I FACTS
The following facts are indidputed. First, Leach Building Company (Leach and/or the insured and/or the subrogor), was the general contractor for construction work being done at Yale University Law School (the law school).
Second, the plaintiff, Maryland Casualty Company (Maryland Casualty and/or the insurer and/or the subrogee), provided a general commercial liability insurance policy to Leach which covered this job at the law school; this policy was in effect at all times relevant thereto.
Third, Leach hired the defendant, Enterprise Plumbing and Heating, Inc. (Enterprise and/or the subcontractor), as a subcontractor to do the plumbing and heating installation.
Fourth, The Trane Company (Trane) furnished the fan coil units to be installed by Enterprise; these units were defective.
Fifth, Maryland Casualty paid Leach, under its policy, $229,739.50, the cost to repair and/or replace the units.
Sixth, Maryland Casualty, claiming to have been subrogated to the rights of Leach against those entities claimed to be responsible for the damages it paid to Leach, instituted this action against those claimed to be responsible or liable for the aforementioned damages including, inter alia, Enterprise and Trane.
Seventh, and finally, Enterprise has brought this motion for summary judgment on count two (product liability as a product seller), count three (breach of contract with Leach) and count four (agreement to indemnify Leach), claiming that Leach agreed in writing to waive its subrogation rights against Enterprise and that Maryland Casualty is bound by that waiver. Maryland Casualty and Enterprise filed briefs, and a hearing was held before this court on June 14, 1999. Maryland Casualty had not furnished a copy of its policy with Leach by that date. It was subsequently submitted with the brief and Enterprise has responded with a reply brief.
II STANDARD OF REVIEW
"A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.)
Burns v. Hartford Hospital,192 Conn. 451" court="Conn." date_filed="1984-03-13" href="https://app.midpage.ai/document/burns-v-hartford-hospital-7838882?utm_source=webapp" opinion_id="7838882">192 Conn. 451,
455,
472 A.2d 1257" court="Conn." date_filed="1984-03-13" href="https://app.midpage.ai/document/burns-v-hartford-hospital-7838882?utm_source=webapp" opinion_id="7838882">472 A.2d 1257 (1984);
Bartha v. WaterburyHouse Wrecking Co., 190 Conn. 8" court="Conn." date_filed="1983-05-03" href="https://app.midpage.ai/document/bartha-v-waterbury-house-wrecking-co-1472922?utm_source=webapp" opinion_id="1472922">190 Conn. 8,
11,
459 A.2d 115" court="Conn." date_filed="1983-05-03" href="https://app.midpage.ai/document/bartha-v-waterbury-house-wrecking-co-1472922?utm_source=webapp" opinion_id="1472922">459 A.2d 115
(1983).
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248" court="Conn." date_filed="1971-06-02" href="https://app.midpage.ai/document/dougherty-v-graham-1953910?utm_source=webapp" opinion_id="1953910">161 Conn. 248, 250,287 A.2d 382" court="Conn." date_filed="1971-06-02" href="https://app.midpage.ai/document/dougherty-v-graham-1953910?utm_source=webapp" opinion_id="1953910">287 A.2d 382 (1971). To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact. Plouffe v. New York,N.H. H.R. Co., 160 Conn. 482" court="Conn." date_filed="1971-03-03" href="https://app.midpage.ai/document/plouffe-v-new-york-new-haven--hartford-railroad-2084187?utm_source=webapp" opinion_id="2084187">160 Conn. 482, 488, 280 A.2d 359" court="Conn." date_filed="1971-03-03" href="https://app.midpage.ai/document/plouffe-v-new-york-new-haven--hartford-railroad-2084187?utm_source=webapp" opinion_id="2084187">280 A.2d 359
(1971). The test has been said as one "[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Cummings Lockwoodv. Gray, 26 Conn. App. 293" court="Conn. App. Ct." date_filed="1991-12-24" href="https://app.midpage.ai/document/cummings--lockwood-v-gray-7854407?utm_source=webapp" opinion_id="7854407">26 Conn. App. 293, 296-97, 600 A.2d 1040" court="Conn. App. Ct." date_filed="1991-12-24" href="https://app.midpage.ai/document/cummings--lockwood-v-gray-7854407?utm_source=webapp" opinion_id="7854407">600 A.2d 1040
(1991).
