complaint dated November 2, 2011, the plaintiffs Bruce Hayn, Sr., and Patricia C. Hayn, his spouse, in counts three and four respectively,¹ sued Icon Legacy Custom Modular Homes, LLC (movant), for negligence.   On February 17, 2012, the movant filed cross claims against its co-defendants including a second cross claim against Tri–County Homes, LLC (Tri–County Homes), for indemnification based on a contract between them.   On May 30, 2014, the movant moved for summary judgment against the plaintiffs on counts three and four and against Tri–County Homes, on the movant's second cross claim.   The plaintiffs and Tri–County Homes filed opposing briefs on September 16, 2014.   The motion was argued on October 27, 2014.

FACTS

On November 12, 2009, at a construction site at 576 Bethel Road in Griswold, Connecticut, the plaintiff Bruce Hayn, Sr., was injured when an uninstalled porch roof section (a module of a manufactured home) blew over onto him.   As part of a complete modular home, the porch roof section had been purchased by defendant Tri–County Homes from, and manufactured in Pennsylvania by, the movant.   Along with the other modules comprising a modular home, the porch roof section had been trucked to the building site by a trucking company hired by the movant.   The subject module was triangular in shape when viewed from the side, the hypotenuse being the line of the sloping roof:  it was shaped like a wedge of cheese.   Viewed from above, it was approximately ten feet long and eight feet wide.²  The long end of the “wedge” was approximately three feet.   It weighed over five hundred pounds.

The removal of the modules from the truck which had brought them from the movant's factory was the final step in delivering the modules to Tri–County Homes.   The movant had hired the defendant Keith Aurand Construction, LLC (Aurand Construction), a contractor with which the movant had done many modular home installations before, to remove the modules from the truck.   Aurand Construction did so on November 11, 2009:  it placed the subject module on the ground at the site on one of its triangular ends.   November 12, 2009, was at the relevant time a windy day.   Bruce Hayn, Sr. (Hayn), who was coordinator of the construction activities at the building site, was tying his shoe near the subject module when it blew over on top of him, causing him injuries.

The contract between Tri–County Homes and the movant for purchase of the manufactured home included five pages entitled “Conditions, Covenants and Terms,” including five indemnification clauses favoring the movant, as seller.   These clauses are discussed specifically below.

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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010);  see Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013).   The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   The court views the evidence in the light most favorable to the nonmoving party.   See Brooks v. Sweeney, supra.   The court's function here is not to decide issues of material fact, but only to determine whether any such issue exists.   See Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   Statements that are merely conclusions are not considered evidence for present purposes.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

THE MOTION FOR SUMMARY JUDGMENT AS TO COUNTS THREE AND FOUR

Count three, on which count four is based, alleges in pertinent essence that, on November 12, 2009, the movant was in the process of delivering pieces of the modular home to the building site and storing them there;  that the movant, through one or more agents, negligently failed a) to safely and securely set the subject porch roof module on the ground so it would not fall over, b) to supervise the modular home “setting process,” allowing the module to fall over, and c) to warn Hayn that they could not safely “set” the roof sections and they had not made proper arrangements to prevent a roof section from falling over;  and that the movant's failure to protect and warn Hayn was a substantial factor in causing his injuries.

The essence of the present motion, as to counts three and four, is that the plaintiffs have not produced, and cannot produce, any evidence of a specific dangerous and/or defective condition which caused the module to fall on Hayn and for which the movant was responsible.   While it is undisputed that no officer or employee of the movant was at the subject building site at the time of Hayn's accident, the movant has failed to prove its entitlement to judgment on counts three and four.   Under the contract between the movant and Tri–County, the movant agreed to deliver the home modules, or sections, to the building site.   Delivery of the modules apparently, or at least arguably, included removal of the modules from the trucks and placing them on the building site.   Such removal implicitly, or at least arguably, included placing the modules on the building site in a safe manner.

