Opinion
No. CV 08 5004470 S
June 1, 2011
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#150, 154)
The defendants, Tony Phillips and Susan Phillips, filed a motion for summary judgment on the plaintiff's complaint alleging negligence. The plaintiff, Daniel Cappello, filed a motion for summary judgment on the defendants' counterclaim seeking indemnification. The defendants' motion for summary judgment is denied. The plaintiff's motion for summary judgment is granted, in part, and denied, in part.
I FACTS
On January 29, 2009, the plaintiff filed a revised one-count complaint against the defendants alleging negligence arising out of a fall at the defendants' residence. The plaintiff is the owner, sole member and sole employee of DC Carpentry, LLC ("DC Carpentry). The plaintiff alleges that on or about June 4, 2007, he entered into a contract with the defendants to do carpentry work for a new addition to the defendants' home ("contractor's agreement"). On October 24, 2007, while performing work at the defendants' home ("work site") under the terms of the contractor's agreement, the plaintiff fell from a ladder into an uncovered stairway. The plaintiff alleges that on that day the weather became inclement causing other subcontractors to cease work. Although the plaintiff also elected to discontinue work for the day, Tony Phillips demanded that the plaintiff remain and continue to work. The plaintiff informed Tony Phillips that in order to continue working, Mr. Phillips needed to provide a solid platform from which the plaintiff could continue to work by placing pieces of plywood over the muddy exterior of the partially constructed building addition in the area where the plaintiff was to work. The plaintiff alleges that Tony Phillips neglected to place the pieces of plywood as directed. As the plaintiff was working, he ascended a ladder to perform work, but the ladder listed as part of it sank into the uncovered, muddy ground causing the plaintiff to fall into an uncovered stairwell. The plaintiff had previously attempted to cover the stairwell opening using a sheet of plywood from the onsite building materials but was prohibited from doing so by Tony Phillips. The plaintiff alleges that his injuries were caused by the defendants' negligence and that the defendants' duty of care to the plaintiff arose out of their roles as owners of the property, general contractors for the construction job and "helpers" under the contractor's agreement. The plaintiff alleges that the defendants' breaches of their duties resulted in the unsafe work conditions that caused the plaintiff's injuries.
On March 31, 2011, the plaintiff filed an amended complaint to correct a scrivener's error in paragraph 19. The amended complaint was filed after the defendants filed the present motion for summary judgment.
On October 27, 2009, the defendants filed an amended answer asserting special defenses and a counterclaim against the plaintiff for contractual indemnification. The defendants allege that the contractor's agreement contains an indemnification and hold harmless provision as well as requires the plaintiff to carry general liability insurance. The defendants seek indemnification for all damages and costs, including the costs of defense based upon the plaintiff's promise that he would indemnify and hold them harmless and because of his failure to provide general liability insurance.
On February 8, 2011, the defendants filed a motion for summary judgment along with a supporting memorandum of law and evidentiary support on the ground that there is no genuine issue of material fact that (1) the defendants' actions were not the legal or proximate cause of the plaintiff's injury; (2) the plaintiff was an independent contractor and had exclusive control over the premises where his injury occurred; and (3) the exclusivity section of the workers' compensation statute, General Statutes § 31-293a, bars the plaintiff's common law claims. On March 31, 2011, the plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment along with evidentiary support. The defendants filed a reply memorandum on April 21, 2011.
On March 4, 2011, the plaintiff (as the counterclaim defendant) filed a motion for summary judgment on the defendants' counterclaim along with a supporting memorandum of law and evidentiary support. The plaintiff moves for summary judgment on the ground that there is no genuine issue of material fact that regarding the plaintiff's position that the plaintiff, individually, was not a party to the indemnity and hold harmless provision contained in the contractor's agreement. Alternatively, the plaintiff argues that the provision is void as against public policy. On March 30, 2011, the defendants filed a memorandum of law in opposition to the plaintiff's motion for summary judgment on the counterclaim along with evidentiary support. Thereafter, on April 1, 2011, the defendants filed a supplemental memorandum of law in support of their objection to the plaintiff's motion for summary judgment. On May 2, 2011, the plaintiff filed a supplemental memorandum of law in support of his motion for summary judgment. The court heard argument on these motions on April 25, 2011.
The court notes that, in total, the parties submitted over 300 pages of exhibits in support of their respective positions.
II THE PLAINTIFF'S COMPLAINT AND THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The defendants move for summary judgment on the ground that there is no genuine issue of material fact with regard to the following claims: (1) the defendants' actions were not the legal or proximate cause of the plaintiff's injury; (2) the plaintiff was an independent contractor and had exclusive control over the premises where his injury occurred; and (3) the exclusivity section of the workers' compensation statute, General Statutes § 31-293a, bars the plaintiff's common law claims. In support of their arguments, the defendants submit a copy of the contractor's agreement, affidavits from both defendants, the plaintiff's responses to request for admissions, and excerpts from the plaintiff's uncertified deposition transcript.
"[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23 (2009); accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). In the present case, the contractor's agreement is authenticated by the defendants' affidavits.
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46. In the present case, the affidavits of both defendants meet the requirements of Practice Book § 17-46.
"While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, supra, 96 Conn.App. 92. Since neither party has objected to the submission of any uncertified deposition transcripts, the court will consider them in ruling on the motion for summary judgment.
