Sandella v. Dick Corp.

• Decision Date: 11 May 1999
• Docket Number: (AC 17504)
• Citation: 729 A.2d 813,53 Conn. App. 213
• Court: Connecticut Court of Appeals
• Parties: ALBERT SANDELLA ET AL. v. DICK CORPORATION ET AL.

53 Conn. App. 213

729 A.2d 813

ALBERT SANDELLA ET AL. v. DICK CORPORATION ET AL.

(AC 17504)

Appellate Court of Connecticut.

Argued January 21, 1999.

Officially released May 11, 1999.

Schaller, Spear and Healey, Js.

Vincent J. Dowling, for the appellant (defendant Maguire Group, Inc.). Karen K. Clark, with whom, on the brief, was Frank K. Usseglio, for the appellee (defendant Metcalf & Eddy).

Opinion

SCHALLER, J.

This appeal arises from the judgment on a cross claim for indemnification. In the main action, a jury found the defendant Dick Corporation and the defendant cross claimant, Metcalf & Eddy,¹ liable to the plaintiffs, Albert Sandella and his wife, Cheryl Sandella, for injuries sustained by the named plaintiff, an employee of the town of North Haven, in a slip and fall that occurred while he was working at a wastewater treatment plant in that town in July, 1990. The cross claim defendant, Maguire Group, Inc. (Maguire), appeals from the judgment rendered after the second phase of a bifurcated jury trial holding Maguire liable to Metcalf & Eddy on a claim for indemnification arising from a contract to indemnify and hold harmless.² Maguire claims that the trial court improperly (1) failed to set aside the jury's verdict and to render a directed verdict in its favor, (2) failed to find, as a matter of law, that Metcalf & Eddy was not entitled to indemnification and (3) failed to find, as a matter of law, that the indemnity agreement was void as a matter of public policy pursuant to General Statutes § 52-572k. We affirm the judgment of the trial court. The following facts are necessary to the resolution of this appeal. On November 25, 1986, the town of North Haven (town) entered into a contract with Maguire for services related to the construction and renovation of its wastewater treatment plant. Maguire's function was to design the facility and to administer the contract. Dick Corporation was hired by the town as the general contractor and, as such, was responsible for the construction and modification of the plant. During the construction process, the town was to maintain operation and control of the plant.

At the beginning of construction, Tom Weston was the town employee in charge of the plant's operation. He held the requisite grade four license to operate the plant. In approximately March, 1990, after the construction on the plant had begun, Weston resigned. Maguire did not have any employees who had the state license required to operate the plant. As a courtesy to the town, Maguire contacted Metcalf & Eddy Services, Inc. (Services, Inc.).³ Services, Inc., was in the business of operating wastewater treatment facilities. Services, Inc., employed Ronald Collins, who held the grade four license required to operate the plant. Services, Inc., and Maguire entered into negotiations regarding Collins' services. On March 29, 1990, Services, Inc., sent a proposal to Maguire indicating that Collins was available on a short-term basis, and that Services, Inc., would be willing to contract out his services to Maguire.⁴ Maguire never signed and returned the letter confirming Services, Inc.'s conditions as had been requested. Collins, however, had begun working at the plant on March 5 or 6, 1990. He continued to work at the plant until August 1 or 2, 1990. Even though Maguire never signed or responded to the March 29 letter, it did pay Services, Inc., in accordance with the terms of that letter.

On July 19, 1990, the named plaintiff slipped and fell while at work, suffering serious injuries. The plaintiffs filed their summons and complaint on July 24, 1992, naming Dick Corporation, Maguire and "Metcalf & Eddy" as defendants. The cross claimant, Metcalf & Eddy, sent a letter to Maguire notifying it that, pursuant to the indemnification agreement of March 29, 1990, Metcalf & Eddy would be expecting indemnification from any liability and reimbursement of reasonable attorney's fees. Metcalf & Eddy subsequently filed a cross claim against Maguire on August 24, 1993. After a jury trial, Metcalf & Eddy was found liable to the plaintiffs for $213,844. In the second phase of the trial, the jury found that Maguire was liable to Metcalf & Eddy for $298,000.

