8855; 8856 | Conn. App. Ct. | Sep 25, 1990
This is a consolidated appeal of two civil cases arising from a collision between a motorcy
Berloni subsequently filed a cross complaint against Clark seeking indemnification. Clark successfully moved to strike the cross complaint on the ground that Berloni had failed to state a legally sufficient cause of action for indemnification. From the judgment rendered on the cross complaint, Berloni has appealed. The sole issue on appeal is whether the allegations of Berloni’s cross complaint state a cause of action for indemnification.
Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable. Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405" court="Conn." date_filed="1965-02-25" href="https://app.midpage.ai/document/kaplan-v-merberg-wrecking-corporation-2402674?utm_source=webapp" opinion_id="2402674">152 Conn. 405, 412, 207 A.2d 732 (1965). Ordinarily, there is no right of indemnity between joint tortfeasors. Ferryman v. Groton, 212 Conn. 138" court="Conn." date_filed="1989-07-18" href="https://app.midpage.ai/document/ferryman-v-city-of-groton-7840970?utm_source=webapp" opinion_id="7840970">212 Conn. 138, 142, 561 A.2d 432 (1989); Kaplan v. Merberg Wrecking Corporation, supra. Exceptions to this general rule exist, however, where the primarily liable tortfeasor owes an independent legal duty to the secondarily liable tortfeasor. See Ferryman v. Groton, supra, 144; Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539" court="Conn." date_filed="1954-08-03" href="https://app.midpage.ai/document/farm-bureau-mutual-automobile-insurance-v-kohn-bros-tobacco-co-6588628?utm_source=webapp" opinion_id="6588628">141 Conn. 539, 544,107 A.2d 406 (1954). In order to establish that a party was primarily negligent and, thus, liable to indemnify a secondarily negligent tortfeasor, the following essential elements must be proved: “(1) the
Implicit in indemnification cases is the requirement of an independent legal relationship between the indemnitor and the indemnitee giving rise to a special duty. Some Connecticut cases have expressly required such a relationship. Ferryman v. Groton, supra; Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., supra; Maccarone v. Hawley, 7 Conn. App. 19" court="Conn. App. Ct." date_filed="1986-04-15" href="https://app.midpage.ai/document/maccarone-v-hawley-7851914?utm_source=webapp" opinion_id="7851914">7 Conn. App. 19, 507 A.2d 506 (1986). In each of these cases, the alleged indemnitor was the employer of the plaintiff, and the issue was whether the employer owed an independent legal duty to the defendant sufficient to overcome the exclusive remedy clause of the Workers’ Compensation Act. In Ferryman, the Supreme Court found that the requisite independent relationship arose from the parties’ joint ownership of the property on which the plaintiff was injured, and allowed a claim for indemnification to survive a motion to strike. Ferryman v. Groton, supra, 145-46. In Maccarone, this court found that an independent legal relationship between the parties to a third party complaint arose from an express contract and allowed the claim for indemnification based on the contract to withstand a motion to strike. Maccarone v. Hawley, supra, 23-24. The court in Farm Bureau found a legal duty stemming from a lease contract for a motor vehicle between the third party plaintiff’s insured and the employer of the original, injured plaintiff. Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., supra.
A motion to strike tests the legal sufficiency of a pleading. Practice Book § 152; Ferryman v. Groton, supra, 142. In ruling on a motion to strike, the court must construe the facts alleged in a pleading in the manner most favorable to the pleader. Rowe v. Godou, 209 Conn. 273" court="Conn." date_filed="1988-12-06" href="https://app.midpage.ai/document/rowe-v-godou-7840606?utm_source=webapp" opinion_id="7840606">209 Conn. 273, 278, 550 A.2d 1073 (1988). The question whether a party is primarily negligent and thereby liable for indemnification to another tortfeasor is ordinarily one for the trier of fact; Weintraub v. Richard Dahn, Inc., supra, 573-74; and not appropriate for disposition by the court on a motion to strike. We review Berloni’s cross complaint, therefore, to determine whether he could have proven, on the basis of its allegations, that he was entitled to indemnification from Clark.
The cross complaint alleges, albeit in a conclusory fashion, each of the essential elements of indemnification. We can discern, however, neither a preexisting
In the present case, Berloni argues that Clark undertook to direct traffic, thus assuming a duty to assure that her direction was safe and accurate. He relies on Weintraub v. RichardDahn, Inc., supra, to support his argument that he is entitled to pursue a claim of indemnification against Clark.
Berloni’s reliance on Weintraub is misplaced. In Weintraub, the plaintiffs alleged that their property was damaged when a subcontractor’s employee negligently backed up a truck delivering materials to the building site. The subcontractor filed a third party claim for indemnification against the general contractor, alleging that its employee was following the negligent direction of the general contractor’s employees when the accident occurred. Affirming the judgment for indemnification in favor of the subcontractor, the Supreme Court noted that “the relationship of suppliers and subcontractors to the general contractor on a construction project has frequently been the setting in which questions of ultimate liability for employee actions arise.” Id., 574.
It is true that indemnity is sometimes granted when one tortfeasor acts pursuant to the directions of another tortfeasor, reasonably believing the directions to be lawful. Restatement (Second), Torts § 886B. The primary application of this principle, however, is where an agent follows the direction of a principal. Id., comment f; see also Higgins v. Russo, 72 Conn. 238, 43 A. 1050 (1899) (sheriff entitled to indemnity from attorney who negligently directed him to attach goods pursuant to a writ of attachment).
We conclude, therefore, that the trial court correctly granted Clark’s motion to strike Berloni’s cross complaint because of the absence of an independent legal relationship between the parties giving rise to a clearly identifiable legal duty owed by Clark to Berloni.
The judgment is affirmed.