The plaintiff objects to the defendants' motion for summary judgment arguing that there are genuine issues of material fact as to whether the defendants properly discharged their duties as general contractors to maintain a safe work site; whether they properly discharged their duties under the contractor's agreement to act as helpers with the construction; and whether they exercised control over the plaintiff's work and the work site. According to the plaintiff, the factual dispute regarding these issues results in genuine issues of material fact as to whether the defendants were the legal and proximate cause of the plaintiff's injuries, whether the plaintiff was an independent contractor in exclusive control over the area where the injury occurred, and whether General Statutes § 31-293a can be used as a defense to bar the plaintiff's claim. In support of his arguments, the plaintiff submits excerpts and exhibits from the uncertified deposition transcripts of the plaintiff, both defendants, and other subcontractors and vendors associated with the construction project, namely Bradford Smith, Michael St. John, John Kritz, Steve Ascenza and Dean Young. The plaintiff also submits the affidavit of Daniel Paine, a construction safety and fall protection expert.
A Legal and Proximate Cause of the Plaintiff's Injury
The defendants argue that they are entitled to summary judgment on the ground that there is no genuine issue of material fact with regard to their claim that the plaintiff cannot succeed with his negligence claim because there is a lack of a causal connection between the defendants' allegedly wrongful conduct and the plaintiff's injury. First, the defendants contend that for them to be the legal cause of the plaintiff's injury, the plaintiff would have to prove that his injury would not have occurred but for the conduct of the defendants. According to the defendants, however, the plaintiff made a conscious choice to set up his ladder at a place he knew to be unsuitable, fully aware of the attendant risks. It was the act of setting up the ladder in the precise location that was the cause in fact of the accident, not any allegedly negligent conduct on the part of the defendants. Second, the defendants argue that they can only be held liable as having proximately caused the plaintiff's injury if their conduct was a substantial factor in causing the harm. According to the defendants, an intentional act by a third party can be a superceding cause of the harm and result in a shift of responsibility for the consequences because the third party has deliberately assumed control of the situation. The defendants contend that the plaintiff deliberately assumed control of the situation by his intentional placement of the ladder in an area where he knew it should not have been placed and all responsibility for the consequences of his act shifted to him.
The plaintiff objects, arguing that the defendants' duties to the plaintiff arose from the different roles that the defendants held as owners of the property and as general contractor. The plaintiff contends that the defendants actively exercised control over the plaintiff, his work and the work site and that exercise of control constitutes the legal and proximate cause of the plaintiff's injury. The plaintiff argues that the actions of the defendants in compelling the plaintiff to work when and where it was not reasonably safe to do so, without the promised help of Tony Phillips and near an open stairwell — a stairwell left open due to the conduct of the defendants — was the legal cause of the plaintiff's injuries.
According to the plaintiff, Tony Phillips assumed a specific contractual duty to the plaintiff to serve as a helper in doing the carpentry portion of the work and this agreement obligated Mr. Phillips to be present on the work site each day and to perform work as instructed by the plaintiff. The plaintiff claims, in effect, that Tony Phillips wore two hats: he sometimes followed instructions as helper, but the defendants also controlled the work themselves. They ordered work to begin when it was not safe to do so, and they did so against the plaintiff's advice. They had exclusive control over the materials and refused to permit the use of those materials for reasonable safety measures, and Mr. Phillips unilaterally decided when he would work as a helper.
The plaintiff also contends that the defendants' acts were substantial factors in producing the plaintiff's injuries because the defendants permitted the opening to stairwell, into which the plaintiff fell, to remain uncovered. Finally, the plaintiff argues that the defendants are liable as property owners because the open stairwell constituted a dangerous condition and the defendants have a duty to maintain their premises in a reasonably safe condition for business invitees.
In reply, the defendants argue that the plaintiff's allegations of threats, pressure and orders by the defendants bear no legal significance and do not approach a claim of duress. The defendants also contend that the defendants had no duty to permit the plaintiff to use their materials to cover the stairwell opening and, therefore, without such a duty there can be no negligence. Finally, the defendants reply that the proximate cause of the fall was the plaintiff's own decision as to where to place the ladder and when to use it.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . [T]he existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139-40, 2 A.3d 859 (2010).
"To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred if it were not for the actor's conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise . . . An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm . . . The finding of actual cause is thus a requisite for any finding of proximate cause." (Citation omitted; internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007).
"[L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation . . . Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether that harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . In negligence cases . . . in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the [victim] . . . The determination of the nature of the legal duty owed, if any, must be rooted in the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in producing the [victim's] injury . . . To that end, [t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; internal quotation marks omitted.) Finkle v. Carroll, Superior Court, judicial district of Waterbury, Docket No. CV 08 8011369 (September 17, 2010, Ozalis, J.) ( 50 Conn. L. Rptr. 681).
In support of their motion, the defendants submit the affidavit of Tony Phillips attesting that the plaintiff owned the ladder from which he fell and, on the day of the accident while Mr. Phillips was in the back of the house, the plaintiff chose the location to erect the ladder. Mr. Phillips also attests that the plaintiff did not seek his advice concerning the location or manner in which the plaintiff planned to erect the ladder and never asked Tony Phillips to assist him or to hold the ladder for him. Tony Phillips further attests that he did not see the plaintiff set up the ladder or fall from it but knows "the general area where [the plaintiff] was planning to set up the ladder . . . was muddy and that the ground was uneven. The earth there was soft because it had recently been back-filled and because there was some rain falling during the day, before [the plaintiff] set up the ladder . . . For approximately four months prior to October 24, 2007, the whole area surrounding [the] home was a construction site. The ground had been excavated . . . so that it was rough and uneven . . . at all times when [the plaintiff] was on the job . . . The area where I believe him to have fallen was clearly a construction site . . ." The defendants also submit excerpts from the plaintiff's deposition, in which the plaintiff testified that he intentionally set up his ladder at a location where he knew the ground was soft, because it had recently been backfilled, and muddy, and where he knew it was not safe because the ground was not firm.
