Royal Indemnity Co. v. Terra Firma, Inc.

• Decision Date: 03 June 2008
• Docket Number: No. 17874.,No. 17873.,17873.,17874.
• Citation: 947 A.2d 913,287 Conn. 183
• Court: Connecticut Supreme Court
• Parties: ROYAL INDEMNITY COMPANY v. TERRA FIRMA, INC., et al.

947 A.2d 913

287 Conn. 183

ROYAL INDEMNITY COMPANY v. TERRA FIRMA, INC., et al.

No. 17873.

No. 17874.

Supreme Court of Connecticut.

Argued March 10, 2008.

Decided June 3, 2008.

Celeste M. Butera, pro hac vice, with whom were Pia E. Riverso, pro hac vice, and, on the brief, Thomas C. Clark and Melicent B. Thompson, Avon, for the appellant in Docket No. 17873 (plaintiff).

Frank H. Santoro, with whom, on the brief, were R. Cornelius Danaher and Calum B. Anderson, Hartford, for the appellant in Docket No. 17874 (third party defendant United States Fire Insurance Company).

Michael S. Taylor, with whom were Wesley W. Horton and, on the brief, Eliot B. Gersten, Hartford, S. Dwight Stephens, pro hac vice, and Robert N. Reed, certified legal intern, for the appellee (defendant Konover Construction Corporation).

David P. Condon, New London, for the appellee (named defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.

PER CURIAM.

The plaintiff, Royal Indemnity Company (Royal Indemnity), brought this action against the defendants, Terra Firma, Inc. (Terra Firma),¹ and Konover Construction Corporation (Konover), seeking a judgment declaring that it was not obligated to defend or indemnify Konover for liability arising out of Konover's own negligence under an insurance policy (Royal Indemnity policy) that it had issued to Terra Firma. Thereafter, Konover filed a counterclaim against Royal Indemnity seeking, a judgment declaring that Royal Indemnity was obligated to defend and indemnify it.² Konover also filed a third party complaint against the third party defendant, United States Fire Insurance Company (United States Fire), seeking a judgment declaring that United States Fire had a duty to defend and indemnify Konover when the limits of the Royal Indemnity policy were exhausted under an insurance policy (United States Fire policy) that United States Fire had issued to Terra Firma.³ Konover subsequently filed a motion for partial summary judgment, claiming that it was entitled to coverage under the Royal Indemnity policy and the United States Fire policy as a matter of law.⁴ Royal Indemnity then filed a cross motion for partial summary judgment and an opposition to Konover's motion for partial summary judgment, claiming that, as a matter of law, it was not obligated to defend or indemnify Konover for liability arising out of Konover's work. United States Fire also filed a motion for summary judgment, claiming that it was entitled to judgment as a matter of law because Konover was not an insured under the United States Fire policy. The trial court rendered partial summary judgment for Konover on its counterclaim against Royal Indemnity and on its third party complaint against United States Fire, and denied the motions for summary judgment filed by Royal Indemnity and United States Fire. Royal Indemnity and United States Fire then filed these separate appeals,⁵ claiming that the trial court improperly rendered partial summary judgment in Konover's favor. We affirm the judgment of the trial court.

The trial court's memorandum of decision sets forth the following facts and procedural history. "On September 30, 1998, Konover, the general contractor for construction of a BJ's Wholesale Club in Willimantic, entered into a subcontract with [Terra Firma] under which [Terra Firma] was to perform site work including excavation. Two clauses of that contract are germane to the resolution of the current dispute. An indemnification and hold harmless clause provided that [Terra Firma] would indemnify Konover and hold it harmless for damages caused in whole or in part by the negligence of [Terra Firma]. A separate clause required [Terra Firma] to procure, inter alia, general liability insurance in the amount of not less than one million dollars and to name Konover as an additional insured. [Terra Firma] obtained such insurance in the amount of one million dollars per occurrence and two million dollars total from [Royal Indemnity] and excess insurance from [United States Fire]." Royal Indemnity Co. v. Terra Firma, Inc., 50 Conn.Sup. 563, 564-65, ___ A.2d ___ (2006). The policies defined an "`insured'" as any person named as an insured under the policies, "`but only with respect to liability arising out of ... "[Terra Firma's] work" ....'" Id., at 569, ___ A.2d ___.

"On October 30, 1999, during the effective dates of the Royal Indemnity and United States Fire policies, two employees of [Terra Firma], Richard Archambault and Dubie Sowell, were injured on the job. They subsequently brought personal injury actions against [Terra Firma] and Konover. Archambault alleged in his complaint that Konover was negligent because, inter alia, it: failed to provide `cave-in' protection; failed to ensure safe working conditions in breach of its nondelegable duty; failed to inspect the work site properly; failed to supervise independent contractors and their employees properly; and failed to enforce compliance with applicable regulations. Sowell's allegations were substantially similar.

"Both Sowell and Archambault included claims against [Terra Firma]. Summary judgment was granted in favor of [Terra Firma] in both actions in 2001, on the ground that there was no evidence of any intentional conduct or knowledge by the employer that injuries were `substantially certain' to occur. Workers' compensation was, then, the exclusive remedy available to the employees with respect to [Terra Firma].

"The cases against Konover were consolidated and wended their way toward trial. Shortly before trial, counsel for Sowell and Archambault submitted a motion in limine seeking to exclude evidence of negligence on the part of [Terra Firma]. Relying primarily on Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 776-77, 610 A.2d 1277 (1992), the trial court excluded evidence of [Terra Firma's] negligence. The court did, however, allow evidence of the conduct of [Terra Firma] and its duties and obligations. After receiving notice of this ruling, but during trial of the case, Royal Indemnity disclaimed both the duty to indemnify and the duty to defend, claiming that, because Sowell and Archambault could recover only as to negligence on the part of Konover, Konover could not be an...