MARTIN FRANCHISES, INC.
COOPER U.S., INC
January 6, 2016.
to recover damages for breach of contract, and for other
relief, brought to the Superior Court in the judicial
district of Fairfield, where the court, Hon. Richard P.
Gilardi, judge trial referee, granted the plaintiff's
motion for summary judgment as to liability; thereafter,
following a hearing in damages, the court, Hon. Edward F.
Stodolink, judge trial referee, rendered judgment for the
plaintiff, from which the defendant appealed to this court;
subsequently, the court, Hon. Richard P. Gilardi, judge trial
referee, issued an articulation of its decision.
defendant appealed to this court from the trial court's
rendering of partial summary judgment for the plaintiff,
claiming that the trial court had improperly determined that
a hold harmless provision in a certain purchase agreement
obligated the defendant to defend and to indemnify the
plaintiff for liability that it might incur in a separate
product liability action that had been brought against it.
The plaintiff had entered into the purchase agreement with M
Co., the defendant's predecessor in interest, to purchase
certain assets relating to M Co.'s dry-cleaning business.
The hold harmless provision obligated the defendant to assume
liability for claims against the plaintiff that arose out of
M Co.'s products and operations prior to the date of the
agreement. Thereafter, P, a former employee of the plaintiff,
brought a product liability action against the plaintiff,
claiming that she contracted mesothelioma as a result of
exposure to asbestos that had been contained in a
dry-cleaning machine she used while employed by the
plaintiff. P alleged that the dry-cleaning machine was
stamped with a trade name that M Co. had used in connection
with a certain division of M Co. The plaintiff filed an
answer in which it stated that it had not been in existence
until fifteen years after the alleged time of P's
exposure to asbestos and had never manufactured products that
contained asbestos. Thereafter, the plaintiff brought this
third party action seeking contribution or indemnification
under the hold harmless provision for liability it might
incur as a result of P's action. The plaintiff alleged
that it had been incorporated at the time that it entered
into the agreement with M Co. and had purchased the trade
name as part of the agreement. The plaintiff further alleged
that a certain provision in the agreement specified that it
had not assumed product liability claims that related to
products manufactured, sold or shipped by M Co. prior to the
date of the agreement. The plaintiff claimed that the
dry-cleaning machine at issue in P's action had been
manufactured, sold and shipped prior to the date of the
purchase agreement, and, thus, could not have been
manufactured, sold or shipped by the plaintiff. Therefore,
the plaintiff claimed, the defendant was obligated to defend
and to indemnify it for any liability as a result of P's
action. As part of its motion for partial summary judgment,
the plaintiff submitted an affidavit by W, a corporate
officer of the plaintiff, in which W made certain averments
pertaining to the plaintiff's corporate history, and
stated that the plaintiff had no record of M Co.'s ever
having manufactured, distributed or sold any dry-cleaning
machine that contained asbestos. On appeal, the defendant
claimed that the trial court improperly rendered partial
summary judgment for the plaintiff. The defendant claimed
that because W's affidavit failed to show affirmatively
that she had personal knowledge of the substance of the
averments in her affidavit, the plaintiff had failed to
satisfy its burden of proving the nonexistence of any genuine
issue of material fact as to whether the hold harmless
provision obligated the defendant to defend and to indemnify
the plaintiff in connection with P's action.
Held that the trial court erred in rendering partial
summary judgment for the plaintiff, W's affidavit having
failed to show the nonexistence of a genuine issue of
material fact as to whether the purchase agreement's hold
harmless provision obligated the defendant to defend and to
indemnify the plaintiff in connection with P's action:
the affidavit contained no affirmative showing that W had
personal knowledge of and was competent to testify about the
plaintiff's past relationship with M Co., the trade name,
or the company division from which the plaintiff had acquired
the trade name, that W had reviewed business records relative
to M Co., that M. Co. had used the trade name to market
products, or that M Co. had manufactured, sold or shipped
dry-cleaning products bearing the trade name; moreover, the
trial court's reliance on W's affidavit was harmful
to the defendant, as the other proof that the plaintiff had
submitted in support of its motion for partial summary
judgment did not establish that there was no genuine issue as
to whether a dry-cleaning machine that P allegedly had been
exposed to bore the trade name on it, contained asbestos, or
was manufactured, sold and shipped by M Co. or its
predecessors prior to the date of the purchase agreement.