The movant admits that it hired Aurand Construction to take the modules off the trucks and place the modules on the building site.   This court cannot conclude as a matter of law that Aurand Construction was not the agent of the movant in performing that task.   See Hollister v. Thomas, 110 Conn.App. 692, 706, 955 A.2d 1212 (2008) (existence of agency relationship is usually a question of fact).   Nor can the court conclude as a matter of law that leaving the module on the ground on its triangular end did not create a dangerous condition or that doing so was not reasonably avoidable.   The placement of the module on its end apparently, or at least arguably, created the hazard which occurred:  the wind blew it over and a man was hurt.   That the risk of the module blowing over may have been small, given its weight, does not matter for present purposes:  where the foreseeable risk of injury, if it occurs, is that the injury will be serious, the duty to avoid the risk is commensurately great.   See Galligan v. Blais, 170 Conn. 73, 77, 364 A.2d 164 (1976).   The degree of risk of injury is generally, and here, a question for the jury.

Even if the court could conclude, as a matter of law, that Aurand Construction was not the movant's agent for delivery of the module to Tri–County Homes, the court cannot conclude, as a matter of law, that the movant had no duty to instruct whoever unloaded the module not to stand the module on its end—at least not in a place exposed to the wind—or to warn third parties such as the plaintiff of the hazard if that were done.³

The evidence indicates that, contrary to the contract between the movant and Tri–County Homes, the movant took responsibility for erection of the modular home and hired Aurand Construction to perform that job.   There is at least a question of fact whether the movant, by its agent Aurand Construction, was in control of the premises on the day the module fell on Hayn. See Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003) (contractor's control of premises need not be exclusive for liability to be found).   What is clear is that, the day before, Aurand Construction was the movant's agent for the task of delivering the module and that Aurand Construction did that by leaving the module on its end.   Therefore, even if the movant was not in control of the premises on the day of the accident, the movant could no more avoid liability on that ground than if, during construction of the modular home, it installed a ceiling light fixture so poorly that, after the home had been erected and sold, the fixture fell off the ceiling and injured someone.⁴

THE MOTION FOR SUMMARY JUDGMENT ON THE CROSS CLAIM AGAINST TRI–COUNTY HOMES

The movant's second cross claim alleges, in pertinent essence, that the movant and Tri–County Homes entered into a contract for the purchase by Tri–County Homes from the movant of a modular home;  that the conditions, covenants and terms of the contract included Tri–County Homes' agreement to assume all responsibility for set-up and erection of the home and to defend and indemnify the movant against, and hold the movant harmless from, any damages, loss or injury occurring on the site after delivery of the modular home by the movant;  that Tri–County Homes breached those covenants; ⁵  and that Tri–County Homes “is and will be liable to Icon ․ for the full amount of any verdict and/or judgment and/or settlement or other recovery that plaintiff may recover against Icon including, but not limited to, all court costs, filing fees and attorneys fees incurred in defense of this action and prosecution of this cross claim.”

The existence of a five-page list of “conditions, covenants and terms” in the contract for Tri–County Homes' purchase of the modular home from the movant is undisputed.   The movant summarizes the indemnification terms on which it bases this part of the present motion as follows:  “(1) that Tri–County shall indemnify and hold Icon harmless from and against any loss caused by, or resulting from, any code violation;  (2) that Tri–County shall be responsible for any damages, loss, injury or death caused by or related to the module/unity on the job site, and shall hold Icon harmless for the same;  (3) that Icon shall have no responsibilities or duties to anyone with regard to the suitability or adequacy of the foundation, and Tri–County agrees to indemnify and hold Icon harmless from and against any damage or loss caused by the inadequacy of the foundation;  (4) that Tri–County shall indemnify and hold Icon harmless from and against any loss to the module/unit, or caused by the module/unit, or by any action upon the module/unit, thereafter;  and (5) that Tri–County shall have the sole responsibility and duty to move the module/unit from the place of delivery and to set and erect it on the foundation ․ Tri–County expressly agrees to indemnify and hold Icon harmless from any duty or responsibility for so moving and/or erecting the module(s)/unit(s).”

Although the foregoing summary of Tri–County Homes' covenants is accurate as far as it goes, the court cannot conclude that the movant has shown its entitlement to judgment on the second cross claim.   Only two of the five indemnity covenants bear substantial discussion.⁶  Indemnity clause (2) is unenforceably sweeping.   If literally enforced, indemnity clause (2) would mean that Tri–County Homes agreed to hold the movant harmless from any damages, loss or injury caused by or related to the module which blew over onto Hayn—even if the movant's negligence caused the damages, loss or injury.  General Statutes § 52–572k ⁷ invalidates such covenants as to the only basis on which the plaintiffs are suing the movant—its alleged negligence.

