Beaudoin v. Town Oil Co., Inc., 13296

• Decision Date: 24 May 1988
• Docket Number: No. 13296,13296
• Citation: 542 A.2d 1124,207 Conn. 575
• Court: Connecticut Supreme Court
• Parties: Barbara BEAUDOIN v. TOWN OIL COMPANY, INC.

Page 1124

542 A.2d 1124

207 Conn. 575

Barbara BEAUDOIN v. TOWN OIL COMPANY, INC.

No. 13296.

Supreme Court of Connecticut.

Argued March 8, 1988.

Decided May 24, 1988.

William J. Melley III, with whom were Richard W. Gifford, Hartford, and, on the brief, Paul B. Groobert, Manchester, for appellant (plaintiff).

Jack G. Steigelfest, with whom, on the brief, were Robert P. Volpe and Constance L. Epstein, Hartford, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and COVELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal arises out of an action for indemnification filed by the plaintiff, Barbara Beaudoin, against the defendant, Town Oil Company, Inc. (Town Oil). This claim arises out of another action in which the plaintiff attempted to implead the defendant via a third party complaint requesting indemnification, but the trial court, Kelly, J., granted the defendant's motion to strike the third party complaint. The plaintiff then filed the instant independent action on the same theory of indemnification and the court, Kelly, J., granted a motion to strike that complaint. The plaintiff's appeal on the latter motion to strike is before us on this appeal. We find no error.

It is appropriate to set out the facts and procedural history as revealed by the pleadings in this case. The plaintiff and her former husband, Ronald Stavens, owned a house in Vernon in 1976, in which the defendant, pursuant to a contract signed by it and Stavens, installed urea formaldehyde foam insulation (UFFI). The defendant represented in the terms of the contract that the insulation was nontoxic, harmless and safe. Stavens subsequently transferred his interest in the property to the plaintiff incident to a divorce settlement. On September 23, 1983, the plaintiff sold the house to Thomas and Barbara Shubbuck. The Shubbucks filed an action against the plaintiff and other parties on April 9, 1985. In the first count of their third amended complaint, the Shubbucks alleged that Marilyn Kuhnly, individually and d/b/a Century 21, acted as the agent in the 1983 sale of the property and, during the negotiations, had stated falsely "that the residence was insulated with a safe material and did not contain urea formaldehyde foam insulation." The second count, also against Kuhnly individually and d/b/a Century 21, alleged that Kuhnly's conduct had constituted an unfair trade practice prohibited by General Statutes § 42-110b. The third count against Barbara Beaudoin alleged that she and her former husband falsely or without knowing either the truth or falsity, while falsely assuming knowledge, had stated that the home had been insulated with materials other than UFFI. The fourth count, against Kuhnly individually and d/b/a Century 21, alleged that Kuhnly's false representations had been made wilfully or wantonly in reckless disregard of the rights of the Shubbucks.

In that action, Beaudoin moved to implead Town Oil as a third party defendant pursuant to General Statutes § 52-102a. ¹ The court, Kelly, J., granted Town Oil's motion to strike the third party complaint because the " 'plaintiff's [Shubbucks'] claim against' the defendant seller [Beaudoin] is one for misrepresentation of a material fact, while [Beaudoin's] claim against the third-party defendant [Town Oil] is one for a defective product. None of the allegations of the third-party complaint supports a claim that the third-party defendant is somehow liable for all or part of the seller's misrepresentation of material fact. Each claim is entirely independent of the other." Beaudoin's motion for permission to amend the third party complaint was denied by the trial court, which then rendered judgment for Town Oil. Beaudoin has filed a timely appeal of this decision. The Shubbucks have also filed an independent action against the defendant Town Oil, seeking damages caused by the installation of UFFI.

The plaintiff then commenced the instant action by filing a six count complaint ² against the defendant alleging that it was liable on the basis of the product liability act; General Statutes § 52-572m et seq.; strict liability, express and implied warranties, negligence and false representations. The plaintiff claimed indemnity for all or part of the damages alleged by the Shubbucks, including the expenses incurred by her in defending the action by the Shubbucks.

