Valerie St. Marie v. LLC (2015)

Memorandum of Decision Re Motion for Summary Judgment On Third Party Complaint

The Plaintiff, Valerie St. Marie (hereinafter “plaintiff”) originated this case on January 14, 2013 by bringing suit against the defendants Round Hill Landscaping, LLC (hereinafter “Round Hill”) and Centerbrook Plaza LLC (hereinafter “Centerbrook”).  Centerbrook owns an office park at 57–61 Main Street, in Centerbrook, Ct. Round Hill performs snow removal services at the office park for Centerbrook.

The plaintiff stated in her complaint that on January 17, 2011, she was an employee of Family Practice Associates, which had an office within the park.  She claimed that on that day, she was walking within the park to the outdoor mail box area adjacent to the parking lot when she slipped and fell on the snowy and icy surface of the area around the mailboxes.  She sought damages for her resulting injuries from Round Hill for its negligence in failing to reasonably clear snow and ice.  She also asked for damages from Centerbrook for its negligence in failing to keep the mailbox area free of snow and ice, to warn the plaintiff of the dangerous conditions, and to repair a leaking gutter which contributed to the icy condition.

On January 29, 2015, Centerbrook moved to add the Visiting Nurses Association of Southeastern Connecticut (hereinafter “VNA”) as a third party defendant.  In its motion, Centerbrook stated that during a deposition of the plaintiff, it became apparent that the fall occurred in an area “proximate to a certain building” in the office park owned by the VNA. Centerbrook further pled that the air space lease between it and the VNA, required the VNA to purchase and maintain “Comprehensive general liability insurance against claims for bodily injury, death or property damage of destruction occurring on the Demised Premises and on, in or about the adjoining streets, property and passageways.”  As a result of this lease requirement, Centerbrook claimed that the VNA was obligated to provide a defense for and indemnification of Centerbrook.

The VNA has now filed a Motion for Summary Judgment, seeking to have Centerbrook's third party complaint dismissed.  In its motion as supported by the affidavit attached to it, VNA states that the plaintiff fell near a grouping of mail boxes located in a common area of the park, that Centerbrook had the responsibility of monitoring and maintaining the common area, to keep it free of snow and ice, and that the air space lease between Centerbrook as landlord and the VNA as air space tenant did not require indemnification.

Centerbrook does not contest the facts alleged by the VNA but does challenge VNA's interpretation of the language of the lease.  It contends in its Objection to Motion for Summary Judgment that the requirement that VNA provide comprehensive general liability coverage for not just its own building but also for “adjoining streets, property and passageways” constituted a contractual obligation “․ for VNA to be the sole party providing liability insurance for all the areas encompassed by such language such that the Landlord would not have to procure the same.  Indeed, the Lease clause specifically provides that said insurance shall be provided ‘in the name of and for the mutual benefit of the Landlord.’ “

Summary judgment is appropriate only when it is the sole conclusion a fair and reasonable person could make based on the evidence.  Dagan v. Mobile Medical Testing Services Inc., 265 Conn. 791 (2003).  In reaching its decision, the court reviews the evidence in the light most favorable to the non-moving party.  Patel v. Flexo Concrete USA, Inc., 309 Conn. 52, 57 (2013).  In this case, there appears to be no dispute regarding the relevant facts:  the plaintiff fell and was injured in a common area of the park, due to alleged negligence in maintaining the common area.  The issue, then, is purely a matter of law:  whether the insurance clause in the lease mandates that the VNA defend and hold harmless Centerbrook from any damages claimed by the plaintiff?

“ ‘[I]ndemnity involves a claim for reimbursement in full from one on whom primary liability is claimed to rest ․’ Crotta v. Home Depot, Inc., 249 Conn. 634, 641, 732 A.2d 767 (1999).  A party may bring an indemnification claim based on the terms of an indemnity agreement.'  24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 306, 685 A.2d 305 (1996) ‘[A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself.’  ․ Morel v. Unicco Service Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 307697 (December 6, 1995) (Maiocco, J.)” Kroll v. The Stop and Shop Companies, Inc., 2001 WL 837703, Sup.Ct. of Conn, July 3, 2001.

In this case, Centerbrook bases its indemnification claim on paragraph 12 of the lease, which reads:

“12. Insurance. The Tenant, at its own cost and expense, in the name of and for the mutual benefit of the Landlord and Tenant and any mortgagees of the Demised Premises, shall maintain each of the following:  (i) Comprehensive general liability insurance against claims for bodily injury, death or property damage or destruction occurring on the Demised Premises and on, in or about the adjoining streets, property and passageways, with minimum limits during the term of this Lease of not less than Three Million Dollars ($3,000,000.00) per occurrence in respect of bodily injury or death to any one person, and of not less than One Million Dollars ($1,000,000.00) per occurrence for property damage;  and (ii) Workers' compensation coverage for Tenant's own employees.”

“All insurance required to be maintained by the Tenant shall be provided by valid and enforceable policies issued by insurers duly licensed to provide such coverage in the State of Connecticut and of a financial responsibility satisfactory to the Landlord.  Upon the effective date of this Lease, and thereafter not less than seven (7) days prior to the expiration dates of the expiring policies theretofore furnished pursuant to this provision, certificates for such insurance bearing notations evidencing the payment of premiums or accompanied by other evidence satisfactory to the Landlord of such payments, shall be delivered by the Tenant to the Landlord.”

The above paragraph must be interpreted in accordance with the following admonitions:

“ ‘The law does not favor contract provisions which relieve a person from his own negligence ․ Such provisions, however, have been upheld under proper circumstances.’  ․ B & D Associates, Inc. v. Russell, 73 Conn.App. 66, 72, 807 A.2d 1001 (2002).  An intention to indemnify one against his own negligence must be expressed in clear and unequivocal language.'  ․ Burkle v. Car & Truck Leasing Co., 1 Conn.App. 54, 56, 467 A.2d 1255 (1983)” Crisccuolo v. Town of East Haven, 2011 WL 6270734 Conn.Sup.Ct., id.  New Haven, Nov. 17, 2011.

In Ornberg v. NLVH, LLC, 2015 WL 1003014, Conn.Sup.Ct. id., New London, February 13, 2015, the tenant sought indemnification from the landlord, citing the terms of the lease requiring both the tenant and landlord to insure the premises.  The court found in that case the tenant maintained possession and control of the parking area where the plaintiff had slipped and fallen, and that the only indicia of the landlord's responsibility for the parking area, other than ownership of title, was the lease provision requiring both the tenant and landlord to secure insurance.  The court held that the mere existence of a lease provision requiring both landlord and tenant to insure the premises did not, standing on its own, create a duty to indemnify.  See also Fernando v. Estate of Fred Ayers, 56 Conn.App. 332, 742 A.2d 836 (2000).  As noted in the VNA's reply brief, Centerbrook has cited no case law to support that the requirement in the lease for mutual insurance in and of itself mandates indemnification.

There are legitimate reasons—other than securing indemnification—that Centerbrook would want the VNA to maintain its own policy of insurance.  In the event of any suit involving both the landlord and tenant as defendants, the landlord would want to be sure that the tenant has a policy assuring payment by tenant for its cost of defense and if need be, payment of tenant's share of any damages.  However, a requirement for such coverage in the lease by itself does not create or constitute an agreement by the tenant to indemnify the landlord, particularly when there is no evidence that the tenant had any possession or control of the common area where the fall occurred.

The VNA's Motion for Summary Judgment is granted.

Bates, J.

Bates, Timothy, J.