Part of indemnity clause (4)—Tri–County Homes' agreement to indemnify the movant against, and hold the movant harmless from, any loss caused by the module/unit—is similarly sweeping and also void under § 52–572k as to any “liability for damage arising out of bodily injury to persons ․ caused by or resulting from the negligence of such promisee [or] such promisee's agents.”

If the jury finds for the movant on counts three and four, the result being that the movant incurred losses in successfully defending this case, the parts of clause (4) by which Tri–County Homes agreed to indemnify/hold harmless the movant against “loss ․ caused by the module/unit, or by any action upon the module/unit, thereafter”—i.e., after delivery—may be actionable.⁸  However, the movant is not entitled to summary judgment on the second cross claim because, as an indemnification action, it is premature.   Unless and until there is a final judgment in the movant's favor on counts three and four, it cannot be told that there is any enforceable liability of Tri–County Homes under clause (4).  General Statutes § 52–598a provides as follows:  “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.”   In the present context, § 52–598a means that the movant's “cause of action for indemnity does not arise until the determination of the underlying action against the party seeking indemnification.”  Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn.App. 699, 711, 700 A.2d 1179 (1997).

For the reasons stated above, the motion of Icon Legacy Custom Modular Homes, LLC, is denied.

Cole–Chu, J.

FOOTNOTES

FN1. According to their titles, counts three and four are against Icon Legacy Custom Modular Homes, LLC. Each count refers to the plural “defendants” several times and, at oral argument, the plaintiffs' counsel said those references are indeed to all defendants.   Whether either count three or count four is intended to be against defendants other than the movant is irrelevant to the present motion.   Also, the complaint has been revised, but not in ways pertinent to this motion..  FN1. According to their titles, counts three and four are against Icon Legacy Custom Modular Homes, LLC. Each count refers to the plural “defendants” several times and, at oral argument, the plaintiffs' counsel said those references are indeed to all defendants.   Whether either count three or count four is intended to be against defendants other than the movant is irrelevant to the present motion.   Also, the complaint has been revised, but not in ways pertinent to this motion.

FN2. It appears from a photograph attached to the plaintiffs' brief as Exhibit C that the ten-foot length is the length of the section and eight feet is the “width,” i.e., the depth of the porch the roof is to cover.   If the two dimensions were reversed, it would not matter to this decision:  the result of placing the module on end was to create what might reasonably be called a sail at least eight feet high..  FN2. It appears from a photograph attached to the plaintiffs' brief as Exhibit C that the ten-foot length is the length of the section and eight feet is the “width,” i.e., the depth of the porch the roof is to cover.   If the two dimensions were reversed, it would not matter to this decision:  the result of placing the module on end was to create what might reasonably be called a sail at least eight feet high.

FN3. At oral argument, the movant's attorney asserted that the area was cordoned off and the plaintiffs' attorney asserted the contrary.   Whether or not the area where the module was standing on its end was cordoned off, and if so by whom—or whether both counsel are correct based on different definitions of “the area”—is irrelevant to this decision..  FN3. At oral argument, the movant's attorney asserted that the area was cordoned off and the plaintiffs' attorney asserted the contrary.   Whether or not the area where the module was standing on its end was cordoned off, and if so by whom—or whether both counsel are correct based on different definitions of “the area”—is irrelevant to this decision.

FN4. The movant argued that summary judgment should be granted because the plaintiffs had no expert witness on the standard of care for storage of modular home pieces.   Apart from the existence of other triable issues of material fact—and apart from the plaintiffs' disclosure of an expert witness since oral argument—it does not appear that the question of whether there is a duty to avoid placing a large, unanchored, vertical surface where wind could blow it over requires an expert's opinion.   See Allison v. Manetta, 284 Conn. 389, 405–06, 933 A.2d 1197 (2007)..  FN4. The movant argued that summary judgment should be granted because the plaintiffs had no expert witness on the standard of care for storage of modular home pieces.   Apart from the existence of other triable issues of material fact—and apart from the plaintiffs' disclosure of an expert witness since oral argument—it does not appear that the question of whether there is a duty to avoid placing a large, unanchored, vertical surface where wind could blow it over requires an expert's opinion.   See Allison v. Manetta, 284 Conn. 389, 405–06, 933 A.2d 1197 (2007).

