United States District Court, D. Connecticut
RULING ON THIRD PARTY PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND THIRD PARTY DEFENDANT'S MOTION FOR
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
Penney Properties, Inc. and J. C. Penney Corporation, Inc.
(collectively, “J. C. Penney”), Defendants in a
lawsuit from Ralph Seitz arising from a fall that occurred
during a winter storm on J. C. Penney's property, filed a
third-party Complaint against Folsom Construction, LLC
(“Folsom”). See Third-Party Complaint,
ECF No. 23 (“Compl.”). J. C. Penney alleged that
Folsom was liable for (1) contractual indemnification, (2)
promissory estoppel, and (3) common law indemnification.
Id. Before the Court is J. C. Penney's motion
for summary judgment on Count One of the third-party
complaint, as well as Folsom's motion for summary
judgment on the remaining two counts. See J. C.
Penney Mot. ECF No. 46; Folsom Mot., ECF No. 43.
reasons that follow, both the third-party plaintiff's
motion for summary judgment and the third-party
defendant's motion for summary judgment are
Penney owns and maintains the Manchester Logistics Center
(“the facility”) in Manchester, Connecticut. J.
C. Penney's Local Rule 56(a)(1) Statement (“J. C.
Penney Stmt.”), ECF No. 49, ¶ 1; Folsom's
Local Rule 56(a)(1) Statement (“Folsom Stmt.”),
ECF No. 42-2, ¶ 3. At the facility, tractor-trailer
trucks bring shipments of goods in and out of the
Facility's warehouses and docks. Id. at
¶¶ 2-3. On February 18, 2014, during a winter
storm, Ralph Seitz drove from his home in upstate New York to
the Facility. Id. at ¶ 10-11. Mr. Seitz, who
worked as an independent contractor for Schneider National,
Inc., planned to pick up a shipment of goods that he would
take to various locations in New York. Id. at ¶
19. At the Facility, he left his car to take a mandatory
lunch break and slipped and fell, experiencing injuries that,
by December 2016, required $107, 243.24 of care, which he was
paid by Workmen's Compensation. Id. at 22-24. In
June 2015, Mr. Seitz filed his Complaint against J. C.
Penney, alleging that J. C. Penney's negligence
proximately caused his injuries. Id. at ¶ 25.
2011, J. C. Penney entered into a contract with Folsom under
which Folsom was responsible for clearing and treating all
the parking areas and the perimeter roadway. Id. at
¶ 6; see also Contract, Ex. 5 to J. C.
Penney's Stmt., ECF No. 49-5, at Sch. A, Art. 4-5
(hereinafter “Contract”). The Contract required
Folsom to provide J. C. Penney a defense and indemnity for
“any and all claims arising out of or related to
Folsom's clean-up activities.” Contract, Art. 9.
Specifically, the Contract provided that:
[Folsom] agrees to defend and indemnify J. C. Penney and its
current and former directors, officers, agents, employees and
affiliates from and against any and all claims and legal
proceedings made or brought by third parties (Including,
without limitation, governmental entitles aid current or
former directors, officers, agents, employees and affiliates
of Contractor) that in any manner arise out of, relate to, or
are caused by Contractor's performance or non-performance
of this Agreement. . . . [I]f a legal proceeding subject to
this indemnity provision is brought against J. C. Penney or
any of its current and former directors, officers, agents,
employees and affiliates. Contractor will retain and pay
reputable counsel, approved by J. C. Penney, to represent J.
Contract, Art. 9.1-9.2. The Contract added that Folsom's
“obligation to indemnify covers all sums for which J.
C. Penney [is] held liable.” Id. at 9.3.
Contract also included requirements for Folsom's
insurance coverage. Article 10 of the Contract provided that
Contractor shall maintain from and after the Effective Date
and until the expiration or termination of this Agreement,
commercial general liability or personal liability insurance
of at least $1 million per occurrence covering the type of
Services performed, or in the amounts required by law,
whichever is greater. Such insurance policy shall be procured
from an insurance company acceptable to J. C. Penney. Upon J.
C. Penney's request, Contractor shall provide J. C.
Penney with a certificate of Insurance evidencing the
requested coverage concurrently with the execution of this
Agreement and upon each renewal of such policy thereafter.
This section shall in no way affect the indemnification
remedy or warranty provisions set forth in this Agreement.
Id. at Art. 10. At some point, “Folsom
provided J. C. Penney a certificate of insurance indicating
that J. C. Penney was named as an additional insured.”
Id. at 8; see also Certificate, Ex. 2 to
Penney's L.R. 56(a)(2) Stmt., ECF No. 51-3.
Laura Briggs, who was the Office Manager for Folsom from 2006
until it closed for business in December 2014, requested a
certificate listing J. C. Penney as an additional insured
party. J. C. Penney's L.R. 56(a)(2) Stmt. ¶ 9;
see also Briggs Dep., Ex. 2 to Penney's L.R.
56(a)(2) Stmt., ECF No. 51-2, 84: 12-14). Ms. Briggs said
that J. C. Penney “required . . . Folsom to request
from its agent that J. C. Penney and its subsidiaries and
affiliates be listed as additional insureds on this insurance
policy.” Id. at 84:1-12; see also Id.
at 85: 8-11 (“Q: And J. C. Penney required this as the
condition before you could begin work as a contractor? A: The
condition of the contract, yes.”). Ms. Briggs did not
recall whether J. C. Penney was, in fact, listed as an
additional insured on Folsom's insurance policies.