The portion of the plaintiff's deposition testimony submitted by the defendants also indicates that the plaintiff did not see Tony Philips until after he fell; that Mr. Phillips was inside the house and did not come back out until after he had fallen off the ladder. The plaintiff submits Mr. Phillips' deposition testimony in which Mr. Phillips testified that on the day of the accident, prior to the accident, he saw the plaintiff on the ladder because he was, for some time prior to the plaintiff's fall, carrying wood between two piles.
The plaintiff's deposition transcript also reflects that on the day of his accident the plaintiff felt threatened with legal action by the defendants if he did not stay to perform work on the site regardless of the weather conditions. The plaintiff claims that he told Tony Phillips that he (the plaintiff) was leaving but Tony Phillips forced him to stay on the job. Moreover, the plaintiff testified that he did not have all the normal responsibilities of a general contractor in that his role on the site was only to oversee the workmanship of the other subcontractors, not the scheduling of those subcontractors. Rather, it was Tony Phillips' job to hire the subcontractors and schedule the performance of their work. Furthermore, the plaintiff testified that he originally bid his services to be the general contractor on the job for $261,000 but his bid was rejected. Thereafter, the defendants accepted the plaintiff's reduced bid of $68,000 reflecting deductions based on reduced costs because the defendants, not the plaintiff, would fill the role of general contractor.
The plaintiff also submits the affidavit of Daniel Paine, a construction safety and fall protection expert, who attests that he reviewed deposition transcripts and documents for the purpose of determining the construction industry standards that applied to the work site and assessing whether the defendants followed the applicable industrial safety standard of care for construction in Connecticut as well as the requirements of the Occupational Safety and Health Administration (OSHA) on the day of the plaintiff's accident. The defendants object to the admissibility of Paine's affidavit on the ground that Paine's opinion is without foundation because the OSHA definitions do not apply to the present case and are irrelevant. Under OSHA, the term "employer" means "a person engaged in a business effecting commerce who has employees . . ." and "employee" means "an employee of an employer who is employed in a business of his employer which affects commerce." 29 U.S.C. § 52; 29 C.F.R. § 1910.2. The defendants argue that Paine's affidavit is irrelevant unless the plaintiff can show a basis to demonstrate that the defendants were engaged in a business affecting commerce who has employees and further show that the plaintiff, and others on the job, were employees rather than independent contractors.
`The trial court is given broad latitude in ruling on the admissibility of evidence . . ." Pestey v. Cushman, 259 Conn. 345, 369, 788 A.2d 496 (2002). "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment, and the applicable provisions of our rules of practice contemplate that supporting [or opposing] documents . . . be made under oath or be otherwise reliable." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 234 n. 10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
"The general standard for admissibility of expert testimony in Connecticut is simply that the expert must demonstrate a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue . . . Once the threshold question of usefulness to the jury has been satisfied, any questions regarding the expert's qualifications properly go to the weight, and not to the admissibility, of his testimony . . . The underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than the admissibility of the [expert's opinion] evidence . . . In addition, Practice Book § 17-46 sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit. The requirements that the affidavit be based on personal knowledge and contain facts admissible at trial do not mean, however, that expert opinions in the form of affidavits may not be considered in a summary judgment proceeding. For the purposes of an expert's opinion, the expert's personal knowledge of facts is comprised of those materials on the basis of which he properly may render his opinion . . . These materials include those on the basis of which the expert forms an opinion, and include . . . hearsay . . . Furthermore, an expert's opinion is, for purposes of § [17-46], a fact that would be admissible at trial, assuming that the expert is qualified to render such an opinion . . . Thus, an expert's opinion may be based on second hand sources, such as his training and experience, and information obtained from others . . . Although an expert's opinion must be based on facts, there is no rule of law declaring the precise facts which must be proved before [his] opinion may be received in evidence . . . Our code of evidence incorporates these standards. Section 7-4(a) provides that an expert may give an opinion provided sufficient facts are shown as the foundation for the expert's opinion . . . Section 7-4(b) provides that those facts may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject . . ." (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 613-14, 2 A.3d 963, cert. granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010).
Paine's affidavit states that he is a construction safety and fall protection expert. He is a certified safety executive with World Safety Organization, a professional member of the American Society of Safety Engineers and past vice-president of the Construction Division, and board member of the National Safety Council. The affidavit also notes that Paine is familiar with national and Connecticut construction codes. Paine states that his opinions are based on his review of deposition transcripts and documents associated with the present case. The court concludes that the affidavit lays out the proper foundation for Paine's opinion and Paine's training and experience is more than that of the average layperson and would ordinarily be admissible to aid the trier of fact in that the affidavit provides information from the perspective of a certified expert in work site safety. The defendants argue that the affidavit does not set forth the proper foundation for the admissibility of Paine's opinion because it does not contain facts that demonstrate that the defendants were engaged in a business affecting commerce which has employees, nor does it show that the plaintiff or others on the job were employees rather than independent contractors.
The affidavit states that Paine's opinion is based on his review of deposition transcripts and documents. These documents indicate that there is a dispute between the plaintiff and the defendant concerning the roles of the parties on the work site. Whether the OSHA regulations or Connecticut's construction code applies to the defendants may be an issue more properly addressed in a pre-trial motion. For the purposes of summary judgment, the court finds that Paine's affidavit sets forth a proper foundation and constitutes a fact admissible at trial and the court will, therefore, consider Paine's affidavit.