F. Connors, for the appellant (defendant).
D. Miltenberger, for the appellee (plaintiff).
Keller and Lavery, Js. KELLER, J. In this opinion the other
Conn.App. 488] KELLER, J.
defendant, Cooper U.S., Inc., appeals following the trial
court's rendering of summary judgment in favor of the
plaintiff, Martin Franchises, Inc. On appeal, the defendant
claims that the court erred in rendering summary judgment in
favor of the plaintiff on the following two grounds: (1) the
court improperly concluded that there was no genuine issue of
material fact; and (2) the court held the defendant to an
incorrect burden of proof in its opposition to the
plaintiff's motion for summary judgment. We reverse the
trial court's judgment and remand the case to that court
with direction to deny the plaintiff's motion for summary
judgment and to conduct further proceedings according to law.
resolution of this appeal is informed by the following
procedural history. This controversy arose from LaVerne
Perezi's contraction of mesothelioma and her subsequent
commencement of a product liability action (Perezi action),
in August, 2012, against numerous defendants, one of which
was the plaintiff in the present appeal. Thereafter, on
February 19, 2013, the plaintiff in the present appeal filed
a motion to implead the defendant in the present appeal,
claiming that the defendant was, or may have been, liable for
all or part of Perezi's claim. On this same date, the
plaintiff also filed its answer, in which it claimed that it
" did not exist at the time of [Perezi's] exposure
to asbestos" and that it " never manufactured any
products that contained any type of asbestos." On March
4, 2013, the court, Bellis, J., granted the plaintiff's
motion to implead the defendant. The plaintiff then served
the defendant with a complaint, which it labeled "
Third-Party Complaint," and [164 Conn.App. 489] for
reasons unknown to the parties and to this court, the action
was assigned a separate docket number. This complaint is the
operative complaint in the present appeal.
in her three count complaint, alleged in the first count that
" [e]ach of the defendants, and/or their predecessors in
interest . . . has produced, manufactured or distributed
asbestos and/or asbestos products,"  and that these
products caused her to contract mesothelioma.
plaintiff's complaint against the defendant contained two
counts, the first of which sounded in breach of contract and
the second of which sounded in contribution and/or
indemnification. In the complaint, the plaintiff alleged the
" On May 1, 1978, [the plaintiff] entered into an
agreement (the '1978 Agreement') with
McGraw-Edison, a predecessor in interest to [the
defendant], (the 'Seller'), to purchase certain
assets from McGraw-Edison relating to McGraw-Edison's
dry-cleaning business. . . .
" Pursuant to the 1978 Agreement, [the plaintiff]
acquired said assets of [McGraw-Edison], the Seller. . . .
" Under the 1978 Agreement, [McGraw-Edison], the
Seller, assumed and retained all liability for any
subsequent claims made against [the plaintiff] or its
successors based upon or arising out of
[McGraw-Edison's] [164 Conn.App. 490] products and
operations that occurred prior to May 1, 1978. . . .
" Under the 1978 Agreement, [the defendant, as
successor in interest to McGraw-Edison], is contractually
obligated to defend and indemnify [the plaintiff] for the
claim submitted by . . . LaVerne Perezi in the [Perezi]
action. . . .
" [The plaintiff] has repeatedly requested that [the
defendant] defend and indemnify [the plaintiff] in the
[Perezi] action, but [the defendant] has refused to do
In the first count of the complaint, the plaintiff further
alleged that " [Perezi] alleges that she was injured
as a result of exposure to products at a dry-cleaning
facility in the early 1960s. Under the terms and conditions
of the 1978 Agreement, [the defendant] is contractually
obligated to defend and indemnify [the plaintiff] with
respect to the claims for relief asserted against [the
plaintiff] in the [Perezi action]. . . .
