ANTHONY MARIANO ET AL.
THE HARTLAND BUILDING AND RESTORATION COMPANY ET AL.
April 13, 2016
from Superior Court, judicial district of Waterbury, Shapiro,
Christopher A. Klepps, with whom was Donald W. Doeg, for the
appellant (apportionment defendant Close, Jensen and Miller,
E. Coyne, for the appellee (intervening plaintiff).
DiPentima, C. J., and Mullins and Flynn, Js.
DiPENTIMA, C. J.
apportionment defendant Close, Jensen and Miller, P.C.
(Close), appeals from the summary judgment rendered in favor
of the intervening plaintiff, Brunalli Construction Company
(Brunalli), on Close's counterclaim. On appeal, Close
claims that the trial court erred in (1) concluding that
Brunalli carried its initial burden of proving the
nonexistence of any genuine issue of material fact and (2)
determining that the affidavit submitted by Close in support
of its opposition to Brunalli's motion for summary
judgment failed to demonstrate the existence of an issue of
material fact. We agree with the first claim of Close and
therefore reverse the judgment of the trial
record before the court, viewed in the light most favorable
to Close as the nonmoving party, reveals the following facts
and procedural history. The underlying action arose from the
June 15, 2010 collapse of the Salem Bridge in Naugatuck,
which occurred as work was underway to demolish the bridge.
At the time of the incident, Anthony Mariano (Anthony) was
employed by Brunalli, which had entered into a contract with
the state to serve as the general contractor on the project
to demolish the Salem Bridge (prime contract). Nearly a year
after the collapse, in July, 2011, the plaintiffs, Anthony
and Shirley Mariano (Marianos), initiated an action against
the defendants The Hartland Building & Restoration
Company (Hartland) and Witch Enterprises, Inc., both of which
were Brunalli's subcontractors, alleging that Anthony had
sustained personal injuries as a result of the collapse.
Shortly after commencing this action, Brunalli filed an
intervening complaint, pursuant to General Statutes §
31-293, seeking reimbursement for the workers'
compensation benefit payments it paid to Anthony as a result
of his injuries. In late 2011, Hartland filed an
apportionment complaint against Close and Martin J. Page (Martin),
engineers associated with the Salem Bridge
project. The Mari-anos, then, brought a direct
claim against Close and Martin.
10, 2012, Close filed a counterclaim against Brunalli.
Relevant to this appeal, Close alleged that, pursuant to
‘‘its agreement'' with the state, it
reviewed the demolition plan and a temporary support plan
that Brunalli submitted to the state. According to Close,
Brunalli and/or its subcontractors negligently performed
their work in connection with the demolition of the Salem
Bridge. Close also alleged that Brunalli, by
‘‘failing to adhere to the . . . demolition plan
and/ or the . . . temporary support plan and/or failing to
ensure that its subcontractors adhered to the . . .
demolition plan and/or the . . . temporary support plan was
the active and primary cause of the damages, if any, suffered
by [the Marianos] and superseded any passive negligence on
the part of [Close], if any.'' Thus, because of
Brunalli's various purported failures, Close alleged that
Brunalli had a common-law duty to indemnify and hold harmless
Close to the extent that the Marianos prevailed on their
claims against Close.
August 30, 2012, Brunalli filed its answer and special
defense to Close's counterclaim. Pertinent to this
appeal, Brunalli denied any negligence and claimed that
Close's counterclaim was barred by General Statutes
§ 31-284 (a),  the exclusivity provision of the
Workers' Compensation Act (act), General Statutes §
31-275 et seq.
24, 2013, Brunalli filed a motion for summary judgment on
Close's counterclaim for indemnification. It argued that
Close's counterclaim failed, as a matter of law, because
no independent legal duty existed between Brunalli and Close.
In support of the motion for summary judgment, Brunalli
attached an affidavit from James Needham, vice president for
Brunalli. Needham averred that Brunalli and Close
‘‘never entered into a written
agreement'' concerning the Salem Bridge project.
Thus, in its memorandum of law in support of its motion for
summary judgment, Brunalli argued that Close's
allegations in its counterclaim had ‘‘fail[ed] to
establish the independent legal duty necessary to overcome
the exclusivity provision of the [act].''
six weeks later, on July 8, 2013, pursuant to Practice Book
§ 10-60,  Close filed a request for leave to amend
its counterclaim with the amended counterclaim appended
(amended counterclaim). Close alleged that under the terms of
Brunalli's prime contract with the state, Brunalli was
obligated to perform its work with due care. Moreover, Close
alleged in the amended counterclaim that on or about April,
2008, Close and the state had entered into a consulting
agreement ‘‘whereby [Close] agreed to act as the
state's consulting liaison engineer with regard to state
and local bridge programs, '' including the Salem
Bridge project. According to Close, both the consulting
agreement, which was between the state and Close, and the
prime contract, which was between Brunalli and the state,
‘‘incorporate[d] by reference the state . . .
Department of Transportation standard for roads, bridges and
incidental construction [standard specifications].''
Thus, Close alleged that the standard specifications
established that Brunalli had a duty to
‘‘indemnify and save harmless, the [s]tate, the
Department [of Transportation] and all of its officers,
employees, and agents from all suits, actions or
claims of any character, name or description brought for or
on account of any injury or damage caused to any person or
property as a result of, in connection with, or pursuant to
the performance of the [prime] contract.'' (Emphasis
added; internal quotation marks omitted.) Close reasoned that
the consulting agreement created an agency relationship
between the state and itself. Therefore, Brunalli, pursuant
to the standard specifications, was obligated to indemnify
Close as an agent of the state, because Close was a third
party beneficiary of the prime contract. The remainder of the
amended counterclaim largely repeated the allegations from
the original counterclaim. Brunalli did not oppose the
request for leave to amend the counterclaim; hence, the
amended counterclaim became the operative pleading during the
pendency of the motion for summary judgment. See Darling
v. Waterford, 7 Conn.App. 485, 487, 508 A.2d
839 (1986) (if opponent fails to object to proposed amendment
within fifteen days, amendment is automatically allowed, and
‘‘[t]he trial court ha[s] no discretion, at that
time, to deny the request, absent extraordinary
10, 2013, Close filed its objection to Brunalli's motion
for summary judgment, claiming that Brunalli had failed to
establish that there were no genuine issues of material fact
as to whether Close's amended counterclaim was barred by
the exclusivity provision of the act. It argued that
‘‘Brunalli's motion for summary judgment
ignore[d] the parties' contractual relationships, which
create[d], at least, a question of fact as to whether an
independent legal duty existed between [Close] and
Brunalli.'' Specifically, Close directed the
court's attention to the amended counterclaim, in which
Close alleged that ‘‘it [was] the third party
beneficiary of the prime contract's indemnification
provision by virtue of an agency relationship created by the
consulting agreement.'' According to Close, because
the term ‘‘agent'' in the subject
indemnity provision was undefined, and Close and the state
‘‘understood'' that Close was an agent of
the state, ‘‘whether [Close was] a third party
beneficiary of the prime contract by virtue of an agency
relationship with the state [was], at least, a question of
material fact that a jury must determine.''
support of its objection to Brunalli's motion for summary
judgment, Close appended an affidavit from Thomas M. Ryan,
its director of engineering. Ryan averred that he not only
had personal knowledge of the consulting agreement between
Close and the state, but also that he had personal knowledge
of the work Close performed, pursuant to the consulting
agreement, in connection with the Salem Bridge project. He
also averred that ‘‘[d]uring the course of [the]
contractual relationship with the [s]tate, [Close] was
understood by both the [s]tate and [Close] to be the
[s]tate's agent.'' ...