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

• Decision Date: 09 August 2022
• Docket Number: AC 44436
• Citation: 214 Conn.App. 379,280 A.3d 1216
• Parties: BRASS MILL CENTER, LLC v. SUBWAY REAL ESTATE CORP. et al.
• Court: Connecticut Court of Appeals

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

280 A.3d 1218

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.

214 Conn.App. 380

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.

214 Conn.App. 381

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

280 A.3d 1219

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

214 Conn.App. 382

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

214 Conn.App. 383

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

280 A.3d 1220

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.

214 Conn.App. 384

(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

214 Conn.App. 385

the four elements required to prevail on its claim, the court should have granted the defendant's

280 A.3d 1221

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...