Paine attests that it is his opinion that (1) the defendants "were the general contractor on the site in that they hired the subcontractors, paid them, and directed their work;" (2) the contractor's agreement "contained no language which altered or delegated the responsibility for ensuring a safe workplace from [the defendants] to [the plaintiff];" (3) the defendants caused a hazardous condition when they removed the 2x6s and did not allow the plaintiff to cover the hole into which he fell; (4) the defendants "knew that the recently backfilled, unstable and muddy area where [the plaintiff] was forced to set up his ladder and where he was working near the uncovered hole were unsafe conditions on the work site . . . [but] did nothing to correct these unsafe conditions;" (5) the defendants did not meet the requirements of OSHA or the standard of care for a construction workplace in Connecticut in that "they permitted or ordered work on the site when the recently backfilled foundation left unstable, unsettled and muddy ground conditions which were unsafe and either should have been remediated through appropriate preparations before work commenced or work should not have been permitted at the site that day; they permitted or ordered [the plaintiff] to work in inclement weather conditions . . .; they refused to allow [the plaintiff] to cover holes in the decking nor did they as the general contractor responsible for workplace safety cover them themselves;" and (6) it is Paine's professional opinion "that the [defendants'] actions and lack of enforcement of workplace safety regulations were the leading cause of . . . [the plaintiff's] fall off the ladder which was the result of the unstable and muddy ground conditions and . . . [the plaintiff's] falling an additional 10 feet to the basement level resulting from the uncovered hole."
The plaintiff also submits excerpts from Tony Phillips' deposition transcript in which Mr. Phillips testified that he thought the plaintiff was acting as the general contractor but that the source of this understanding was not conversations with the plaintiff but rather from conversations with others in the industry. Moreover, Tony Phillips testified that his understanding of the normal responsibilities associated with general contracting were not delineated in the contractor's agreement, that the contractor's agreement is silent concerning who was responsible for work site safety and that the defendants never had a conversation with the plaintiff in which they expressed that the plaintiff was the general contractor and responsible for work site safety. Mr. Phillips further testified that all other bids received for the job were in excess of $250,000, including the plaintiff's original bid, and that these amounts reflected that the contractors were bidding the entire job, i.e. bids to be general contractors, which the defendants rejected because the bids exceed the defendants' budget.
Moreover, the plaintiff submits excerpts from his own deposition transcript in which he testified that after his initial bid was rejected he told the defendants that if they wanted the job done for under $200,000 the defendants would "have to take responsibility for general contracting and Tony or somebody would have to be a helper, and you could just pay me a fee and that way I wouldn't have to pay a helper and pay general contracting prices for all my sub — all the subcontractors on the job." The plaintiff also testified that ten days to two weeks prior to his accident, he tried to cover the stairwell opening with plywood but Tony Phillips told him that he was not permitted to use Mr. Phillips' materials. Tony Phillips told the plaintiff that he would have to use his own materials to cover the opening. The plaintiff testified that he "nailed 2x6s on the decking and Tony pulled the 2x6s off the decking and pulled the nails out and put them back on the pile."
Finally, the plaintiff submits excerpts of the depositions of other subcontractors on the work site. Bradford Smith, the excavation contractor, testified that he understood the defendants to be the general contractors, and he submitted his bill directly to the defendants. He testified that such a practice was a change from his normal dealings with the plaintiff, because when the plaintiff acted as the general contractor Smith would submit his bills directly to the plaintiff. Smith did not perceive the plaintiff as acting as a general contractor while on site but rather as "someone who wanted to get on with his part of the job."
Michael St. John, the mason, and John Kritz, the principal for the concrete contractor, both testified that their business dealings with the plaintiff on this project differed from their previous dealings with him in that they both billed the defendants directly for their work rather than the plaintiff, which was their custom on other projects. Kritz also testified that the defendants were the general contractor, not the plaintiff, because Tony Phillips was "calling the shots on the job site . . . running the show," inspecting and overseeing his work and paying him directly. According to Kritz, if he did not get paid, he would have held the defendants liable, not the plaintiff. Kritz further testified that he did not perceive a change in supervision on the work site after the date of the plaintiff's fall in that the defendants did not hire anyone to "replace" the plaintiff as general contractor; things remained essentially the same.
There are a multitude of genuine issues of material fact which preclude summary judgment, including whether the defendants served as the general contractor and had a duty to provide a safe work environment, and whether their breach in failing to provide a safe work environment was the primary cause of the plaintiff's injuries. Consequently, genuine issues of material fact exist as to whether the defendants were the legal and proximate cause of the plaintiff's injury.
B Independent Contractor
The defendants contend that they are entitled to summary judgment in their favor because there is no genuine issue that they did not owe a legal duty of care to the plaintiff because the plaintiff was an independent contractor who exercised control over the area where the injury occurred. Moreover, the defendants contend that the plaintiff's negligence claim also rests on the plaintiff's false characterization of the defendants as general contractors. The defendants argue that Tony Phillips agreed to act as the plaintiff's helper and the plaintiff did not take direction from Mr. Phillips. Nonetheless, according to the defendants, even if they were considered to be the general contractor, they are still not liable because they did not exercise control over the area where the injury occurred. In support of their arguments, the defendants rely on the plaintiff's deposition testimony in which he testified that he was working on the property as an independent contractor, he was using his own means of doing the job and was doing it in his own manner, his helpers are supposed to follow his directions, and he agreed to oversee all subcontractors on the job. Additionally, the defendants rely on the contractor's agreement which describes the plaintiff alternately as the "contractor" or "an independent contractor with owner's help" and which states that the plaintiff will oversee all subcontractors on the job and the delivery of materials and supplies.
