Ismael Alvarado v. Mitchell College et al. (2016)

RULING ON MOTION FOR SUMMARY JUDGMENT FILED BY THE THIRD–PARTY PLAINTIFF, MITCHELL COLLEGE (Doc. No. 164.00)

In the underlying dispute in this matter, since settled, the plaintiff, Ismael Alvarado, alleged that he was injured by a truck driven by Aurora Martinez while they were working together at Mitchell College.  The truck was owned by Mitchell College.  Martinez was operating it with the permission of Mitchell College.  Martinez, Mitchell College and Sodexho Operations, LLC were defendants.  Mitchell College filed a third-party complaint against Martinez's employer, Sodexho Operations, LLC, alleging that both Alvarado and Martinez were employees of Sodexho, that if Alvarado was injured as alleged, and if his injuries were the result of negligence which is specifically denied, then the injuries and damages were the results of the active negligence of Sodexho, and not caused by passive negligence, if any on the part of Mitchell College.  In Count Two of its third-party complaint, Mitchell alleged that Sodexho, in its management agreement with Mitchell College, promised to defend, indemnify and hold harmless Mitchell College in this type of case.  It alleged that, despite demand, Sodexho has failed to assume the defense and honor its other promises, causing damage to Mitchell College.  Mitchell College moved for summary judgment on its claims against Sodexho in Count Two of its third-party complaint.

In support of its motion, Mitchell College filed an affidavit by Dyann Baker, director of finance and administration at Mitchell, attaching the subject management agreement, wherein Mitchell College and Sodexho agreed to “․ defend, indemnify and hold each other harmless from and against all claims, liability, loss and expense, including reasonable costs, collection, expenses, attorneys fees, and court costs which may arise because of the sole negligence, misconduct or other fault of the indemnifying party, its agents or employees in performance of its obligations under the Agreement ․” and attesting that the accident and resulting injuries claimed by the plaintiff were the result of the sole negligence, misconduct or other fault of Sodexo's employee acting in the performance of its duties.  Sodexho filed no affidavit in opposition.  On the strength of Mitchell College's affidavit, the court earlier granted summary judgment in favor of Mitchell College finding that the material facts were not in dispute and that Mitchell College was entitled to judgment as a matter of law because Sodexo breached its duty to defend, indemnify and hold Mitchell College harmless in this case.  However, the court reserved decision on damages as Mitchell College had not supplied any proof of losses and expenses in its motion.  See previous Order on Doc. No. 164.00.

On reargument, Sodexho argues, persuasively, that the Baker affidavit should not have been considered dispositive because there was no indication that she had any personal knowledge of the underlying incident.  On further consideration, the court agrees with Sodexho.  There is nothing in the affidavit indicating that Baker was present and observed the critical events in this case, casting doubt on admissibility of her rather conclusory assertions that, “[t]he accident and resulting injuries claimed by the plaintiff were the result of the sole negligence, misconduct or other fault of the [employees of Sodexo] in the performance of its obligations under the Management Agreement” and that “[t]he accident and resulting injuries claimed by the plaintiff did not result from any negligence, misconduct or other fault of the third-party plaintiff.”  Affidavit, paras. 7 and 8. Nor do any of the other materials supplied by Mitchell College, with its motion for summary judgment, contain information from any witnesses with personal knowledge to the accident.  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents ․ be made under oath or be otherwise reliable.”  (Citation omitted;  internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 233 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).  Thus, this critical issue remains in dispute.  No other materials supplied by Mitchell College remove from bona fide dispute the issue of whether Sodexho's employees committed an act of sole negligence, misconduct or other fault triggering the duties to defend, indemnify and hold harmless in the management agreement.  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.  The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.  The courts hold the movant to a strict standard.  To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.”  (Citations omitted;  internal quotation marks omitted.)  Rockwell v. Quintner, supra, 96 Conn.App. 227.  Mitchell College did not meet its burden.  In such a circumstance, summary judgment should have been denied.  Particularly in light of the factual disputes regarding whether the participants were agents of both Mitchell College and Sodexho, and other factual issues, it would be improper and unjust to require Sodexho to bear the entire cost of defense on an ongoing basis before resolution of the factual issues which call into question, inter alia, the applicability of the contract clause under the allegations of the underlying complaint in the instant case.  Accord, Pray v. Crystal Mall, LLC, Superior Court, judicial district of New London, Doc. No. CV 07–5002405 (December 10, 2009, Peck, J.) [49 Conn. L. Rptr. 16].

Having resolved the motion on this ground, it is unnecessary to address the other, alternative grounds raised by the third-party defendant.

For all of the foregoing reasons, the court finds that the material facts are in dispute.  Therefore, the third-party plaintiff's motion for summary judgment (Doc. No. 164.00) must be denied.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.