United States District Court, D. Connecticut
HOMESITE INSURANCE COMPANY, a/s/o Margaret Lofrumento, and MARGARET LOFRUMENTO, individually, Plaintiffs,
TRIANGLE TUBE/PHASE III CO. INC., Defendant.
RULING ON DEFENDANT'S MOTION FOR LEAVE TO JOIN
THIRD PARTY DEFENDANT, HOFFMAN FUEL COMPANY OF DANBURY [DOC.
CHARLES S. HAIGHT, JR. Senior United States District Judge.
Homesite Insurance Company and Margaret Lofrumento
(collectively "Plaintiffs") commenced this product
liability action against Triangle Tube/Phase III Co., Inc.
("Triangle Tube"), alleging that a water tank it
manufactured failed, resulting in a "significant water
loss" at Lofrumento's property in Brookfield,
Connecticut, on November 19, 2014. Doc. 1
("Complaint"), ¶ 8. In particular, Lofrumento
and Homesite, the insurer of Lofrumento's Brookfield
property, allege that "the failure of the 35 gallon
Triangle Tube water tank" was due to corrosion that
occurred "less than three years" after the tank was
in service - i.e., "within the warranty and
useful life period for this water heater." Id.,
¶¶ 8- 9. Plaintiffs bring this claim under
Connecticut's product liability statute, Conn. Gen. Stat.
§ 52-572m, et seq., asserting that the
"water tank was in a defective and unreasonably
dangerous condition." Id., ¶ 14(a).
Plaintiffs further allege that the tank was designed and
manufactured in a condition which subjected Lofrumento to
"an unreasonable risk of harm;" and the tank was
"not merchantable" or fit for its intended and
foreseeable use. Id., ¶¶ 14 (b)-(c).
respect to damages, pursuant to the terms and conditions of
the Homesite insurance contract issued to Lofrumento (Policy
No. 31345716), Homesite paid Lofrumento in excess of $132,
406.32 for the water damage to the Brookfield property.
Id., ¶¶ 7, 10. Homesite claims that
"pursuant to the contract of insurance and by operation
of law, " it is "subrogated to the rights of Ms.
Lofrumento against all parties responsible for the occurrence
of said damages" due to failure of the water tank.
Id., ¶ 10. In addition to the payments made by
Homesite, Lofrumento incurred $79, 721.66 in damages and
costs to repair her property. Id., ¶ 11.
before the Court is Triangle Tube's motion, pursuant to
Rule 14(a), Fed. R. Civ. P., requesting leave to join Hoffman
Fuel Company of Danbury ("Hoffman") as a third
party defendant on the ground that "Hoffman is or may be
liable to Triangle Tube for all or part of the claim that the
plaintiffs have asserted against Triangle Tube in this civil
matter." Doc. 13, at 1. Defendant has attached its
proposed third party complaint as Exhibit A to its motion.
Id., Ex. A.
support of the motion, Triangle Tube argues that Hoffman will
suffer no prejudice or surprise by being brought into the
action at this time. In particular, Triangle Tube points out
that "[t]he parties have not yet engaged in formal
discovery, and no depositions have been taken to date."
Doc. 13, at 1. Moreover, Hoffman is already aware of the
existence of the action in that it has "previously
received notice from [Triangle Tube's] attorneys of the
potential claim against it." Id. Neither of the
two Plaintiffs in this action has responded or objected to
Triangle Tube's motion to implead Hoffman. The time to
file such a response has expired, and the motion is ripe for
Standard to Grant or Deny Motion for Leave to File Third
to Rule 14(a)(1) of the Federal Rules of Civil Procedure,
"[a] defending party may, as third-party plaintiff,
serve a summons and complaint on a nonparty who is or may be
liable to it for all or part of the claim against it."