In contrast, the plaintiff contends that the defendants cannot escape liability under a theory that the plaintiff was an independent contractor because the work the plaintiff was performing on the day of the accident was intrinsically dangerous. The plaintiff points out that he was working on a ladder, in the rain and mud, without adequate preparations having been made for ground support and without a helper to brace a ladder being placed at a location adjacent to an open hole in floor decking leading to a ten foot drop. Moreover, the plaintiff argues that the defendants interfered with his work in preventing him from covering the hole and by removing the boards that the plaintiff had placed over the hole, as well as by ordering him to work in unsafe conditions. In reply, the defendants argue that there is no case law to substantiate the plaintiff's assertion that the work he was doing was intrinsically dangerous. Moreover, the defendants contend that there are no facts to support the plaintiff's argument that they actively assumed control or interfered with the plaintiff's work. Rather, according to the defendants, if the plaintiff felt the need to use scrap lumber to cover the hole or support his ladder, that was a "means" of doing the job which the plaintiff should have provided. Finally, the defendants argue that Tony Phillips acted as the plaintiff's helper and that the plaintiff's deposition testimony indicates that, in general, he did not take orders or directions from helpers but that they took his directions and followed his instructions.
"[I]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 528 (2006). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment, [however], because the question is one of law . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290-91, 818 A.2d 893, 897, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
"[A]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work . . . The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work . . . The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor . . . The explanation for [this rule] most commonly given is that, since the [owner] has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it . . . Exceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation." (Citations omitted; internal quotation marks omitted.) Mozeleski v. Thomas, supra, 76 Conn.App. 291-92.
The evidence discussed in subpart A of this decision makes clear that there are genuine issues of material fact concerning the specific roles assumed by the defendants and the plaintiff, which party was responsible for the work site and which party had actual control over the work site. Because there are genuine issues as to whether the plaintiff was an independent contractor who exercised control over the work site, there is a genuine issue of material fact as to whether the defendants owed the plaintiff a duty of care.
C Exclusivity Provision of the Workers' Compensation Statute
The defendants contend that they are entitled to summary judgment because there is no genuine issue that the plaintiff's negligence claim is barred by the exclusivity provision of the Workers' Compensation Act. General Statutes § 31-293a, entitled "No right against fellow employee; exception" provides in relevant part: "If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle . . ."
General Statutes § 31-275 et seq.
According to the defendants, the plaintiff testified in his deposition that he gave a reduction in the agreed contractual price for his work based on Tony Phillips' agreement to act as a helper; normally, the quote would have been higher if the plaintiff had to pay for a helper. The plaintiff estimated that he reduced his price by $10,000 to $20,000. The defendants argue that this is evidence that the plaintiff gave something of value to the defendants as consideration for Tony Phillips' agreement to be his helper and that the defendants became co-employees of DC Carpentry. Therefore, the defendants contend that there was a contract of service and employment between the parties at the time the injury occurred, the defendants were co-employees of the plaintiff and the plaintiff is, therefore, barred by General Statutes § 31-293a from seeking recovery against the defendants.
The plaintiff argues that summary judgment is not proper because there is a question of fact regarding whether an employer/employee relationship was created based on the provision in the contractor's agreement for Tony Phillips to act as a helper. The plaintiff contends that the defendants were not employees but rather were engaged in "sweat equity" in their own project and that none of the normal attributes of employment exist. The plaintiff submits excerpts of Tony Phillips' deposition in which Mr. Phillips testified that no W-9 was filled out, no W-2 issued, and the defendants did not report any income from the alleged employment on their tax returns. Additionally, the plaintiff submits his own deposition in which he testified that he did not feel he had the power to discharge Tony Phillips and also that he was not required to maintain workers' compensation insurance because he was self-employed. Finally, the plaintiff argues that General Statutes § 31-293a would not insulate Susan Phillips who was not involved in helping under the contract terms.
In reply, the defendants argue that the contractor's agreement coupled with the fact that the plaintiff significantly reduced his charge for the work in consideration for Tony Phillips' promise to act as helper made the plaintiff and Tony Phillips co-employees. According to the defendants, the plaintiff falls under the definition of "employer" in the Workers' Compensation Act because he used the services of one or more employees for pay. The defendants rely on Smith v. Jones, 102 Conn. 471, 129 A. 50 (1925), for the proposition that "for pay" does not require the exchange of actual currency. Rather, the reduction in the contract price in exchange for the defendants' work is enough to make the plaintiff an employer under the Workers' Compensation Act and subject to its exclusivity provision.
Contrary to the defendants' assertions, the mere fact that consideration may have been paid to the defendants in exchange for Tony Phillips' promise to be a helper does not end the inquiry under the Workers' Compensation Act. "The manner of remuneration, whether in wages, salary, commission, by piece or job, is not decisive or controlling in determining whether one is an employee or an independent contractor exercising control over the manner of his own work." Darling v. Burrone Bros., Inc., 162 Conn. 187, 193, 292 A.2d 912 (1972). Rather, the issue before the court is whether there are any genuine issues of material fact with regard to whether Tony Phillips was an employee of DC Carpentry, as defined by the Workers' Compensation Act, and therefore, a co-employee of the plaintiff for purposes of the exclusivity provision of the Act.
