ANTHONY MARIANO ET AL. v. THE HARTLAND BUILDING AND RESTORATION COMPANY ET AL.
(AC 37710)
DiPentima, C. J., and Mullins and Flynn, Js.
Argued April 13-officially released October 11, 2016
(
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. In no event will any such motions be accepted before the “officially released” date.
All oрinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appeаrs on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Christopher A. Klepps, with whom was Donald W. Doeg, for the appellant (apportionment defendant Close, Jensen and Miller, P.C.).
Opinion
DIPENTIMA, C. J. The apportionment defendant Close, Jensen and Miller, P.C. (Close), appeals from the summary judgment rendered in favor of the intervening plaintiff, Brunalli Construction Company (Brunalli), on Close‘s counterclaim.1 On appeal, Close claims that the trial court erred in (1) concluding that Brunalli carried its initial burden of proving the nonexistence of any genuine issue of material fact and (2) determining that the affidavit submitted by Close in support of its opposition to Brunalli‘s motion for summary judgment failed to demonstrate the existence of an issue of material fact. We agree with the first claim of Close and therefore reverse the judgment of the trial court.2
The record beforе the court, viewed in the light most favorable to Close as the nonmoving party, reveals the following facts and procedural history. The underlying action arose from the June 15, 2010 collapse of the Salem Bridge in Naugatuck, which occurred as work was underway to demolish the bridge. At the time of the incident, Anthony Mariano (Anthony) was employed by Brunalli, which had entered into a contract with the state to serve as the general contractor on the project to demolish the Salem Bridge (prime contract). Nearly a year after the collapse, in July, 2011, the plaintiffs, Anthony and Shirley Mariano (Marianos), initiated an action against the defendants The Hartland Building & Restoration Company (Hartland) and Witch Enterprises, Inc., both of which were Brunalli‘s subcontractors, alleging that Anthony had sustained personal injuries as a result of the collapse. Shortly after commencing this action, Brunalli filed an intervening complaint, pursuant to
On May 10, 2012, Close filed a counterclaim against Brunalli. Relevant to this appeal, Close alleged that, pursuant to “its agreement” with the state, it reviewed the demolition plan and a temporary support plan that Brunalli submitted to the state. According to Close, Brunalli and/or its subcontractors negligently performed their work in connection with the demolition of the Salem Bridge. Close also alleged that Brunalli, by “failing to adhere to the . . . demolition plan and/or the . . . temporary
On August 30, 2012, Brunalli filed its answer and special defense to Close‘s counterclaim. Pertinent to this appeal, Brunalli denied any negligence and claimed that Close‘s counterclaim was barred by
On May 24, 2013, Brunalli filed a motion for summary judgment on Close‘s counterclaim for indemnification. It argued that Close‘s counterclaim failed, as a matter of law, because no independent legal duty existed between Brunalli and Close. In support of the motion for summary judgment, Brunalli attached an affidavit from James Needham, vice president for Brunalli. Needham averred that Brunalli and Close “never entered into a written agreement” concerning the Salem Bridge project. Thus, in its memorandum of law in support of its motion for summary judgment, Brunalli argued that Close‘s allegations in its counterclaim had “fail[ed] to establish the independent legal duty necessary to overcome the exclusivity provision of the [act].”
Approximately six weeks later, on July 8, 2013, pursuant to
On July 10, 2013, Close filed its objection to Brunalli‘s motion for summary judgment, claiming that Brunalli had failed to establish that there were no genuine issues of material fact as to whether Close‘s amended counterclaim was barred by the exclusivity provision of the act.7 It argued that “Brunalli‘s motion for summary judgment ignore[d] the parties’ contractual relationships, which create[d], at least, а question of fact as to whether an independent legal duty existed between [Close] and Brunalli.” Specifically, Close directed the court‘s attention to the amended counterclaim, in which Close alleged that “it [was] the third party beneficiary of the prime contract‘s indemnification provision by virtue of an agency relationship created by the consulting agreement.” According to Close, because the term “agent” in the subject indemnity provision was undefined, and Close and the state “understood” that Close was an agent of the state, “whether [Close was] a third party beneficiary оf the prime contract by virtue of an agency relationship with the state [was], at least, a question of material fact that a jury must determine.”
In support of its objection to Brunalli‘s motion for summary judgment, Close appended an affidavit from Thomas M. Ryan, its director of engineering. Ryan averred that he not only had personal knowledge of the consulting agreement between Close and the state, but also that he had personal knowledge of the work Close performed, pursuant to the consulting agreement, in connection with the Salem Bridge project. He also averred that “[d]uring the сourse of [the] contractual relationship with the [s]tate, [Close] was understood by both the [s]tate and [Close] to be the [s]tate‘s agent.” Close did not provide any other affidavits and did not submit certified copies of the consulting agreement referred to in Ryan‘s affidavit or the prime contract.
The dispоsitive issue in this appeal is whether Brunalli‘s motion for summary judgment adequately demonstrated that there were no genuine issues of material fact, specifically as to Close‘s allegation in its amended counterclaim that it was an agent of the state and, thus, a third party beneficiary of the prime contract‘s indemnification provision. Close argues that Brunalli, as the moving party, failed to meet its threshold burden because Needham‘s affidavit averring that Close and Brunalli have never entered into a contractual relationship was “not dispositive as to whether Brunalli owed [Close] an indеpendent legal duty to indemnify.” Close does not dispute Needham‘s assertion. Rather, Close contends that the court improperly granted Brunalli‘s motion for summary judgment because Brunalli failed to submit any evidence countering Close‘s allegations that (1) it was an agent of the state, (2) pursuant to the prime contract, Brunalli was duty bound to perform its work with due care, and (3) Close was a third party beneficiary of the prime contract.