FN5. The second cross claim does not allege that the movant demanded that Tri–County Homes perform the alleged covenants of the contract between them.   Nor does the movant allege the acts or omissions claimed to constitute Tri–County Homes' breach.   Such omissions are unimportant to this decision.   It is obvious that the movant claims Tri–County Homes' breach was in not indemnifying, or holding harmless, the movant as agreed and Tri–County Homes did not oppose the motion on pleading grounds..  FN5. The second cross claim does not allege that the movant demanded that Tri–County Homes perform the alleged covenants of the contract between them.   Nor does the movant allege the acts or omissions claimed to constitute Tri–County Homes' breach.   Such omissions are unimportant to this decision.   It is obvious that the movant claims Tri–County Homes' breach was in not indemnifying, or holding harmless, the movant as agreed and Tri–County Homes did not oppose the motion on pleading grounds.

FN6. Indemnity clause (1) is irrelevant to the present motion because it only applies to code violations resulting from Tri–County Homes' failure to notify the movant of a code requirement.   Indemnity clause (3) is irrelevant because the plaintiffs' claims do not concern the suitability or adequacy of the foundation on which the modular home the movant sold to Tri–County Homes was to be placed.   Indemnity clause (4) is irrelevant, except as discussed above, because no claim in this suit concerns loss to a module or unit, or caused by the module/unit (as distinguished from the movant's alleged negligence), or by any action upon the module/unit, let alone such loss “thereafter.”  “Thereafter,” in the context of section 3(e) of the conditions, covenants and terms document, where this indemnity covenant appears, means “after delivery of the module/unit to the Job Site, or to any ‘staging area.’  “ Although Hayn's accident happened after the movant's delivery of the module to the work site, including standing it on its triangular end, the movant's liability in this case, if any, arises from what was done in the process of delivery of the module to the job site, not what happened after delivery.   Indemnity clause (5) is irrelevant because Hayn's accident in no way involves Tri–County Homes' movement of the module from the place of delivery..  FN6. Indemnity clause (1) is irrelevant to the present motion because it only applies to code violations resulting from Tri–County Homes' failure to notify the movant of a code requirement.   Indemnity clause (3) is irrelevant because the plaintiffs' claims do not concern the suitability or adequacy of the foundation on which the modular home the movant sold to Tri–County Homes was to be placed.   Indemnity clause (4) is irrelevant, except as discussed above, because no claim in this suit concerns loss to a module or unit, or caused by the module/unit (as distinguished from the movant's alleged negligence), or by any action upon the module/unit, let alone such loss “thereafter.”  “Thereafter,” in the context of section 3(e) of the conditions, covenants and terms document, where this indemnity covenant appears, means “after delivery of the module/unit to the Job Site, or to any ‘staging area.’  “ Although Hayn's accident happened after the movant's delivery of the module to the work site, including standing it on its triangular end, the movant's liability in this case, if any, arises from what was done in the process of delivery of the module to the job site, not what happened after delivery.   Indemnity clause (5) is irrelevant because Hayn's accident in no way involves Tri–County Homes' movement of the module from the place of delivery.

FN7. § 52–572k provides, in pertinent part, “Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto ․ that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee's agents or employees, is against public policy and void ․”.  FN7. § 52–572k provides, in pertinent part, “Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto ․ that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee's agents or employees, is against public policy and void ․”

FN8. In context of section 3(e) of the conditions, covenants and terms document, indemnity covenant (4) arguably is limited to direct loss to the movant “caused by the module/unit, or by any action upon the module/unit” as distinguished from loss due to a lawsuit against the movant.   The court need not decide that question..  FN8. In context of section 3(e) of the conditions, covenants and terms document, indemnity covenant (4) arguably is limited to direct loss to the movant “caused by the module/unit, or by any action upon the module/unit” as distinguished from loss due to a lawsuit against the movant.   The court need not decide that question.

Cole–Chu, Leeland J., J.