Under the Workers' Compensation Act, an "employee means any person who [h]as entered into or works under any contract of service or apprenticeship with an employer . . ." (Internal quotation marks omitted.) General Statutes § 31-275(9)(A)(I). "Employer means any person, corporation, limited liability company . . . using the services of one or more employees for pay . . ." (Internal quotation marks omitted.) General Statutes § 31-275(10). "The act does not define an independent contractor. [The court has] in [worker's] compensation cases, uniformly given to the term its common-law definition." Bourgeois v. Cacciapuoti, 138 Conn. 317, 320, 84 A.2d 122 (1951). `The fundamental distinction between an employee and an independent contractor depends on the existence or nonexistence of the right to control the means and methods of work." (Emphasis in original; internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996). `The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact . . . The retention of the right to discharge . . . is a strong indication [of an employer-employee relationship] . . . The right to terminate [an employment] relationship without liability is not consistent with the concept of an independent contract . . . Moreover, payment of a worker at an hourly rate . . . is persuasive evidence that the status of the worker is that of an employee rather than that of an independent contractor." (Citations omitted; internal quotation marks omitted.) Latimer v. Administrator, 216 Conn. 237, 249, 579 A.2d 497 (1990).
"Other factors cited by the Latimer court to be considered in determining whether a person is an employee or independent contractor is whether the person is required to comply with certain general directives as to when their services are required . . . In Latimer, although the workers made known their hours of availability, the employer established the hours they were to work . . . The workers did not have any significant investment in the materials or tools necessary to perform their job . . . Significantly, unlike independent contractors, [the workers] were not in a position to realize profit or suffer a loss based on the service that they provided. Rather, they were paid an agreed hourly wage directly by the [employer]." (Citations omitted; internal quotation marks omitted.) Milam v. Collette, Superior Court, judicial district of New London, Docket No. 536396 (January 3, 1997, Hurley, J.); see Latimer v. Administrator, supra, 216 Conn. 250.
The evidence submitted establishes that there is a genuine issue of material fact as to whether Tony Phillips, in his role as helper, was an employee of DC Carpentry or an independent contractor.
D Conclusion
For the aforementioned reasons, the court finds that there are genuine issues of material fact and the defendants' motion for summary judgment is denied.
CT Page 12636
III THE DEFENDANTS' COUNTERCLAIM AND THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The defendants brought a counterclaim against the plaintiff for contractual indemnification for all damages and costs, including the costs of defense, involved in the lawsuit based upon the indemnification and hold harmless provision of the contract. The defendants also seek contractual indemnification based on the provision requiring the plaintiff to provide general liability insurance and his subsequent breach of that promise.The plaintiff moves for summary judgment on the ground that there is no genuine issue of material fact as to whether the plaintiff, individually, was not a party to the indemnification and hold harmless provision contained in the contractor's agreement or, alternatively, whether the provision is void as against public policy. The defendants object, arguing that there is a genuine issue of material fact concerning the identity of the contracting parties and that the indemnification and hold harmless provision does not violate public policy.
A Parties to the Contractor's Agreement
The plaintiff seeks summary judgment on the ground that there is no genuine issue of material fact as to whether the plaintiff, individually, was a party to the contractor's agreement or the hold harmless provision contained therein. According to the plaintiff, the contractor's agreement identifies DC Carpentry as the contractor and the plaintiff as the owner of DC Carpentry. The plaintiff contends that his signature on the contractor's agreement was in his capacity as owner of DC Carpentry. Therefore, he argues, it is DC Carpentry, and not the plaintiff, that is subject to the indemnification and hold harmless provision. In support of his argument, the plaintiff submits copies of payment checks written by the defendants and issued to DC Carpentry from June 29, 2007, to October 20, 2007. Additionally, the plaintiff submits excerpts from Susan Phillips' deposition in which she testified that DC Carpentry was the party with whom she and her husband entered into the contractor's agreement to perform work at their home. The plaintiff also submits his own affidavit attesting that he executed the contractor's agreement in his capacity as owner of DC Carpentry and that it was not his intention to bind himself personally.
Additionally, the plaintiff argues that the contractor's agreement indicated that DC Carpentry, not the plaintiff individually, was to carry general liability insurance. The plaintiff submits a certificate of liability insurance listing DC Carpentry as the insured as well as a copy of a contractors' liability policy issued by NGM Insurance Company to DC Carpentry. According to the plaintiff, these documents show that DC Carpentry did in fact carry general liability insurance at the time of the contractor's agreement and was, therefore, not in breach of that agreement.
The defendants object, arguing that the contractor's agreement contains ambiguities as to the identity of the contractor. In support of their argument, the defendants submit the contractor's agreement noting that on the first page "DC Carpentry, LLC" is identified as the contractor but on the second page, in the "signature of contractor" space, the plaintiff signed as "Daniel Cappello" not "DC Carpentry, LLC, by Daniel Cappello." The defendants also contend that all ambiguities in the contract should be construed against the drafter; they submit excerpts from the plaintiff's deposition in which the plaintiff testified that he drafted the contractor's agreement based upon a template.
"Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous . . . If a contract is unambiguous within its four corners, intent of the parties is a question of law . . . When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact . . ." McCarthy v. Chromium Process Co., 127 Conn.App. 324, 330, 13 A.3d 715 (2011). Moreover, "[w]hen there is ambiguity, [the court] must construe contractual terms against the drafter." (Internal quotation marks omitted.) Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985).
