Town of Fairfield v. D'Addario

• Citation: 179 A.2d 826,149 Conn. 358
• Court: Supreme Court of Connecticut
• Decision Date: 16 March 1962
• Parties: TOWN OF FAIRFIELD v. F. Francis D'ADDARIO. Supreme Court of Errors of Connecticut

Page 826

179 A.2d 826

149 Conn. 358

TOWN OF FAIRFIELD v. F. Francis D'ADDARIO.

Supreme Court of Errors of Connecticut.

March 16, 1962.

Philip H. Smith, Bridgeport, with whom were Peter Wilkinson, Bridgeport, and, on the brief, John J. Darcy, Bridgeport, for the appellant (plaintiff).

Irwin E. Friedman, Bridgeport, with whom was Arthur Levy, Jr., Bridgeport, for the appellee (defendant).

Argued Nov. 7, 1961, before BALDWIN, C. J., KING, SHEA and ALCORN, JJ., and COMLEY, Superior Court Judge.

Reargued March 6, 1962, before Baldwin, C. J., and King, Shea and Alcorn, JJ. ^*

BALDWIN, Chief Justice.

The town of Fairfield brought this action against F. Francis D'Addario, doing business as The D'Addario Construction Company, to recover $5750, with interest and attorneys' fees, expended by the town in the settlement of an action for personal injuries brought against it by Edmund Kant.

The material findings of the trial court can be stated in summary as follows: On February 10, 1951, the town entered into a contract with D'Addario to construct a sewerage system. The contract provided that D'Addario would indemnify the town against loss or damage arising out of any cause connected with the contract, save the town harmless from all claims and liability for any loss, damage or injury sustained by any person by reason of, or in any way arising out of, the contract, and defend any suit brought against the town by reason of, or connected with, the work or materials furnished. ¹ On May 11, 1953, Edmund Kant brought an action against the town to recover for personal injuries allegedly suffered by him on March 21, 1953, because of a defective highway in an area where D'Addario had been working. Kant v. Fairfield, Superior Court, Fairfield County, No. 89886. Kant alleged that the roadway was broken and uneven and contained a deep hole and depression, and also that a manhole cover was elevated above the road surface. A police investigation of the alleged occurrence was completed and a report made to the town counsel on or about May 14, 1953. This report called attention to D'Addario's operations on the highway and stated that the manhole referred to in Kant's complaint had been constructed by D'Addario. On June 2, 1953, the town counsel entered an appearance in court in Kant's action. The town failed to give D'Addario any notice of Kant's claim or of his suit until June 22, 1956, when the town requested that D'Addario assume the defense of Kant's action and hold the town harmless from all liability therefor. On several occasions thereafter, up to February 8, 1957, this request was repeated, but D'Addario refused. On February 8, 1957, the town stipulated with Kant that in his action a judgment of $5750 would be entered in his favor.

On these facts, the court concluded that the Kant action arose out of the contract between the town and D'Addario, that D'Addario was prejudiced by reason of the fact that the town did not notify him of the Kant action until three years had elapsed, and that the notice given then was not given within a reasonable time. Judgment was rendered for D'Addario, and the town has appealed.

The crucial questions in the case are (1) whether the town was required, under the terms of the indemnity provision, to give any notice of Kant's action to D'Addario, and (2) whether, if it was, the notice given was timely. As to the time when a cause of action accrues under a contract of indemnity, such contracts can be broadly classified as those which indemnify against liability and those which indemnify against loss. In the former, the cause of action arises as soon as the liability of the indemnitee is incurred; in the latter, the cause of action arises when the indemnitee has actually incurred the loss. Calamita v. DePonte, 122 Conn. 20, 23, 187 A. 129, and cases cited. The trial court construed the indemnity provision here to be one against liability. That conclusion is not challenged. The construction is a permissible one. Under the terms of the agreement, D'Addario had two obligations: (1) to defend the action, and (2) to pay the damages if any were recovered. This agreement was unlike the usual indemnity agreement in that both of these obligations were undertaken and were inextricably interwoven. The obligation to defend arose when Kant's action was brought.

The agreement contains no specific language requiring the town to give D'Addario notice of any action brought against it which it might claim arose out of the contract. But the parties could not have contemplated otherwise than that such notice would be given. The construction of the sewerage system was a broad undertaking necessitating the...