Maguire made postverdict motions to set aside the verdict, for a directed verdict and for remittitur of a portion of the award. The trial court denied Maguire's postverdict motions. This appeal followed.

I

Maguire first claims that the trial court improperly denied its motion to set aside the verdict and motion for a directed verdict because the jury could not reasonably have found that an indemnification contract existed between Maguire and Services, Inc. We disagree.

The standard for reviewing the denial of a motion to set aside the verdict and motion for directed verdict on evidentiary grounds is clear. "Our review of the trial court's refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony.... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.... Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988)." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 277, 698 A.2d 838 (1997). "While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury." (Internal quotation marks omitted.) Sheridan v. Desmond, 45 Conn. App. 686, 691, 697 A.2d 1162 (1997).

Maguire claims that it never entered into a contract for indemnification with Services, Inc., or any other Metcalf & Eddy entity.⁵ After a thorough review of the evidence, we conclude that the jury reasonably could have found that Maguire did enter into an indemnification contract.

While Metcalf & Eddy does not argue that Maguire and it entered into an express contract, Metcalf & Eddy does claim that an implied contract existed between them. "A true implied contract can only exist where there is no express one. It is one which is inferred from the conduct of the parties though not expressed in words." Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668 (1930). "It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations.... Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact which, like any other findings of fact, may be overturned only if the trial court's determinations are clearly erroneous." (Citation omitted; internal quotation marks omitted.) Homecare, Inc., v. Acquarulo, 38 Conn. App. 772, 775, 663 A.2d 412 (1995).

The jury had before it testimony that Collins was sent to the plant prior to the March 29 letter and that, even without an express agreement in place, Maguire paid for Collins' services in accordance with the terms set out in the March 29 letter. See footnote 4. Furthermore, the jury heard testimony that Alan Asikainen, Maguire's vice president, never sent any correspondence accepting or rejecting the conditions of the March 29 letter. "[S]ilence may constitute acceptance of an offer if the offeree, by his words or conduct, leads the offeror reasonably to interpret that silence as such. 1 Williston, Contracts (3d Ed. Jeager) § 91C; Blakeslee v. Water Commissioners, [121 Conn. 163, 183 A. 887 (1936)]. Whether such conduct took place so as to create a contract is a question of fact." John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 710, 448 A.2d 180 (1982). The March 29 letter was admitted as a full exhibit, and the jury had the letter when it deliberated the second phase of the trial. The jury reasonably could have determined that, given the circumstances surrounding the March 29 letter, Maguire's failure to decline the conditions was an implied acceptance of its conditions. Additionally, the jury had as exhibits letters from Maguire to Services, Inc., and from Metcalf & Eddy to Maguire referencing Collins' services and the March 29 letter.

A letter from Maguire to Services, Inc., dated July 30, 1990, indicated that Maguire thanked Services, Inc., for providing Collins' services on short notice. The tenor of the July 30 letter, however, was to inform Services, Inc., that Collins' services would not be needed beyond August 3, 1990.

The letter from Metcalf & Eddy dated August 21, 1992, and signed "J. Alan MacKay, Counsel" states: "On March 29, 1990, our companies entered into an agreement pursuant to which we provided an interim plant manager for the North Haven wastewater treatment facility between March 5, 1990 and August 3, 1990. We have recently been served with a complaint filed by Albert Sandella against Dick Corporation, Maguire Group, Inc., and ourselves. Under the provisions of the March 29, 1990 agreement, Maguire indemnified Metcalf & Eddy from any liability including reasonable attorney's fees, arising out of our performance of services under the agreement. Since we will be looking to you to reimburse us for any attorney's fees that may be incurred, I suggest you have your legal counsel contact me to discuss the conduct of the defense." There was no testimony before the jury that indicated that anyone from Maguire responded either affirmatively or negatively to the August 21 letter.

Perhaps the most telling exhibit before the jury was the copy of Metcalf & Eddy's cross claim dated August 12, 1993, and Maguire's answer dated October 19, 1993. In the cross complaint, Metcalf & Eddy alleged: ...