"[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings . . . [S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . Our Supreme Court has held that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact . . . Intent is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case." (Citations omitted; internal quotation marks omitted.) Telerent Leasing Corp. v. Morgan Inn, LLC, Superior Court, judicial district of New London, Docket No. 565197 (January 24, 2005, Hurley, J.T.R.).
In the present case, page one of the contractor's agreement identifies the parties as follows: DC Carpentry, LLC as "Contractor," Daniel Cappello owner of DC Carpentry, LLC, and Susan and Tony Phillips as "Owner." The contractor's agreement states: "This Agreement is made on 6/4/07, between Tony Susan Philips (Owners) and DC Carpentry, LLC Contractor . . ." In the signature area, there is a space for "signature of contractor" and "name of contractor" both of which are filled in with "Daniel Cappello." The plaintiff did not include a limitation that the signature was in his capacity as owner of DC Carpentry. The court notes, however, that the plaintiff's deposition testimony indicates that he may not have understood the difference between himself and his business entity such that signing the contractor's agreement without a limitation could expose him to liability. Specifically, the plaintiff's deposition contains the following exchange:
Q. Is there any reason why you did not put, as the name of the contractor and the signature of the contractor, DC Carpentry, LLC, by Daniel Cappello?
A. I don't know. Because I own the company? I don't know.
Q. Do you understand that there is a difference between a corporation, let's say, and an individual?
A. No.
Q.[W]hen your father had the corporation John Cappello Sons, did you consider that they were one and the same or that they were separate entities?
A. I don't know. I don't know how to answer that.
Despite this evidence, "[i]n ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The contractor's agreement is ambiguous and a genuine issue of material fact exists as to whether the plaintiff is, therefore, subject to the indemnification and hold harmless provision as well as the requirement to carry general liability insurance. See Rund v. Melillo, 63 Conn.App. 216, 772 A.2d 774 (2001) (subcontract was ambiguous on whether parties bound themselves both in their individual and corporate capacities).
B Public Policy
Paragraph seven of the contractor's agreement states: "The Contractor agrees to indemnify and hold the Owners harmless from any claims or liability arising from the Contractor's work under this agreement. The Contractor agrees to carry general liability insurance, automobile insurance, workers' compensation insurance, and employer's liability insurance in an amount exceeding the value of all work done under this agreement."
The plaintiff argues that this clause is barred by General Statutes § 52-572k(a) which provides: "Any covenant, promise, agreement or understanding entered into in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of any building, structure or appurtenances thereto including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of such promisee, such promisee's agents or employees, is against public policy and void, provided this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by a licensed insurer." According to the plaintiff, the hold harmless and indemnification clause is void because it attempts to hold the plaintiff individually responsible for all injuries arising from the contractor's work without limitation as to whether the plaintiff's or the defendants' negligence actually caused the injury. Therefore, the plaintiff argues, the defendants interpret the clause in a manner that would release the defendants from liability resulting from their own negligence and is, therefore, void. The defendants object, arguing that the clause is not subject to General Statutes § 52-572k because the clause requires that the plaintiff carry insurance. Moreover, the defendants argue that General Statutes § 52-372k is unconstitutional insofar as it interferes with the freedom to contract.
As an initial matter, the court notes that the defendants offered no relevant support for their contention that General Statutes § 52-572k is unconstitutional and did not adequately brief this issue. "We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Hodgate v. Ferraro, 123 Conn.App. 443, 470 n. 11, 3 A.3d 92 (2010). Accord Carr v. J.C. Penney Co., Superior Court, judicial district of New Haven, Docket No. CV 08 5022059S (March 16, 2011, Burke, J.) ("[T]he court is not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.") (Internal quotation marks omitted.)
The defendants failed to provide the requisite legal analysis with citation to any Connecticut authority, or other sufficient analysis, to demonstrate that General Statutes § 52-572k is unconstitutional. Therefore, the court considers this argument abandoned.
The defendants cite Kealey Pharmacy Home Care Service, Inc. v. Walgreen Co., 539 F.Sup. 1357, 1368 (W.D.Wis. 1982), aff'd, 761 F.2d 345 (7th Cir. 1985), as support for their argument that General Statutes § 52-572k interferes with the liberty to contract and, therefore, violates the Fourteenth Amendment of the United States Constitution. The defendants provide no analysis of the applicability of Kealey to General Statutes § 52-572k. In Kealey, the court held that the Wisconsin Fair Dealership Law was not an unconstitutional interference with the right to contract. Kealey Pharmacy Home Care Service, Inc. v. Walgreen Co., supra, 539 F.Sup. 1368-70.
The legislature, in adopting General Statutes § 52-572k, "specifically [outlawed] hold harmless agreements in the construction industry . . ." Burkle v. Car Truck Leasing Co., 1 Conn.App. 54, 58, 467 A.2d 1255 (1982). One court explained the application of General Statutes § 52-572k as follows: "In the context of a construction contract, then, suppose that B has agreed to indemnify A. In the indemnification context, the agreement will be triggered only if A is found to be liable to P, that is, where the underlying case sounds in negligence, only where negligence of A is a substantial factor in causing injury to P. A, whose negligence has been found to have been a substantial factor in causing injury to P, seeks indemnification from B. Suppose . . . that B's negligence is also a substantial factor in causing P's injury. If B were to indemnify A, B would necessarily be holding A harmless against A's own negligence. The elimination of the word `sole' modifying negligence in 2001 broadened the reach of the statute: prior to 2001, the prohibition extended only to situations where P's injury was caused by the `sole negligence' of A." (Emphasis in original.) Patt v. Metropolitan District Commission, Superior Court, complex litigation docket at Middlesex, Docket No. X04 044003558 (December 20, 2006, Beach, J.) ( 42 Conn. L. Rptr. 522, 524).