By design, Rule 14(a) "promote[s] judicial economy by
eliminating the need for a defendant to bring a separate
action against a third-party who may be secondarily or
derivatively liable to the defendant for all or part of the
plaintiff's claim." Hines v. Citibank,
N.A., 96-CV-2565(RJW), 1999 WL 440616, *2 (S.D.N.Y. June
28, 1999) (citing Gross v. Hanover Ins. Co., 138
F.R.D. 53, 54 (S.D.N.Y.1991)). Nonetheless, "the right
to implead third parties is not automatic, "
Consolidated Rail Corp. v. Metz, 115 F.R.D. 216, 218
(S.D.N.Y.1987). The decision whether to permit a defendant to
implead a third-party defendant rests in the trial
court's discretion. Kenneth Leventhal & Co. v.
Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir. 1984)
(per curiam); Laffey v. Northwest Airlines,
Inc., 567 F.2d 429, 477 (D.C. Cir.1976), cert.
denied, 434 U.S. 1086 (1978).
general, "[a] third-party claim may be asserted under
Rule 14(a)(1) only when the third party's liability is in
some way dependent on the outcome of the main claim or when
the third party is secondarily liable to the defending
party." 6 Charles Alan Wright & Arthur R. Miller,
& Mary Kay Kane, Federal Practice and Procedure
§ 1446, at 377 (3d ed. Westlaw April 2016).
See, e.g., Bank of India v. Trendi
Sportswear, Inc., 239 F.3d 428, 438 (2d Cir. 2000)
("To sustain an impleader action, the third-party . . .
must be liable secondarily to the original defendant . . .
for all or part of the plaintiff's recovery, or . . . the
defendant must attempt to pass on to the third party all or
part of the liability asserted against the defendant. This
means that the impleader action must be dependent on, or
derivative of, the main . . . claim.") (citations,
internal quotation marks, and bracketed material omitted);
Siemens Westinghouse Power Corp. v. Dick Corp, 299
F.Supp.2d 242, 248 (S.D.N.Y. 2004) ("The crucial
characteristic of a Rule 14 claim is that [the] defendant is
attempting to transfer to the third-party defendant the
liability asserted against him by the original plaintiff. In
other words, the outcome of the third-party claim must be
contingent on the outcome of the main
claim[.]") (emphasis in original; citations and internal
quotation marks omitted).
simply, "[t]he secondary or derivative liability notion
is central, " such that impleader is often
"successfully utilized when the basis of the third-party
claim is indemnity." Federal Practice and Procedure
§ 1446, supra; see also, e.g., United
States v. Farr & Co., 342 F.2d 383, 386-87 (2d Cir.
1965). In general, under Connecticut law, "[i]ndemnity
involves a claim for reimbursement in full from one on whom a
primary liability is claimed to rest." Smith v. New
Haven, 258 Conn. 56, 67 n.7 (2001) (quoting Crotta
v. Home Depot, Inc., 249 Conn. 634, 641 (1999)). See
also Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694,
697-98 n. 3 (1997); Kaplan v. Merberg Wrecking
Corp., 152 Conn. 405, 412 (1965).
particular, to assert a Connecticut common law
indemnification claim, a defendant must show that: "(1)
the party against whom the indemnification is sought was
negligent; (2) that party's active negligence, rather
than the defendant's own passive negligence, was the
direct, immediate cause of the accident and the resulting
injuries and death; (3) the other party was in control of the
situation to the exclusion of the defendant seeking
reimbursement; and (4) the defendant did not know of the
other party's negligence, had no reason to anticipate it,
and reasonably could rely on the other party not to be
negligent." Smith v. New Haven, 258 Conn. at 66
(citing Kaplan, 152 Conn. at 416). See also
Smith v. Greenwich, 278 Conn. 428, 463 (2006) (quoting
four Kaplan factors) Kyrtatas v. Stop &
Shop, Inc., 205 Conn. 694, 698 (1988) (setting forth
"four separate elements" necessary to establish
common law indemnification); O & G Indus., Inc. v.
