Brass Mill Ctr., LLC v. Subway Real Estate Corp.

• Court: Connecticut Court of Appeals
• Writing for the Court: CLARK, J.
• Citation: Brass Mill Ctr., LLC v. Subway Real Estate Corp., 214 Conn.App. 379, 280 A.3d 1216 (Conn. App. 2022)
• Decision Date: 09 August 2022
• Docket Number: AC 44436
• Parties: BRASS MILL CENTER, LLC v. SUBWAY REAL ESTATE CORP. et al.

214 Conn.App. 379

280 A.3d 1216

BRASS MILL CENTER, LLC

v.SUBWAY REAL ESTATE CORP. et al.

AC 44436

Appellate Court of Connecticut.

Argued March 2, 2022

Officially released August 9, 2022

Ashley A. Noel, with whom was Cassandra Pilczak, Hartford, for the appellant (defendant AlliedBarton Security Services, LLC).

Michael Smith, for the appellee (plaintiff).

Suarez, Clark and Sheldon, Js.

CLARK, J.

The defendant AlliedBarton Security Services, LLC,¹ appeals from the judgment rendered by the trial court in favor of the plaintiff, Brass Mill Center, LLC, granting summary judgment as to liability and awarding damages. The defendant argues that the trial court improperly concluded that it had a contractual duty (1) to defend the plaintiff in an underlying wrongful death action brought against the plaintiff and (2) to indemnify the plaintiff in that same wrongful death action, including for attorney's fees and costs that the plaintiff incurred in pursuing claims against third parties. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff, the owner of the Brass Mill Center & Commons shopping mall in Waterbury (mall), and the defendant, a security company, are parties to a security agreement, which sets forth the security services that the defendant is obligated to provide the plaintiff. The security agreement states that "[The defendant's] personnel assigned to the Property² shall be responsible for promoting a pleasant shopping atmosphere and crime prevention efforts through patrol of the Property; seeking out and providing appropriate customer service to patrons; reasonable inspection of the Property for safety hazards and enforcement of the Property's rules and regulations; appropriate response to incidents and emergencies; preliminary investigation and appropriate disposition of incidents; access control/physical security as appropriate during operating and non-operating hours; official reporting of activities, incidents, and inspection logs; and any special assignments and/or events related to the security/safety function of the Property as agreed upon by the parties." (Footnote added.)

The security agreement also contains an indemnification provision that provides in relevant part that "[the defendant] agrees that [i]t shall defend, indemnify, and hold harmless [the plaintiff] ... from and against any claims, liabilities, losses, damages, actions, causes of action, or suits to the extent caused by (A) any actual or alleged negligent or grossly negligent act or omission or willful misconduct of [the defendant] or its agents or employees at the Property or in connection with this Agreement or breach thereof in any way ...."³

At approximately 8:20 a.m. on December 21, 2012, Yaneli Nava Perez, who was a pedestrian crossing the travel lane of the mall on her way to work in the mall's food court, was struck by a vehicle driven by a seventeen year old unlicensed driver. The weather conditions at the time of the accident were poor, with heavy to torrential rains and high wind gusts. The windows of the vehicle were obscured by "fog," preventing the young driver from seeing Perez at the time of the collision. After the Waterbury police and emergency responders arrived at the scene, Perez was transported by ambulance to St. Mary's Hospital for emergency treatment, where she later succumbed to her injuries.

In 2014, Gabriel Avendano, the administrator of the estate of Yaneli Nava Perez, filed a four count complaint (Avendano complaint) against the plaintiff, General Growth Services, Inc., General Growth Management, Inc., and Anthony Guerriero (Avendano action).⁴ As we discuss in greater detail later in this opinion, the Avendano complaint alleged eight separate allegations of negligence against the plaintiff, including, inter alia, that the plaintiff failed to install or use any traffic calming measures on the roadway within the mall premises that ran parallel to Union Street and designed the premises in such a way so as to allow motorists to easily travel at unsafe rates of speed through areas routinely filled with pedestrians. The Avendano complaint did not name the defendant as a defendant.

On October 5, 2015, pursuant to the security agreement, the plaintiff demanded defense and indemnification from the defendant with respect to the Avendano action. By letter dated October 23, 2015, the defendant denied the plaintiff's tender, explaining, inter alia, that the Avendano complaint did not allege that the plaintiff "failed to do something that was required of [the defendant] under the [security] [a]greement. [The defendant] was clearly not responsible for the design of the roadway or the absence of traffic calming measures."