In the present case, paragraph seven of the contractor's agreement states in relevant part: "The Contractor agrees to indemnify and hold the Owners harmless from any claims or liability arising from the Contractor's work under this agreement." This provision violates General Statutes § 52-572k because it would require the plaintiff to indemnify and hold the defendants harmless for the defendants' own negligence.
However, "[w]hat [General Statutes § 52-572k] does not cover is agreements to provide a defense — as opposed to indemnification — nor does it cover any obligation to provide an insurance policy in which one party might name a second party as an additional insured, although in the latter instance the dispute, if any, would likely be with the insurance carrier rather than with the party who was obligated to obtain the insurance." Young v. King Bros., Inc., Superior Court, judicial district of New Britain, Docket No. CV 06 5000792 (September 2, 2009, Jenkins Pittman, J.). "An agreement to procure insurance is not an agreement to indemnify or hold harmless, and the distinction between the two is well recognized . . . Whereas the essence of an indemnification agreement is to relieve the promisee of liability, an agreement to procure insurance specifically anticipates the promisee's continued responsibility for its own negligence for which the promisor is obligated to furnish insurance . . . Moreover, this particular distinction is what renders indemnification, but not insurance-procurement, agreements violative of the public policies underlying [statutes which make agreements to exempt owners and contractors from liability for negligence void and unenforceable]. While an agreement purporting to hold an owner or a general contractor free from liability for its own negligence undermines the strong public policy of placing and keeping responsibility for maintaining a safe workplace on those parties . . . the same cannot be said for an agreement which simply obligates one of the parties to a construction contract to obtain a liability policy insuring the other . . ." (Citations omitted; internal quotation marks omitted.) Kinney v. G.W. Lisk Co., 76 N.Y.2d 215, 218, 556 N.E.2d 1090 (1990); see Royal Indemnity Co. v. Terra Firma, Inc., 50 Conn.Sup. 563, 576, 948 A.2d 1101 [ 41 Conn. L. Rptr. 761] (2006), citing Kinney v. G.W. Lisk Co., supra, 76 N.Y.2d 215.
In the present case, paragraph seven of the contractor's agreement states in relevant part: "The Contractor agrees to carry general liability insurance, automobile insurance, workers' compensation insurance, and employer's liability insurance in an amount exceeding the value of all work done under this agreement." The plaintiff argues that the contractor's agreement did not require DC Carpentry to name the defendants as additional insureds on the general liability insurance policy. Rather, the contractor's agreement indicated only that DC Carpentry was to carry general liability insurance, which the plaintiff contends DC Carpentry did. The plaintiff submits a certificate of liability insurance listing DC Carpentry as the insured and a copy of the contractor's policy issued by NGM Insurance Company to DC Carpentry. The defendants contend that there is a genuine issue of material fact concerning whether the plaintiff was a party to the contractor's agreement and thereby required to carry general liability insurance.
Regardless of whether the plaintiff or DC Carpentry was required to carry general liability insurance under the contractor's agreement, there is no genuine issue in dispute that the contractor's agreement did not require that the defendants be named as additional insureds on the policy. Therefore, the defendants would not be entitled to any indemnification by way of the general liability insurance policy because they were never beneficiaries of the coverage provided by any general liability insurance policy. Moreover, although the defendants argue that the plaintiff breached the contractor's agreement by failing to procure general liability insurance, any breach on the part of the plaintiff or DC Carpentry would not result in ascertainable harm to the defendants. Nonetheless, there is a genuine issue of material fact as to whether the plaintiff was a party to the contractor's agreement and, therefore, whether he, personally, was required to carry general liability insurance. "If a party has suffered no demonstrable harm . . . that party may be entitled . . . to nominal damages for breach of contract." Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 254, 919 A.2d 421 (2007). "Nominal damages mean no damages at all. They exist only in name, and not in amount. In the quaint language of an old writer, they are `a mere peg to hang costs on.' They are such as are to be awarded in a case where there has been a breach of a contract, and no actual damages whatever have been or can be shown . . . Damages . . . can only be technical for a breach of contract without injurious consequences." (Citations omitted; internal quotation marks omitted.) Beattie v. New York, N.H. H.R.R. Co., 84 Conn. 555, 80 A. 709 (1911). Thus, the defendants may be entitled to nominal damages if the plaintiff, personally, breached the contractor's agreement by failing to carry general liability insurance.
The provision in the contractor's agreement requiring general liability insurance does not violate General Statutes § 52-572k. There is, however, a genuine issue of material fact as to whether the plaintiff, himself, was required to carry general liability insurance pursuant to the contractor's agreement.
C Conclusion
The hold harmless and indemnification provision of paragraph seven of the contractor's agreement is void as against public policy. Therefore, the plaintiff's motion for summary judgment is granted as to the following provision: "The Contractor agrees to indemnify and hold the Owners harmless from any claims or liability arising from the Contractor's work under this agreement."
The provision in paragraph seven requiring general liability insurance, however, is not void as against public policy. There is a genuine issue of material fact as to whether the plaintiff was a party to the contractor's agreement and thereby required to carry general liability insurance. Therefore, the plaintiff's motion for summary judgment is denied as to the following provision of the contractor's agreement: "The Contractor agrees to carry general liability insurance, automobile insurance, workers' compensation insurance, and employer's liability insurance in an amount exceeding the value of all work done under this agreement."
So ordered.