Jackson v. Costco Wholesale Corp., CV156008167S

• Decision Date: 19 December 2017
• Docket Number: CV156008167S
• Court: Connecticut Superior Court
• Parties: Christina JACKSON v. COSTCO WHOLESALE CORP. et al.

Christina JACKSON v. COSTCO WHOLESALE CORP. et al.

No. CV156008167S

Superior Court of Connecticut, Judicial District of New Haven, Meriden

December 19, 2017

UNPUBLISHED OPINION

OPINION

Kathleen E. McNamara, Judge

FACTS

This action arises out of an alleged slip and fall in a Costco parking lot. The plaintiff, Christina Jackson, initiated a premises liability action against the defendant, Costco Wholesale Corp. (Costco), ^[1] alleging that she fell over a misaligned and improperly painted curb bumper in a handicapped parking space at Costco’s Brookfield store (premises). She alleged that Costco had negligently created a dangerous condition on its premises by failing to place a fully painted curb stop in the parking lot and by allowing an uneven, misaligned, and poorly marked curb stop to exist on the premises. On March 7, 2016, Costco filed a third-party complaint against the third-party defendant, Cherry Hill Construction, Inc. (Cherry Hill), which is the subject of this motion for summary judgment.

Count one of Costco’s third-party complaint sounds in contractual indemnification and alleges the following facts. Costco hired Graham, LTD (Graham) to install curb bumpers at the premises. Graham, as the general contractor, entered into a subcontract with Cherry Hill to install the curb bumpers. Pursuant to this subcontract, Cherry Hill was required to name Costco as an additional insured; therefore, Costco was an intended third-party beneficiary to the subcontract, and Cherry Hill had an obligation to provide Costco with a defense and indemnification for Jackson’s underlying claims. To date Cherry Hill has refused to indemnify either Graham or Costco thereby neglecting its contractual obligations. Count two of the complaint, which sounds in breach of contract incorporates the aforementioned allegations and specifically alleges that, because Cherry Hill has failed to honor its contractual obligation to indemnify Costco and has failed to provide Costco with a defense and indemnification under its liability policy, Cherry Hill has breached its contract with Graham, to which Costco was an intended third-party beneficiary. Finally, in count three, which sounds in common-law indemnification, Costco alleges that Cherry Hill had complete and exclusive control over the curb bumpers; that the plaintiff’s injuries were proximately caused by the primary, active negligence of Cherry Hill; that Costco had no reason to know of or anticipate Cherry Hill’s negligence; and that it reasonably relied on Cherry Hill not to be negligent. Costco alleges that it was not negligent, did not owe any duty to Jackson, and is entitled to indemnification from Cherry Hill for any amounts that it becomes obligated to pay. Costco attaches two exhibits to its third-party complaint: the subcontract agreement between Cherry Hill and Graham, including Attachment A titled Terms and Conditions and the Subcontractor Information Sheet (Exhibit A), and a letter from Graham’s counsel to Cherry Hill, which formally demands defense, indemnification, and payment for costs (Exhibit B). On April 26, 2017, Cherry Hill moved for summary judgment as to the entire third-party complaint, on the grounds that there are no genuine issues of material fact that the plain language in the indemnification provision of the subcontract does not require Cherry Hill to defend or indemnify Costco; that Costco’s insurance-related claim is not sufficiently related to the plaintiff’s underlying claims and, therefore, violates Connecticut’s impleader statute and rule; and that Cherry Hill was not negligent and did not have exclusive control over the situation that allegedly caused the plaintiff’s injuries. In support of its motion, Cherry Hill submitted a memorandum of law and exhibits in support.^{[2] , [3]} Costco responded by filing an objection on June 12, 2017, with supporting exhibits, arguing that there are genuine issues of material fact.^[4] Cherry Hill filed a reply brief on July 17, 2017. Oral argument was heard on the motion at short calendar on September 5, 2017. Cherry Hill subsequently filed an answer, together with special defenses and counterclaims, on October 11, 2017.^[5]

DISCUSSION

" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). " [S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 535. " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, supra, 573. " [I]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " If a defendant’s well supported motion for summary judgment shows that there is no genuine factual dispute as to multiple essential elements of a plaintiff’s cause of action, such that none of them reasonably could be resolved in the plaintiff’s favor at trial, the viability of that plaintiff’s case is not improved if he only responds with sufficient counterevidence to call some of those essential elements back into question. Put differently, by raising a genuine issue of fact as to only some of the essential elements under attack, the plaintiff has not altered the potential outcome of his case." (Emphasis in original.) Stuart v. Freiberg, 316 Conn. 809, 823-24, 116 A.3d 1195 (2015).

I. Contractual Indemnification

Cherry Hill argues that there is no genuine issue of material fact that Cherry Hill does not owe Costco a duty to defend or indemnify. In particular, Cherry Hill argues that the plain language of the subcontract requires only that Costco be named as an additional insured, not indemnified. Moreover, Cherry Hill argues that it does not owe Costco a duty to defend or indemnify because Cherry Hill maintains that it was not negligent. Costco counters that, because Cherry Hill was required to name Costco as an additional insured, Costco is an intended third-party beneficiary to the contract. Costco further argues that, by virtue of being an additional insured, Cherry Hill was required to defend and indemnify Costco in the underlying action.

In support of their respective arguments, both parties rely on the same two provisions in the contract, but offer differing interpretations. Cherry Hill proffers a plain language reading of the contract: although the insurance provision of the subcontract (Item 18 of Ex. A) states that Costco will be named as an additional insured, the indemnification provision (Item 29 of Ex. A) does not mention Costco specifically or reference the owner of the project, and only states that Cherry Hill agrees to defend and indemnify Graham as the contractor. In response, Costco highlights the language in Item 18 specifying that such " insurance shall include: contractual liability coverage applicable to the indemnity provisions of this Subcontract." Costco reads this language as Cherry Hill’s intent to indemnify Costco as well.

In Connecticut, the rights of an additional insured appear to be distinct from the rights of an indemnitee.^[6] Black’s Law Dictionary (7th Ed. 1999) defines " additional insured" as " [a] person who is covered by an insurance policy but who is not the primary insured." Individual insurance policies further define the term " additional insured" and set the parameters for coverage. See e.g., Misiti, L.LC v. Travelers Property Casualty Co of America, 308 Conn. 146, 150, 61 A.3d 485 (2013) (commercial property owner named " as an additional insured, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the tenant]" [internal quotation marks omitted]). Although a separate contract may require one party to obtain insurance and list another party as an additional insured, the rights of the additional insured are still subject to the insurance policy. See e.g. Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 765-67, 67 A.3d 961 (2013) (contract between the parties contained provisions governing insurance coverage, but insurance policy defined additional insured as " an Insured ... only with respect to liability arising out of [the policy holder’s] work for the Additional Insured" [internal quotation marks omitted]); Royal Indemnity Co. v. Terra Firma, Inc., 287 Conn. 183, 186, 947 A.2d...