Maccarone v. Hawley, 3824

• Decision Date: 15 April 1986
• Docket Number: No. 3824,3824
• Citation: 507 A.2d 506,7 Conn.App. 19
• Court: Connecticut Court of Appeals
• Parties: Marie MACCARONE v. John J. HAWLEY.

Page 506

507 A.2d 506

7 Conn.App. 19

Marie MACCARONE v. John J. HAWLEY.

No. 3824.

Appellate Court of Connecticut.

Argued Dec. 13, 1985.

Decided April 15, 1986.

Charles B. Higgins, with whom, on brief, was H. Bissell Carey III, Hartford, for appellant (named defendant-third party plaintiff).

Jack D. Miller, with whom, on brief, was David W. Cooney, Hartford, for appellee (third party defendant Veterinary Clinic of West Hartford, P.C.).

Before HULL, BORDEN and DALY, JJ.

BORDEN, Judge.

This case arises from a claim that a dog, owned by the defendant and being boarded by the Veterinary Clinic of West Hartford, P.C. (the Clinic), bit the plaintiff, an employee of the Clinic. The defendant appeals from a judgment rendered after the trial court granted the Clinic's motion to strike the defendant's third party complaint against the Clinic. The issues involve whether the first count of the third party complaint alleges a viable cause of action for indemnity, and whether the dog-bite statute; General Statutes § 22-357; provides the owner of a dog with an implied right of indemnity against the keeper of the dog.

The plaintiff's complaint against the defendant alleged that the defendant was the owner and keeper of a dog which was being kept at the premises of the Clinic, that the plaintiff, who was working at the Clinic, was bitten by the dog, and that the defendant was therefore liable to the plaintiff pursuant to General Statutes § 22-357. ¹ The defendant filed a third party complaint against the Clinic for indemnity. The first count of the third party complaint alleged that, prior to the date of the plaintiff's injuries, the defendant had contracted with the Clinic to board, kennel, feed, groom and treat the dog while the defendant was out of the state, and that as part of the contract the Clinic agreed to exercise dominion and control over the dog to the extent necessary to prevent it from harming others. It further alleged that the defendant delivered the dog to the Clinic pursuant to the contract, and that, if it is determined that the dog injured the plaintiff, the plaintiff's injuries were solely and actually caused by the breach of contract by the Clinic in that it failed to exercise the dominion and control necessary to prevent it from harming the plaintiff. The second count reasserted the allegations of the first count, except those allegations that the plaintiff's injuries were caused by the Clinic's breach of contract. In place of those allegations, the second count alleged that the Clinic was the "keeper" of the dog as that term is used in General Statutes § 22-357, in that it was exercising exclusive dominion and control over the dog to the exclusion of the defendant. Both counts sought a judgment that if the defendant is liable to the plaintiff, then the Clinic is liable to the defendant to the extent of such liability, plus costs and attorney's fees in defending the plaintiff's action.

The Clinic moved to strike the third party complaint. The trial court granted the motion as to both counts. Upon the failure of the defendant to plead over, judgment was rendered striking the third party complaint, from which the defendant appeals.

I

We begin our analysis of this case by noting that in this factual context both counts of the third party complaint are affected by principles of the Workers' Compensation Act which limit the Clinic's liability as an employer. The underlying complaint of the plaintiff, the validity of which is not involved in this appeal, alleges that she was injured by the defendant's dog on the premises of the Clinic while she was working at the Clinic. Although the defendant, in his answer, denied those allegations, his third party complaint is premised on the plaintiff's prevailing against him on her complaint. Thus, for purposes of the motion to strike the third party complaint, we must view this as a case in which a third party, namely the defendant, seeks indemnity from an employer, namely the Clinic, for injuries suffered by the employer's employee in the course of his employment. In this factual and procedural context the governing rule is that "[a]bsent an independent legal relationship, a third party's action against an employer for indemnification is barred by the Workers' Compensation Act. Ranta v. Bethlehem Steel Corporation, 287 F.Supp. 111, 113 (D.Conn.1968); Stevens v. Polinsky, 32 Conn.Sup. 96, 102, 341 A.2d 25 (1974)." Mable v. Bass Transportation Co., 40 Conn.Sup. 253, 258, 490 A.2d 548 (1985), adopted as opinion of the Appellate Court in Mable v. Bass Transportation Co., 3 Conn.App. 547, 490 A.2d 538 (1985). Thus, the question under each count of the third party complaint is whether the defendant has sufficiently alleged an independent legal relationship between him and the Clinic to avoid the bar of the Workers' Compensation Act.

II

As to the first count of the third party complaint, the allegations sufficiently spell out an independent legal relationship, namely, an express contract the breach of which gives rise to indemnity. These allegations are that the defendant "contracted with the Clinic to board, kennel, feed, groom and treat" the dog. They state that "[a]s a part of its obligations under said contract, for which good and valuable consideration was paid by [the defendant], the Clinic agreed to exercise dominion and control over said dog to the extent necessary and required to prevent it from causing harm or injury to others during the term of said contract." They further allege: "If it is determined that said dog caused plaintiff's injuries, said injuries were solely and actually caused by the breach of said contract by the Clinic in that it failed to exercise the dominion and control over said dog reasonably necessary and required to prevent it from doing harm to the plaintiff, all as required under its contract with [the defendant]."

These allegations, taken as true for purposes of the motion to strike, state a claim for indemnity by way of a specific breach of an express contract obligation. That theory is supported by Mable v. Bass Transportation Co., supra, and by the implications of Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 409-11, 207 A.2d 732 (1965) (breach of express contract obligation may give rise to action for indemnity between tortfeasors), and of Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94-95, 428 A.2d 808 (1980). See also Ranta v. Bethlehem Steel Corporation, supra; Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 107 A.2d 406 (1954).

III

As to the second count of the third party complaint, the independent legal relationship asserted by the defendant is an implied right of indemnity under the dog-bite statute. The defendant claims that the dog-bite statu...