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United Illuminating Co. v. Whiting-Turner Contracting Co.

United States District Court, D. Connecticut

June 3, 2019

UNITED ILLUMINATING COMPANY, Plaintiff,
v.
WHITING-TURNER CONTRACTING CO, Defendant, Third-Party Plaintiff,
v.
CHERRY HILL CONSTRUCTION CO., INC., et al., Third-Party Defendant, Fourth-Party Plaintiff,
v.
INDEPENDENT MATERIALS TESTING LABORATORIES INC., et al., Fourth-Party Defendant.

          MEMORANDUM OF DECISION ON FOURTH-PARTY DEFENDANT'S MOTION TO DISMISS

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE

         Fourth-party 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.

         BACKGROUND

         On June 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.

         By 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 Facility.

         Whiting-Turner, 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 this case.

         Cherry 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.

         IMTL has moved to dismiss Cherry Hill's claim for indemnification against it. For the following reasons, IMTL's motion will be granted.

         DISCUSSION

         The 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).

         Common Law Indemnification

         Indemnity 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, 66 (2001).

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 ...

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