III ISSUES
The first issue is the interpretation of the terms of the contract between Leach and Enterprise. It is well settled law that "[i]t is the function of the court to construe the provisions of the contract of insurance." (Internal quotation marks omitted.)
O'Brien v. UnitedStates Fidelity Guaranty Co., 235 Conn. 837" court="Conn." date_filed="1996-01-30" href="https://app.midpage.ai/document/obrien-v-united-states-fidelity--guaranty-co-7843988?utm_source=webapp" opinion_id="7843988">235 Conn. 837,
842,
669 A.2d 1221" court="Conn." date_filed="1996-01-30" href="https://app.midpage.ai/document/obrien-v-united-states-fidelity--guaranty-co-7843988?utm_source=webapp" opinion_id="7843988">669 A.2d 1221 (1996). "The `[i]nterpretation of an insurance policy, like the
interpretation of other written contracts,
involves a determination of the intent of the parties as expressed by the language of the policy.'" (Emphasis added.)
Springdale Donuts, Inc. v. AetnaCasualty Surety Co. of Illinois, 247 Conn. 801" court="Conn." date_filed="1999-03-02" href="https://app.midpage.ai/document/springdale-donuts-inc-v-aetna-casualty--surety-co-7845842?utm_source=webapp" opinion_id="7845842">247 Conn. 801,
805,
724 A.2d 1117" court="Conn." date_filed="1999-03-02" href="https://app.midpage.ai/document/springdale-donuts-inc-v-aetna-casualty--surety-co-7845842?utm_source=webapp" opinion_id="7845842">724 A.2d 1117 (1999). "Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law."
Thompson Peck, Inc. v. Harbor MarineContracting Corp., 203 Conn. 123" court="Conn." date_filed="1987-04-14" href="https://app.midpage.ai/document/thompson--peck-inc-v-harbor-marine-contracting-corp-7839981?utm_source=webapp" opinion_id="7839981">203 Conn. 123,
131,
523 A.2d 1266" court="Conn." date_filed="1987-04-14" href="https://app.midpage.ai/document/thompson--peck-inc-v-harbor-marine-contracting-corp-7839981?utm_source=webapp" opinion_id="7839981">523 A.2d 1266
(1987). This court finds that the intent of the parties
as expressed by the language of the contract between Leach and Enterprise is clear and unambiguous. There is, therefore, no genuine issue of material fact, and the question, then, is whether Enterprise is entitled to judgment as a matter of law on the complaint.
The second issue is the validity of Leach's waiver of its subrogation rights. Paragraph 21 of the contract between Leach and Enterprise states in pertinent part: "Waiver of Subrogation Contractor and Subcontractorwaive all rights they may have against one another for damages covered by property insurance, workers compensation, commercial general liability and automobile insurance. Subcontractor waives all rights it may have against owner for damages covered by property insurance. Subcontractor shall, and shall cause its Vendors, Suppliers and Sub-subcontractors to, waive all rights they may have against Contractor and/or each other for damages caused by fire or other perils covered by insurance, except the rights to proceeds." (Emphasis added.)
The plaintiff claims that paragraphs 20 and 9(b) somehow amend or dilute paragraph 21. Paragraph 9 (b) sets forth obligations of the subcontractor, Enterprise, to the contractor, Leach, and has nothing to do with subrogation. Paragraph 20 provides for indemnification by the subcontractor to the contractor and also does not include any provision regarding subrogation. The plaintiff also claims that the words in paragraph 20(c) are applicable and that paragraph states in pertinent part:
"The Subcontractor shall carry at his own expense Workers Compensation and Employer's Liability, Comprehensive General Liability, Automobile Liability, and Excess (Umbrella) Liability Insurance with limits of not less than those set forth:
Limits of Liability _________________________Type Of Insurance Each Occurrence Aggregate
(1) *WORKERS COMPENSATION Statutory Statutory and EMPLOYER'S LIABILITY $500,000 Not Applicable