Id. at 85:19-23. While she did not recall any
“communications” with Folsom's insurance
agent asking to add J. C. Penney to Folsom's insurance,
she stated that it was “very typical to name a customer
as an additional insured.” Id. at 86:1-8.
third-party Complaint, J. C. Penney alleges that it
“tendered the defense and indemnification of
First-Party Plaintiff Ralph Seitz's Complaint to
Folsom's insurer in accordance with the information on
the Certificate of Insurance. Folsom's insurer denied
additional insured coverage on the basis that J. C. Penney
Corporation, Inc. and its affiliates, including J. C. Penney
Properties, Inc., were not, in fact, named as additional
insureds in Folsom's insurance policy.” Compl.
¶ 9. Folsom did not dispute this contention.
See Ans. to Third-Party Compl., ECF No. 34, 9
(“leaving third party plaintiffs to their proof”
as to the allegations in paragraph nine).
Seitz claims that he incurred the relevant injuries when he
fell in the parking lot of the Facility, which is designated
as Lot 1. Folsom Stmt. ¶ 4. At the time of the incident,
J. C. Penney owned the facility. Id. at ¶ 4.
Robert Gardner was “Maintenance Senior Manger” of
the Facility. Gardner Dep., Ex. 1 to J. C. Penney Stmt., ECF
No. 49-1. At the time of the incident, Mr. Gardner was
“responsible for the [F]acility and the grounds”
and managed a “crew of maintenance workers.”
Id. at 7:1-11. J. C. Penney asked Mr. Gardner and
his team to “inspect the entire property” at
various points, although they did not make routine
inspections.” Id. at 21:13-18.
to Mr. Gardner, he and his maintenance team “did small
scale [snow removal] assistance” to “make a safe
environment for all parties involved.” Id. at
19:3-24. “Folsom had the contract for the snow removal
by and large, ” if he or his team “saw something
[they] wanted to do that needed attention, [that they] could
handle with a pickup truck, [they] would do that.”
Id. at 19: 14-17. The Contract between Folsom and J.
C. Penney provided that Folsom should clear the lots in the
Facility by 5:00 a.m. and were obligated to begin plowing the
parking lots whenever more than two inches of snow had
accumulated. See Contract, Sched. A, Art. 5. Mr.
Gardner stated that he “didn't follow” this
provision of the Contract, however, and in reality
“would have [Folsom] come out well before two
inches.” Id. at 27:9-10. If J. C. Penney
wanted Folsom to come to the yard, Mr. Gardner or one of the
supervisors that he employed would call Folsom. Id.
at 27:23-24 (“The call from J. C. Penney could come
from me or from my two supervisors”). Ms. Briggs
explained that “Folsom wouldn't have begun [snow
removal] activities without” a call from J. C. Penney.
Briggs Dep., 45:7-11.
Folsom cleared “parking lots and roadways, ” and
J. C. Penney cleared the sidewalks at the Facility.
Id. at 30: 6-8. According to Mr. Gardner, J. C.
Penney helped Folsom “understand the priorities,
” for snow removal, but the contractor “use[d]
his expertise in how to best provide snow removal” and
determined details like “how to use a truck, how to
operate [a] loader, how to fill [a] salt truck” without
J. C. Penney's intervention. Id. at 45:1-9.
Specifically, J. C. Penney would pass along information about
the truck schedules at the Facility or other “business
priorities, ” but Folsom generally “kn[ew] that
his obligation [wa]s to provide snow removal for the entire
property.” Id. at 46:2-13. J. C. Penney did
not “granulate [the snow removal priorities] down to a
list of the seven lots and this is the you do them in,
” because “things happen[ed] simultaneously based
on multiple equipment.” Id. at 46;22-24;
47:9-10. Mr. Gardner did agree that there was “a
potential” that, “if the conditions, the snow and
the business demands at a particular time of day were such
that J. C. Penney wanted Lots 6 and 7 to be given priority,
J. C. Penney would tell Folsom that.” Id. at
Penney's weather records indicated that the
“snowfall was continuous between 7 a.m. and sometime in
the afternoon” on the date of the incident. Gardner
Dep. 58: 17-20. Folsom's work logs indicate that a Folsom
employee arrived at the Facility at 9:10 a.m. with a salt
truck. J. C. Penney Stmt. ¶ 14 (citing Work Logs, Ex. 8
to J. C. Penney's Stmt., ECF No. 49-8, 3). Five
additional Folsom employees came to the Facility that day,
all of whom, according to the logs, did not leave the
Facility until 1:00 a.m. the next morning. Id. Mr.
Gardner stated that J. C. Penney paid Folsom for services
billed on February 18, 2014 and that he had no memory of
“any problems” with Folsom's service.
Id. at 58:8-16.
January 2016, J. C. filed an amended Answer to Mr.
Seitz's Complaint, as well as a third-party Complaint
against Folsom. In the third- party complaint, J. C. Penney
alleged that Folsom was liable for (1) contractual