The defendant then filed a motion to strike this action on the ground that the complaint failed "to state claims upon which relief may be granted in that [it fails] to state cognizable claims for indemnification and for the further reason that the Plaintiff should be collaterally estopped from claiming otherwise." The trial court, Kelly, J., granted the motion to strike. The plaintiff filed a motion for articulation and the trial court's memorandum ³ opined that the plaintiff had not made out a legally sufficient claim for indemnification for an exception to the general rule that there is no right to indemnity between joint tortfeasors, as outlined in Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). The conclusory memorandum did not point out which part of the four part Kaplan test that the plaintiff had failed to meet. Judgment was rendered for the defendant and this appeal followed.

The plaintiff claims on appeal that the trial court erred in holding that her complaint was legally insufficient to support an action for indemnification. Specifically, the plaintiff claims that: (1) the plaintiff and the defendant are not joint tortfeasors, and thus the general rule against indemnification does not apply; (2) even if the plaintiff and the defendant are joint tortfeasors, there are other applicable exceptions to the Kaplan rule, such as the one outlined in § 886B(2) of the Restatement (Second) of Torts; (3) the active/passive distinction under the Kaplan test is not applicable to an indemnity claim based on products liability; ⁴ and (4) even if the active/passive distinction under Kaplan applies, the plaintiff could be held liable for misrepresentations by Kuhnly, her former husband Stavens, and the defendant, thus making her conduct passive. In its brief, the defendant counters the plaintiff's arguments on indemnification and also asserts that the plaintiff should be collaterally estopped from relitigating the claim of indemnification since the issue was resolved by the trial court, Kelly, J., when it dismissed the previous third party complaint. Although more properly understood as the "prior pending action doctrine" rather than collateral estoppel; see Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1985); we agree with the defendant that the trial court properly dismissed the plaintiff's complaint claiming indemnification.

"It has long been the rule that when two separate lawsuits are 'virtually alike' the second action is amenable to dismissal by the court. Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981)." Solomon v. Aberman, 196 Conn. 359, 382, 493 A.2d 193 (1985); Halpern v. Board of Education, supra. The prior pending action doctrine has evolved as "a rule of justice and equity"; Hatch v. Spofford, 22 Conn. 485, 494 (1853); and retains its vitality in this state in which "joinder of claims and of remedies is permissive rather than mandatory." Solomon v. Aberman, supra.

This rule of justice and equity is always applicable when two suits are virtually alike and are brought in the same jurisdiction. Halpern v. Board of Education, supra, 196 Conn. at 652-53, 495 A.2d 264; Henry F. Raab Connecticut, Inc., supra, 183 Conn. at 112, 438 A.2d 834; Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 392, 185 A. 82 (1936); Hatch v. Spofford, supra. We have explained the doctrine as follows: " 'It is so, because there cannot be any reason or necessity for bringing the second [lawsuit], and, therefore, it must be oppressive and vexatious.' " Dettenborn v. Hartford-National Bank & Trust Co., supra, quoting Hatch v. Spofford, supra. " 'The rule forbidding the second action is not, however, one "of unbending rigor, nor of universal application, nor a principle of absolute law...." Hatch v. Spofford, [supra].' Farley-Harvey Co. v. Madden, 105 Conn. 679, 682, 136 A. 586 (1927); see Brochin v. Connecticut Importing Co., 137 Conn. 350, 352, 77 A.2d 336 (1950); Dettenborn v. Hartford-National Bank & Trust Co., supra [121 Conn. at] 393 ." Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., supra, 183 Conn. at 113, 438 A.2d 834; Halpern v. Board of Education, supra, 196 Conn. at 653, 495 A.2d 264. "We must examine the pleadings to ascertain whether the actions are 'virtually alike.' See Solomon v. Aberman, supra [196 Conn. at] 383 ." Halpern v. Board of Education, supra.

In the third party complaint ⁵ to implead the defendant in the original action brought by the Shubbucks, the plaintiff alleged a product liability claim under General Statutes § 52-572m et seq. The complaint alleged that: the third party defendant (defendant) had failed to warn the third party plaintiff (plaintiff) about the defective insulation; the defendant had misrepresented the insulation's safety to the plaintiff and general public; the defendant had failed to disclose the dangerousness of the insulation; the defendant had been negligent in failing properly to test it; the defendant had installed the insulation in a defective manner; the defendant had continued to distribute the insulation although it knew or should have known of its dangerous characteristics; the defendant had breached an implied warranty of merchantability; and the defendant had breached its express warranties. The relief requested by the third party plaintiff Beaudoin entails indemnification for all liability incurred by her in the action by the Shubbucks (the plaintiffs in that case) and the costs of defending that action.

In the...