Szymanska v. University of CT Health Center

Krystyna Szymanska v. University of CT Health Center

No. HHDCV146048550S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

July 27, 2017

UNPUBLISHED OPINION

RULING RE MOTION FOR SUMMARY JUDGMENT ##136 AND 138.00

M Nawaz Wahla, J.

ISSUE

The issue is whether the third party plaintiffs, the University of Connecticut Health Center-John Dempsey Hospital and the state of Connecticut, or the third party defendant, ISS Facility Services, Inc., is entitled to summary judgment on count one of the third party complaint, which sounds in contractual indemnification, and count two of the third party complaint, which sounds in breach of contract. It is ordered that, count one of the third party complaint, the third party plaintiffs' motion for summary judgment is granted and the third party defendant's summary judgment motion is denied, and, as to count two, the third party plaintiffs' motion for summary judgment is denied.

FACTS

The present action arises from a dispute between the plaintiff Krystyna-Szymanska, and the defendants, the University of Connecticut Health Center John Dempsey Hospital and the state of Connecticut (collectively, the state), regarding alleged personal injuries that the plaintiff suffered as a result of a trip and fall accident. On March 19, 2014, the plaintiff filed an amended complaint, which is the operative complaint against the state. The amended complaint consists of a single count that sounds in negligence on a theory of premises liability.

In the amended complaint, the plaintiff alleges the following facts. On or about July 30, 2010, at approximately 11:30 p.m., the plaintiff exited the " main building" of the John Dempsey Hospital at the University of Connecticut Health Center (hospital). She proceeded to walk to her automobile, which was parked in the hospital's " AR" parking lot. As she was walking to her car, the plaintiff tripped on a portion of metal pipe or pole that was projecting out of the walkway. Consequently, the plaintiff fell to the ground and sustained physical injuries, which were proximately caused by the state's negligence. Accordingly, the plaintiff claims, inter alia, money damages.^[1]

Subsequently, on April 17, 2014, the state filed an answer and special defense to the plaintiff's amended complaint. In its special defense, the state alleges comparative negligence against the plaintiff. On April 22, 2014, the plaintiff filed a reply to the state's special defense, in which she affirmatively denied the state's allegations of comparative negligence.

Moreover, on July 30, 2014, the state filed a motion to implead ISS Facility Services, Inc. (ISS) pursuant to General Statutes § 52-102a and Practice Book § 10-11.^[2] The court, Robaina J., granted the motion on September 8, 2014. In turn, on September 19, 2014, the state filed a third party complaint, which is the operative third party complaint, against ISS. The third party complaint is comprised of two counts that sound in contractual indemnification and breach of contract, respectively.

In both counts of the third party complaint, the state alleges the following facts. On approximately August 27, 2009, the state entered into a contractual agreement (contract) with ISS, pursuant to which ISS would provide cleaning services at the hospital. The term of the contract spanned a period of five years: October 1, 2009 through September 30, 2014. The contract provides that ISS is required to indemnify and defend the state " from and against any and all . . . claims arising directly or indirectly, in connection with the [c]ontract . . ." The contract also provides that ISS must " carry and maintain at all times during the term of the [c]ontract . . . sufficient general liability insurance to satisfy its obligations under this [c]ontract. [ISS] shall name [t]he [hospital], the [s]tate of Connecticut, and their officers, officials, employees, agents, boards and commissions' as additional insureds on the policy and shall provide a certificate of insurance reflecting same to [the hospital] prior to the effective date of the [c]ontract." ^[3]

At the time of the alleged trip and fall accident, the plaintiff was an employee of ISS and the contract was in full force and effect. Thus, under the contract, " the [s]tate is entitled to be defended by ISS and if the [s]tate is liable to the plaintiff, which the [s]tate denies, the [s]tate is entitled under the terms of the [contract] to [recover] and be indemnified by ISS to the full extent of any such liability and all expenses attendant thereto." Consequently, on approximately March 5, 2014, the state sent a letter to the vice president of ISS, Bonnie Maguire, demanding indemnification with respect to the plaintiff's claim, pursuant to the contract. Similarly, the state sent a letter to ISS' liability insurer, Liberty Mutual Insurance Company (insurer), notifying it of the plaintiff's claim and demanding that it defend the state in the present case, pursuant to the contract. Both ISS and the insurer have failed to indemnify and/or defend the state in connection with the present action. The state alleges that " [s]uch a failure is a breach of [ISS'] obligations under the [c]ontract to insure, indemnify, defend and save the [s]tate harmless in connection with the plaintiff's claims."

On May 29, 2015, ISS filed an amended answer and special defenses to the state's third party complaint. In the amended answer, ISS admitted, inter alia, the existence of the contract, the specifications of the contract with respect to indemnification and 'defending claims, and that the contract was in effect on the day that the alleged trip and fall accident occurred. However, it denied, inter alia, that the plaintiff was an employee of ISS at the time of the alleged trip and fall accident. ISS also denied that it is required to defend the state from the plaintiff's claim and that it must indemnify the state to the extent that the state is held liable for the plaintiff's alleged injuries. The state filed a reply to ISS' special defenses on May 10, 2016.

Subsequently, on January 6, 2017, ISS filed a motion for summary judgment as to both counts of the state's third party complaint. A memorandum of law accompanies ISS' summary judgment motion. In support of its motion, ISS submits the following documents: (1) uncertified excerpts from the transcript of the plaintiff's deposition testimony; (2) a copy of the contract; and (3) a copy of the state's third party complaint. On the same date, the state filed a motion for summary judgment as to both counts of its third party complaint. A memorandum of law accompanies the state's summary judgment motion. In support of its motion, the state submits the following documents: (1) a copy of the contract; and (2) uncertified excerpts from the transcript of the plaintiff's deposition testimony.^[4]

On February 21, 2017, the state filed a memorandum of law in opposition to ISS' motion for summary judgment. Similarly, on March 9, 2017, ISS filed an objection to the state's motion for summary judgment. Oral argument was heard at short calendar on May 8, 2017.

DISCUSSION

" Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the 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.) Al Dente, LLC v. Consiglio, 171 Conn.App. 576, 587, 157 A.3d 743 (2017). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . The test is whether a party would be entitled to a directed verdict on the same facts." Mariano v. Hartland Building & Restoration Co., 168 Conn.App. 768, 777, 148 A.3d 229 (2016). " 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. The courts hold the movant to a strict standard. 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Brooks v. Powers, 165 Conn.App. 44, 56, 138 A.3d 1012 (2016).

ISS claims that it is entitled to summary judgment on both counts of the third party complaint. In support of this claim, ISS first argues that, under the contract, it is not required to indemnify, defend, and hold the state harmless from the plaintiff's claim. With respect to this point, ISS argues that the plaintiff's claim does not arise " in connection with the [c]ontract" because none of her job duties required her to be in the hospital's parking lot at the time of the alleged accident. According to ISS, the nexus between the plaintiff and the contract ceased to exist once the plaintiff completed her job duties. In other words " where the plaintiff parked her car for the purpose of entering and exiting [the hospital] was completely outside the scope of the [c]ontract." Also in support of its claim, ISS further argues that, under the contract, it is not required to indemnify, defend, and hold the state harmless from the state's own acts or...