Aon Risk Servs. Ne., Inc., No. 3:12-CV-723 (JCH), 2013
WL 4737342, at *3 (D. Conn. Aug. 30, 2013) (same). Such
"[i]ndemnity shifts the impact of liability from passive
joint tortfeasors to active ones." Skuzinski v.
Bouchard Fuels, Inc., 240 Conn. 694, 697 (1997)
(citations and internal quotation marks omitted).
Triangle Tube's Proposed Indemnification Claim
case at bar, defendant Triangle Tube seeks to implead
Hoffman, arguing that it "is or may be liable to
Triangle Tube for all or part of the claim that the
plaintiffs have asserted against Triangle Tube in this civil
matter." Doc. 13, at 1. Triangle Tube states the
following alleged facts in its proposed Third Party
Complaint. On August 27, 2012, Lofrumento "entered into
an 'Equipment Sales Agreement' with Hoffman,
regarding the sale and installation of the subject water
heater." Doc. 13 (Ex. A, "Third Party
Complaint"), at 8 (¶ 3). The following day, Hoffman
"installed the subject water heater" at
Lofrumento's residence (the Brookfield property), but did
so improperly by failing to install a "drain pan"
underneath it, "as required by the International
Residential Code, " as well as the "installation
manual" for the heater. Id., at 8 (¶¶
4- 5). Moreover, Hoffman allegedly knew or should have known
that a "drain pan" was required underneath the
water heater. Id., at 8 (¶ 6). Thus, according
to Triangle Tube, it was Hoffman, and not Triangle Tube, that
negligently installed the water heater, which thereafter
failed and resulted in water loss and damages to
Lofrumento's Brookfield residence. Id., at 8
(¶¶ 8-10). Moreover, Triangle Tube "did not
enter into any contract with Hoffman for the installation of
the subject water heater." Id., at 9 (¶
its recitation of alleged facts, Triangle Tube sets forth one
count of "Common Law Indemnification" against
Hoffman in the "Third Party Complaint." In that
claim, Triangle Tube alleges that Hoffman is the "party
that was responsible for installing the subject water heater
in Lofrumento's personal residence" and "had
exclusive control over the sale and proper installation of
the water heater." Id., at 9 (¶ 13).
Therefore, "if anyone was negligent" with respect
to the installation of the water heater, "it was Hoffman
for failing to properly and adequately execute its duties to
properly install the subject water heater."
Id., at 9 (¶ 14). Such negligence allegedly
included, inter alia, "failure to install a
drain pan underneath the subject water heater, " which
was the "direct and proximate cause of the damages
sustained to the real and personal property of Lofrumento,
and thus the damages and losses suffered by Homesite."
Id., at 9 (¶ 15).
Subject Matter Jurisdiction
considering the substance of a third party claim, it is
incumbent on the Court to determine whether there is adequate
subject matter jurisdiction over that claim. An impleader
claim, as every other claim in federal court, must be
assessed individually to confirm the existence of a proper
basis for federal subject matter jurisdiction. See
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 66 n.1 (1996)
("Once federal subject matter jurisdiction is
established over the underlying case between [plaintiff] and
[defendant], the jurisdictional propriety of each
additional claim is to be assessed individually.")
(emphasis added). "[W]hether a court has subject matter
jurisdiction over a third-party . . . is distinct from an
assessment of the propriety and merits of an impleader
action." Bank of India v. Trendi Sportswear,
Inc., 239 F.3d 428, 438 (2d Cir. 2000).
Court has previously held, subject matter jurisdiction in the
main case at bar is based solely on "diversity of
citizenship, " 28 U.S.C. § 1332(a). Plaintiffs'
only claim in the main action arises under a Connecticut
statute, namely Connecticut's product liability act,
codified at Conn. Gen. Stat. § 52-572m, et seq.
There are thus no grounds to find that a "federal
question" has been implicated, 28 U.S.C. § 1331.
Similarly, because the proposed impleader claim is a
Connecticut common law action for indemnification, there is
no "federal question" in that action either. The
Court therefore examines whether there is ...