" [The plaintiff] has demanded that [the defendant]
indemnify it for all defense costs, settlements, judgment
or other damages, losses, or expenses incurred by [the
plaintiff] as a result of the claims for relief asserted
against [the plaintiff] in the [Perezi] action. . . .
" [The plaintiff] has fully performed all of its
obligations under the 1978 Agreement. . .
" Despite [the plaintiff's] demand, [the
defendant] has refused to perform its contractual
In the second count of the complaint, the plaintiff further
alleged the following:
" Any negligence on behalf of [the plaintiff] was
passive and secondary, while [the defendant's]
negligence was active and primary. . . .
[164 Conn.App. 491] " To the extent [the plaintiff] is
held liable for any portion of [Perezi's] damages, if
any, [the plaintiff] is entitled to contribution or
indemnification from [the defendant] for the entire amount,
plus costs and interest."
September 5, 2014, the plaintiff filed a motion for partial
summary judgment, alleging, inter alia, that there was no
genuine issue of material fact as to whether the defendant
was obligated to indemnify the plaintiff and defend it in the
Perezi action pursuant to the language in the 1978 agreement
between the plaintiff and McGraw-Edison, the defendant's
predecessor in interest. Specifically, the plaintiff alleged
in its memorandum of law in support of the motion that on May
1, 1978, it had been incorporated and that it had entered
into a purchase agreement by which it agreed to purchase
certain assets from the defendant's predecessor in
interest, McGraw-Edison. The plaintiff also stated that in
April, 1985, the defendant had acquired McGraw-Edison,
thereby making the defendant a successor in interest with
respect to the 1978 agreement. The plaintiff alleged that
pursuant to the 1978 agreement, it had purchased a plant
facility in Ohio from McGraw-Edison, as well as a trade name,
" Martin," which McGraw-Edison had used in
connection with a division of the company known as "
Martin Equipment Sales." The plaintiff further alleged
that section 5.1 of the 1978 agreement provided that it had
agreed to assume certain liabilities of McGraw-Edison, but
that this section also specified certain liabilities that it
had not assumed from McGraw-Edison. In this vein, the
plaintiff indicated that section 5.1 of the 1978 agreement
specifically provided that the plaintiff had not assumed
" any liabilities or obligations, whether contingent or
absolute, accrued or unaccrued, or known or unknown, for . .
. product liability claims that relate to any products
manufactured, sold and shipped by McGraw-Edison . . . or its
predecessors prior to [164 Conn.App. 492] the Closing . . .
." (Emphasis omitted.) The plaintiff further stated that
section 14.9 of the 1978 agreement provided that the
defendant, as successor in interest to McGraw-Edison, had
agreed to pay all costs and expenses that the plaintiff would
incur if it were to be named as a defendant in a lawsuit
relating to any liability retained by the defendant pursuant
to section 5.1 of the 1978 agreement.
memorandum of law in support of its motion, the plaintiff
also alleged that Perezi had claimed in her action that
" she could have come into contact with
asbestos-containing products directly and through secondary
exposure from two of her husbands." Furthermore, on the
basis of Perezi's and her son's deposition testimony
and pleadings in the Perezi action, the plaintiff alleged the
following about the Perezi action: " With respect to
[the plaintiff], [Perezi] alleges liability [for her
contraction of mesothelioma] based upon her work, and her
former husband's work, at a dry-cleaning facility. . . .
Perezi ceased working at the dry-cleaning facility in
1963--fifteen years before [McGraw-Edison, the
defendant's predecessor in interest] sold assets and the
trade name to [the plaintiff]. . . . The only piece of
equipment in the facility that . . . Perezi can link to [the
plaintiff] is a dry-cleaning machine." (Citations
omitted.) The plaintiff also argued that because the 1978
agreement was an unambiguous contract that had been entered
into by two sophisticated commercial entities, the court must
enforce the agreement's terms as written. Thus, the
plaintiff referred to the language in section 5.1 of the 1978
agreement and argued that it was " undisputed" ...