2004 Ct. Sup. 7911, 37 CLR 146
No. CV00-0161711SConnecticut Superior Court, Judicial District of Waterbury at Waterbury
May 20, 2004
MEMORANDUM OF DECISION RE INTERVENING PLAINTIFF’S MOTION TO STRIKE
ALVORD, JUDGE.
In the underlying action, the plaintiff, Kari Bertrand-Miller, a bus driver, alleges, inter alia, that the defendants, Jay and Noel Wehry, a special education student and her father, were negligent in causing Noel Wehry to slip and fall on the plaintiff while Noel was entering the bus. The incident happened on December 14, 1998, the lawsuit was filed on September 28, 2000, and on or about November 13, 2000 the plaintiff’s employer, Laidlaw Transportation, Inc. intervened as a third-party plaintiff seeking to recover from the defendants the amount that it has paid or may become obligated to pay the plaintiff under the Connecticut Workers’ Compensation Act.[1] The defendants filed a counterclaim against the intervening plaintiff on February 14, 2003 seeking indemnification. In the counterclaim, the defendants allege that they are entitled to indemnification because the intervening plaintiff’s active/primary negligence in, inter alia, training, instructing and supervising its employees caused the plaintiff bus driver’s injury.
Previous to, and again on April 12, 2004, the intervening plaintiff filed a motion to strike the defendants’ counterclaim, accompanied by a memorandum in support. The Defendants filed a memorandum in opposition. On May 17, 2004, the court heard oral argument.
The intervening plaintiff moves to strike the defendants’ counterclaim for indemnification on the grounds that the requirement of an independent legal duty between the parties (in this case, the student passenger on the school bus and the bus company), “has been interpreted as meaning that, at the least, there must be evidence of either an express or implied contractual relationship between the intervening plaintiff employer Laidlaw and the defendants Wehry . . .” In opposition, CT Page 7912 the defendants argue that the Workers’ Compensation Act does not bar an indemnification action that is predicated upon an independent legal relationship between a third party and an employer. The defendants contend that they have alleged sufficient facts to establish the existence of an independent legal duty between themselves and the intervening plaintiff. They argue that this duty is premised upon the statutory standard of care applicable to owners and operators of school buses,[2]
which is the standard of care applicable to common carriers. Therefore, the defendants conclude that they are permitted to pursue a claim for indemnity.
THE LAW
“A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.” Fairfield Lease Corp. v. Romano’s Auto Service, 4 Conn. App. 495, 496, 495 A.2d 286 (1985). “It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). The court “must construe the facts alleged in the counterclaim in a light most favorable to the pleader . . . This includes the facts necessarily implied and fairly provable under the allegations . . . It does not include, however, the legal conclusions or opinions stated in the [counterclaim].” (Internal quotation marks omitted.) Noble v. Marshall, 23 Conn. App. 227, 229, 579 A.2d 594 (1990).
“In an action for indemnity . . . one tortfeasor seeks to impose total liability upon another . . . [I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . .” McAuley v. Frederick, 33 Conn. L. Rptr. 622, 2003 Ct. Sup. 350, White, J., citin Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697-98 n. 3, 694 A.2d 788 (1997). Thus, in order to maintain a common-law action for indemnity in the context of a tort action, the defendants must allege “(1) that the [intervening plaintiff] was negligent; (2) that [the intervening plaintiff’s negligence] rather than [the defendants’], was the direct, immediate cause of the accident and injuries; (3) that [the intervening plaintiff] was in control of the situation to the exclusion of [the defendants]; and (4) that [the defendants] did not know of such negligence, had no reason to anticipate it, and could reasonably CT Page 7913 rely on the [intervening plaintiff] not to be negligent.”McAuley at 351, citing Skuzinski at 698.
When, as in the present case, “the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer . . . [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause [of the Workers’ Compensation Act, General Statutes 31-284].[3] But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant’s express agreement to hold the third-party landlord harmless, or a bailee’s obligation indemnify a bailor, or a contractor’s obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a `primary’ wrongdoer impliedly promises to indemnify a `secondary’ wrongdoer, the great majority of jurisdictions disallow this claim.” (Internal quotation marks omitted.) Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989). Accordingly, “indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship.”Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 699; see also Donar v. King Associates, Inc., 67 Conn. App. 346, 350, 786 A.2d 1256 (2001). The duty must be an independent one, “not simply an active/passive negligence relationship,” which is inadequate to support indemnification. Ferryman v. Groton, supra, 144.
DECISION
In ruling on a motion to strike, the court must construe the facts alleged in a pleading (here the third-party complaint) in the manner most favorable to the pleader. “The question whether a party is primarily negligent and thereby liable for indemnification to another tortfeasor is ordinarily one for the trier of fact . . . and not appropriate for disposition by the Court on a motion to strike.” Atkinson v. Berloni, 580 A.2d 84, 23 Conn. App. 325 at 328 (1990). If the facts provable under the third-party complaint would support a cause of action, the motion to strike must fail. Ferryman v. City of Groton, supra, 212 Conn. at 142.[4]
CT Page 7914
“[A] common carrier of passengers for-hire has the duty to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur, in view of all the circumstances, and this high degree of care is required during the period of a passenger’s alighting as well as during transportation.” Parlato v. Connecticut Transit, 181 Conn. 66, 67, 434 A.2d 322 (1980); see also Roden v. Connecticut Co., 113 Conn. 408, 410, 155 A. 721 (1931).
In the present case, there is no disagreement that the standard of care, pursuant to statute, applicable to intervening plaintiff Laidlaw is as a common carrier. As a common carrier, Laidlaw owes a heightened duty of care to its passenger to maintain the premises where its passengers may be boarding or alighting in a reasonably safe condition. The moving party has not cited, and the court could not find, any Connecticut case law confirming their position that independent legal relationships adequate to support an indemnification claim in this context may only be based on express or implied contractual relationships, and not on statutory duty. Therefore, the court denies the intervening plaintiff’s motion to strike the defendants’ counterclaim.
ALVORD, J.
CT Page 7916