Brunalli counters that “even as framed in [Close‘s] amended counterclaim,” its motion for summary judgment “made the required showing that there [was] no genuine issue of material fact that it did not have an independent legal duty to indemnify [Close]; therefore, [Close‘s] claims were barred by the exclusivity provision of the [act] . . . .” Furthermore, Brunalli argues that the lack of an independent legal duty negated Close‘s allegation that Brunalli “had an obligation to indemnify [Close] based upon a duty to perform its work with due care.” After reviewing the record, we conclude that Brunalli failed to demonstrate that there was no genuine issue of material fact because it submitted no evidence addressing Close‘s allegation in its amended counterclaim that it was an agent of the state and, therefore, it was a third party beneficiary of the prime contract‘s indemnification provision.
We set forth our well established standard of review on appeal following a trial court‘s granting of a motion for summary judgment.
“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . Our review of the decision to grant a motion for summary judgment is plenary. . . . We therefore must decide whether the court‘s conclusions were legally and logically correct and find support in the record.” (Internal quotatiоn marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn. App. 618, 624-25, 57 A.3d 391 (2012).
The following relevant legal principles guide our analysis. “It is frequently stated in Connecticut‘s case law that, pursuant to
“An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint. . . . It necessarily follows that it is only [o]nce [the] defendant‘s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.” (Citation omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Id., 625-27.
In this appeal, Brunalli had the initial burden of showing the absence of any genuine issue of material fact raised by Close‘s amended counterclaim under applicable principles of workers’ compensation law, entitling it to judgment as a matter of law. It is undisputed that the exclusivity provision of the act,
In Ferryman, our Supreme Court stated that “[w]hen the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [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 thе operation of the exclusive-remedy clause. 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 to indemnify a bailor, or a contractor‘s obligation to perform his work with due care; but when the indemnity claim rests upоn the theory that a primary wrongdoer impliedly promises to indemnify a secondary wrongdoer, the great majority of jurisdictions disallow this claim. 2A A. Larson, [Workmen‘s Compensation Law] § 76.” (Emphasis added; footnote in original; internal quotation marks omitted.) Id., 144-45. Thus, for Brunalli to have an obligation to indemnify Close, it must be clear that Brunalli either breached an independent duty it owed to Close through an express agreement, or that there is a basis to find an implied promise of indemnity, and that this obligation arose “from a separate contractual relation.” (Internal quotation marks omitted.) Id., 144.8
In its amended counterclaim, Close alleged that Brunalli had a contractual agreement with the state, which incorporated by reference the standard specifications. Close also alleged that the specifications obligated Brunalli to “indemnify and save harmless” agents of the state. Moreover, Close alleged that it had entered into a consulting agreement with the state in 2008, which also incorporated by reference the standard specifications, and that that agreement created an agency relationship between the state and Close. Thus, as alleged in the amеnded counterclaim, because Close was an agent of the state, it was entitled “to the indemnification provisions of the prime contract as an intended third party beneficiary . . . .”
With its motion for summary judgment, Brunalli submitted no evidence that addressed Close‘s factual allegation that it was an agent of the state and that it was a third party beneficiary of the prime contract‘s indemnification provision. To be sure, Brunalli and Close had not entered into a contractual relationship, as the appended affidavit avers. Close did not dispute this assertion. Rather, Close contended that, in essence, an implied promise of indemnity flowed from the prime contract to it because it was an agent of the state and entitled to indemnification. Brunalli, however, did not demonstrate in its motion for summary judgment and accompanying evidence that there was no issue of material fact that Close was not an agent of the state and was not a third party beneficiary of the prime contract‘s indemnification provision. Indeed, the affidavit supporting Brunalli‘s motion for summary judgment
“A party seeking summary judgment has the considerable burden of demonstrating the absence of any genuine issue of material fact because litigants ordinarily have a constitutional right to have issues of faсt decided by a [trier of fact] . . . .” (Internal quotation marks omitted.) Midland Funding, LLC v. Mitchell-James, 163 Conn. App. 648, 654, 137 A.3d 1 (2016). In the present case, the court did not hold Brunalli to the strict standard of “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.” (Internal quotation marks omitted.) D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Rather, the court focused on the fact that no contractual relationship existed between Brunalli and Close and did not address how Brunalli‘s motion for summary judgment and accompanying affidavit negated Close‘s claim in its amended counterclaim that it was an agent of the state and entitled to indemnifiсation.
Also, even if we assume, without deciding, that the court was correct in concluding that Ryan‘s assertions in his affidavit were conclusory and without an evidentiary basis because Close did not submit the consulting agreement, the court, nevertheless, improperly granted summary judgment. See Mott v. Wal-Mart Stores East, LP, supra, 139 Conn. App. 626 (“only [o]nce [the] defendant‘s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial“). In failing to negate Close‘s claim, as framed in its amended counterclaim, that it was an agent of the state and that it was a third party beneficiary of the prime contract‘s indеmnification provision, Brunalli failed to meet its burden of establishing the absence of a genuine issue of material fact. See id., 628 (“[t]o prevail on a motion for summary judgment . . . the [counterclaim] defendant had an obligation to negate the factual claims as framed by the [amended counterclaim]“).9 Thus, we conclude that the court erred in concluding that Brunalli was entitled to summary judgment as a matter of law.
In this opinion the other judges concurred.