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Mariano v. The Hartland Building and Restoration Co.

Court of Appeals of Connecticut

October 11, 2016

ANTHONY MARIANO ET AL.
v.
THE HARTLAND BUILDING AND RESTORATION COMPANY ET AL.

          Argued April 13, 2016

         (Appeal from Superior Court, judicial district of Waterbury, Shapiro, J.)

          Christopher A. Klepps, with whom was Donald W. Doeg, for the appellant (apportionment defendant Close, Jensen and Miller, P.C.).

          James E. Coyne, for the appellee (intervening plaintiff).

          DiPentima, C. J., and Mullins and Flynn, Js.

          OPINION

          DiPENTIMA, C. J.

         The 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.[1] 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 court.[2]

         The 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[3] and Martin J. Page (Martin), engineers associated with the Salem Bridge project.[4] The Mari-anos, then, brought a direct claim against Close and Martin.

         On May 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.

         On 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), [5] the exclusivity provision of the Workers' Compensation Act (act), General Statutes § 31-275 et seq.

         On May 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].''

         Approximately six weeks later, on July 8, 2013, pursuant to Practice Book § 10-60, [6] 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 circumstances'').

         On July 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.''

         In 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.'' ...


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