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Seitz v. J.C. Penney Properties, Inc.

United States District Court, D. Connecticut

September 28, 2017

RALPH SEITZ, Plaintiff,
J. C. PENNEY PROPERTIES, INC.; J. C. PENNEY CORPORATION, INC. Defendants/Third-Party Plaintiffs,



         J. C. 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.

         For the reasons that follow, both the third-party plaintiff's motion for summary judgment and the third-party defendant's motion for summary judgment are DENIED.

         I. Factual Background[1]

         J. C. 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.

         In 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. C. Penney.

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.

         The 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.

         Ms. 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.

         In its 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).

         Mr. 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.

         According 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.

         Generally, 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 47:11-18.

         J. C. 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.

         In 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 ...

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