Atkinson v. Berloni, s. 8855

• Decision Date: 25 September 1990
• Docket Number: Nos. 8855,8856,s. 8855
• Citation: 23 Conn.App. 325,580 A.2d 84
• Court: Connecticut Court of Appeals
• Parties: Edward ATKINSON v. Albert BERLONI et al. Deborah SAMS v. Albert BERLONI et al.

Page 84

580 A.2d 84

23 Conn.App. 325

Edward ATKINSON v. Albert BERLONI et al.

Deborah SAMS v. Albert BERLONI et al.

Nos. 8855, 8856.

Appellate Court of Connecticut.

Argued June 12, 1990.

Decided Sept. 25, 1990.

Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, Trumbull, for appellant (named defendant).

Beverly Johns, Hartford, for appellee (defendant Irene Clark).

Before DUPONT, C.J., and DALY and EDWARD Y. O'CONNELL, JJ.

DUPONT, Chief Judge.

This is a consolidated appeal of two civil cases arising from a collision between a motorcyccle and a car. The plaintiffs, the driver and passenger of the motorcycle, collided with the car driven by the defendant Albert Berloni. The plaintiffs claim that the accident was caused by the negligence of Berloni and of a second defendant, Irene Clark. They allege that Clark, the operator of another car traveling in the same direction as the motorcycle, negligently signaled to Berloni, who was traveling in the opposite direction, that he could take a left turn in front of her vehicle and the motorcycle. They also allege that Berloni negligently made the left turn, thus causing the accident.

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, 412, 207 A.2d 732 (1965). Ordinarily, there is no right of indemnity between joint tortfeasors. Ferryman v. City of Groton, 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, 212 Conn. at 144, 561 A.2d 432; Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 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 party must have been negligent; (2) its negligence rather than another's was the direct and immediate cause of injury; (3) it had exclusive control over the situation; and (4) the negligent party seeking indemnification did not know of the charged party's negligence, had no reason to anticipate it and could reasonably have relied on the charged party to act without negligence." Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452 A.2d 117 (1982).

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, 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, 212 Conn. at 145-46, 561 A.2d 432. 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, 7 Conn.App. at 23-24, 507 A.2d 506. 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.

While most Connecticut indemnification cases do not expressly address the requirement of an independent legal relationship between the parties, we have found none allowing a claim for indemnification in the absence of such a duty or relationship. See, e.g., Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 579 A.2d 26 (1990) (contractual relationship between licensee and licensor); Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989) (contractual relationship between owner and manufacturer of airplane); Beaudoin v. Town Oil Co., 207 Conn. 575, 542 A.2d 1124 (1988) (contractual relationship between owner of house and insulation contractor); Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 475 A.2d 305 (1984) (landlord-tenant relationship). We conclude that, in order to be entitled to indemnification from a joint tortfeasor, the party seeking indemnification must establish that the alleged indemnitor owed that party a duty based on an independent legal relationship.

A motion to strike tests the legal sufficiency of a pleading. Practice Book § 152; Ferryman v. Groton, supra, 212 Conn. at 142, 561 A.2d 432. 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, 278, 550 A.2d 1073 (1988). The question whether a party is primarily negligent and thereby...