On August 25, 2016, the plaintiff filed the present action against the defendant, Subway Real Estate Corp. (Subway), and Foot Locker Retail, Inc. (Foot Locker). The complaint asserts two causes of action against the defendant: count VI alleges that the defendant had a contractual duty to defend and indemnify the plaintiff in connection with the Avendano complaint, and count VII alleges a common-law indemnification claim.

On October 28, 2019, the parties filed cross motions for summary judgment. In a memorandum of decision dated June 11, 2020, the court, Roraback, J. , granted the plaintiff's motion as to liability on the contractual indemnification claim but denied its motion with respect to the common-law indemnification claim. In so doing, the court concluded, as a matter of law, that the Avendano complaint could "fairly [be] read to allege negligent acts or omissions for which [the defendant] was responsible under its contractual duties to inspect, monitor and secure the property ...." Accordingly, it held that the defendant had a duty to defend the plaintiff. The court also held that the defendant had a duty to indemnify the plaintiff.⁵ The court also denied the defendant's motion for summary judgment in its entirety.

On July 1, 2020, the defendant filed a motion to reargue/reconsider the court's June 11, 2020 decision arguing, inter alia, that, because the court had denied the plaintiff's motion for summary judgment with respect to the common-law indemnification claim on the basis that the plaintiff was unable to satisfy two of the four elements required to prevail on its claim, the court should have granted the defendant's motion for summary judgment with respect to that claim. On July 17, 2020, the court issued a decision granting the defendant's motion for summary judgment as to the plaintiff's common-law indemnification claim.⁶

On September 9, 2020, the court held a hearing in damages. In a memorandum of decision dated December 3, 2020, the trial court awarded the plaintiff damages totaling $426,807.97,⁷ plus offer of compromise interest on that amount at a rate of 8 percent per annum from May 24, 2019, until the date that judgment entered, and postjudgment interest at a rate of 5 percent per annum from the date that judgment entered until the date the judgment is satisfied. This appeal followed.

We begin by setting forth our standard of review. "Summary judgment rulings present questions of law; accordingly, [o]ur review of the ... decision to grant [a] ... motion for summary judgment is plenary." (Internal quotation marks omitted.) Farrell v. Twenty-First Century Ins. Co. , 301 Conn. 657, 661, 21 A.3d 816 (2011) ; see also Practice Book § 17-49. In addition, the interpretation of definitive contract language presents a question of law, over which our review also is plenary. See, e.g., CCT Communications, Inc. v. Zone Telecom, Inc. , 327 Conn. 114, 133, 172 A.3d 1228 (2017) ; see also Misiti, LLC v. Travelers Property Casualty Co. of America , 308 Conn. 146, 154, 61 A.3d 485 (2013).

We must also determine the appropriate standard of review and analysis to employ when deciding whether one sophisticated business party to a contract has a contractual duty to defend a claim brought against another sophisticated business party to that contract. The duty to defend most commonly arises in the context of a contract of insurance; see, e.g., DaCruz v. State Farm Fire & Casualty Co. , 268 Conn. 675, 687, 846 A.2d 849 (2004) ; and our courts have made clear that "whether an insurer has a duty to defend its insured is purely a question of law ...." (Internal quotation marks omitted.) Lift-Up, Inc. v. Colony Ins. Co. , 206 Conn. App. 855, 866, 261 A.3d 825 (2021). Our appellate courts have not previously addressed whether our standard of review and analysis regarding a duty to defend in the context of insurance contracts should apply to contracts between sophisticated business entities that contain similar provisions. See, e.g., ( Henderson v. Bismark Construction Co. , Superior Court, judicial district of Fairfield, Docket No. CV-17-6062488-S (July 10, 2019) 68 Conn. L. Rptr. 852, 853, 2019 WL 3546481 ) ("[a]lthough research did not reveal any appellate authority, and the parties have not provided any appellate authority, a few Superior Court decisions have discussed whether the law on an insurer owing a duty to defend applies to the analysis of whether one of two commercial parties owes a duty to defend to the other based on a contract for indemnity"). In reviewing our case law, we discern no reason to apply a different analysis in such cases.⁸ Accordingly, we hold that "[t]he question of whether [one sophisticated business party] has a [contractual] duty to defend [another sophisticated business party] is purely a question of law, which is to be determined by comparing the allegations of [the] complaint with the terms of the [parties’ agreement]." (Internal quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co. of America , supra, 308 Conn. at 154, 61 A.3d 485.

With this standard of review in mind, we next turn to the legal principles that inform our analysis. "A contract must be...