Gardner v. Alderman
| Decision Date | 23 October 2019 |
| Docket Number | HHDCV176080338S |
| Court | Superior Court of Connecticut |
| Parties | Stefan GARDNER et al. v. Kathleen ALDERMAN et al. |
UNPUBLISHED OPINION
File Date: October 24, 2019
On June 4, 2019, after a jury trial, the jury rendered a verdict in favor of the plaintiff/counterclaim defendant, Stefan Gardner, and against the defendants in the amount of $379 000 reduced by 10% to $341, 100, attributable to the plaintiff’s contributory negligence. The jury also awarded the plaintiff’s spouse, Adele Gardner, $50, 000 on her loss of consortium claim. The defendants filed various post-trial motions to set aside the verdict, for mistrial and a remittitur. The court has denied those motions in a separate memorandum of decision.
The defendant/counterclaim plaintiff, Twenty Two Hill, LLC brought a counterclaim[1] against the plaintiff/counterclaim defendant for indemnification pursuant to the subcontractor agreement it had with the plaintiff. The plaintiff[2] denied the essential allegations of the defendant’s counterclaim, and asserted special defenses that the contract is not enforceable because it is an adhesion contract and violates public policy. The parties agreed that the defendant’s counterclaim and plaintiff’s special defenses would be tried to the court, simultaneously with the jury trial. In view of the jury’s verdict in favor of the plaintiffs against the defendant, the defendant now seeks judgment in its favor on the counterclaim and damages in the amount of its portion of the jury verdict attributable to it as well as reasonable attorneys fees. The plaintiff asserts that the subcontractor agreement is invalid and unenforceable. Resolution of the defendant’s counterclaim and the plaintiff’s special defenses requires the court to examine the facts in relation to the subcontractor agreement.
The facts relevant to the counterclaim are as follows:
The plaintiff was an experienced field inspector, having worked in the field for three years prior to September 12, 2016. On September 12, 2016, the plaintiff entered into a contract with the defendant to work as a field inspector. The contract was entitled "Subcontractor Agreement Terms and Conditions of Contract." The plaintiff’s execution of this agreement was "a condition of his working as a field inspector for the defendant. Under the agreement, the work to be performed was described as "inspection services on residential and commercial properties as specifically directed by Contractor’s client." Section 6 of the agreement provided that the plaintiff was "an independent contractor" to the defendant. The agreement required the plaintiff to, at his own expense, "procure carry and maintain on all its operations workers’ compensation and employer’s liability insurance coverage for all of its employees, ..." The plaintiff did not procure this insurance as required by the agreement.
The plaintiff was paid for his work under the agreement.
Section 9 of the agreement pertained to "indemnification" and provides:
Subcontractor shall indemnify and hold harmless Contractor against any claims, damages, losses and expenses, including legal fees, including property damage, bodily injury and/or death, arising out of or resulting from performance of the contracted work to the extent caused in whole or in part by the Subcontractor or anyone directly or indirectly employed by the Subcontractor.
Section 19 of the agreement, entitled "Construction" provides that:
Contractor and Subcontractor hereby acknowledge that both parties participated equally in the negotiation of this Agreement and that no court construing this Agreement shall construe it more stringently against one party than against the other, regardless of which party’s counsel drafted this Agreement.
There is no evidence provided that the plaintiff was in anyway forced to sign the agreement or to work as a field inspector for the defendant.
On or about September 30, 2016, after entering into the agreement, the plaintiff received a work order from the defendant to inspect property located at 143 Redstone Street, Bristol (the property), which was in foreclosure. Although the plaintiff had not conducted an inspection of the property prior to September 30, 2016, other inspectors had done so and there were several prior inspection reports that indicated that there was a broken basement stair in the property. The plaintiff had access to these prior inspection reports and was supposed to read them prior to inspecting the property. The plaintiff reviewed certain of the prior reports but did not see the note that the basement stair was broken.
When the plaintiff was walking down the basement stair to inspect the basement, he fell on the broken stair and sustained a significant ankle injury. As a result, he brought this negligence action against the Estate of Kathleen Alderman, the owner of the property, C.I.T. Bank, N.A., which held a mortgage on the property, National Field Representatives, Inc. (NFR), defendant C.I.T. Bank’s mortgage field inspection company, and Twenty Two Hill, LLC (Twenty Two), which contracted with defendant NFR to provide mortgage field inspection services on the property and engaged the plaintiff as its subcontractor on the property.[3]
The plaintiff’s spouse, Adele Gardner, brought a claim for loss of consortium.
All of the defendants asserted the special defense of contributory negligence.
The jury found the issues for the plaintiff Stefan Gardner, and awarded damages in the amount of $379, 000. Because the jury found that the plaintiff was 10% at fault for his injuries, the jury reduced the award to $341, 100. The jury awarded plaintiff Adele Gardner $50, 000 on her loss of consortium claim.
The jury determined the percentage of negligence attributable to the plaintiff, Stefan Gardner, and the defendants as follows:
In the subcontractor agreement, the plaintiff agreed to indemnify and hold harmless Twenty Two Hill for injuries, damages, losses and legal fees arising out of the performance of the contracted work "to the extent caused in whole or in part by the Subcontractor ..." The jury having found the plaintiff ten percent at fault for his own injuries, Twenty Two Hill claims that the plaintiff is obligated to indemnify it because the plaintiff’s injuries and damages were caused "in part" by the plaintiff.
Twenty Two argues that the plaintiff breached the subcontractor agreement by (i) failing to hold harmless and indemnify Twenty Two from the underlying action in accordance with Section 9 of the agreement and (ii) failing to obtain workers’ compensation coverage pursuant to Section 10 of the agreement. To prevail on its counterclaim, Twenty Two must prove by a preponderance of the evidence that (i) it had a valid contractual indemnification clause with the plaintiff pursuant to the subcontractor agreement and (ii) that the plaintiff breached the subcontractor agreement.
The plaintiff Stefan Gardner has the burden of proof by a preponderance of the evidence on his special defenses to the counterclaim. He argues that the subcontractor agreement, including the indemnification provision, is invalid (i) for lack of consideration, (ii) as against public policy, or (iii) as a contract of adhesion. For the following reasons, the court finds that Twenty Two Hill has sustained its burden by a preponderance of the evidence on its counterclaim, and the plaintiff has failed to prove its special defenses.
To state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification. Connecticut General Life Ins. Co. v. SVA, Inc., 743 F.Supp. 107, 110 (D.Conn. 1990). Generally, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law. See PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004) (). "Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." Poole v. Waterbury, 266 Conn. 68, 88, 831 A.2d 211 (2003).
In Fifield v. South Hill Ltd. Partnership, the court considered whether an independent contractor had a contractual duty to indemnify a property owner and general contractor when one of its employees was injured while working on the property owner’s premises. Fifield v. South Hill Ltd. Partnership, 20 F.Supp.2d 366, 371 (D.Conn. 1998). There, the indemnification clause at issue provided that the independent contractor would indemnify the property owner and general contractor "for any liability for personal injury or property damage resulting only from [the independent contractor’s own] action or inaction." Because the court found that "[i]n this case, if [the property owner and general contractor] are liable to plaintiff, it will be for their own independent negligence and not for any negligence attributable to [the independent contractor]," Id., 372, it concluded that the independent contractor was not required to indemnify. However, had the independent contractor been found liable for any negligence, he would have been obligated under the agreement to indemnify the general contractor and property owner. Id., 371-72.
Similar to the agreement in Fifield, the indemnification clause between Twenty Two Hill and the plaintiff provides that the plaintiff subcontractor will indemnify Twenty Two for any personal...
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