United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON FOURTH-PARTY
DEFENDANT'S MOTION TO DISMISS
W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE
defendant Independent Materials Testing Laboratories Inc.
(“IMTL”) has moved to dismiss Count Three of the
fourth-party complaint filed by Cherry Hill Construction Co.
(“Cherry Hill”). For the following reasons,
IMTL's motion to dismiss will be granted.
30, 2010, The United Illuminating Company (“UI”)
and Whiting-Turner entered into an agreement for the
construction of The United Illuminating Central Facility
Project located in Orange, Connecticut. The agreement
required the construction of an office building, an
operations building, and related parking lots and common
driveways. Whiting-Turner and Cherry Hill entered into a
subcontract agreement pursuant to which Cherry Hill was to
perform the site work on the Central Facility.
Complaint dated February 23, 2018, UI commenced this lawsuit
against Whiting-Turner, alleging that UI has encountered
significant defects in the construction of the Central
in turn, filed a third-party complaint against its
subcontractors, including third-party defendant Cherry Hill.
Whiting-Turner alleges that If UI's allegations against
Whiting-Turner related to site work are proven,
Whiting-Turner's liability to UI for incomplete or
defective work is a direct and proximate result of Cherry
Hill's breaches of the Cherry Hill Subcontract, including
Cherry Hill's installation of “substandard
fill” and “an inadequate drainage layer”
for the parking lots and driveways. Whiting-Turner further
alleges that Cherry Hill was in exclusive control of the site
work related to the parking lots and driveways relevant to
Hill subsequently filed a fourth-party complaint against
Independent Materials Testing Laboratories Inc.
(“IMTL”) asserting a claim for common law
indemnification. Specifically, Cherry Hill alleges that IMTL
oversaw, inspected, and/or approved Cherry Hill's site
work. Cherry Hill alleges that IMTL's services included,
or should have included, soil testing of the fill to ensure
that it satisfied the project specifications. Cherry Hill
further alleges that If UI proves its allegations concerning
the use of substandard fill, IMTL failed to identify any such
deficiency. Accordingly, Cherry Hill submits that IMTL's
acts or omissions were the proximate cause of the defects
alleged by UI and that by virtue of its active negligence,
IMTL is liable to Cherry Hill for all expenses related to the
defense of this case.
has moved to dismiss Cherry Hill's claim for
indemnification against it. For the following reasons,
IMTL's motion will be granted.
function of a motion to dismiss is "merely to assess the
legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support
thereof." Ryder Energy Distribution v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).
When deciding a motion to dismiss, the Court must accept all
well-pleaded allegations as true and draw all reasonable
inferences in favor of the pleader. Hishon v. King,
467 U.S. 69, 73 (1984). The complaint must contain the
grounds upon which the claim rests through factual
allegations sufficient “to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007). A plaintiff is
obliged to amplify a claim with some factual allegations in
those contexts where such amplification is needed to render
the claim plausible. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
involves a claim for complete reimbursement based on
equitable principles. Kaplan v. Merberg Wrecking
Corp., 152 Conn. 405, 412 (1965). Ordinarily, there is
no right of indemnity between tort-feasors. Id.
However, in Kaplan, the Supreme Court of Connecticut
adopted an implied obligation of indemnity for a tortfeasor
whose active negligence is primarily responsible for a
plaintiff's injuries where the
“out-of-pocket” defendant was merely passively
negligent. Smith v. City of New Haven, 258 Conn. 56,
To assert a claim for indemnification under Kaplan,
an out-of-pocket 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  resulting injuries ; (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 ...