Travelers Indemnity Co. of America v. Sonitrol Security of Hartford


CV044001676

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF HARTFORD, AT HARTFORD

2006 Conn. Super. LEXIS 889


March 24, 2006, Decided
March 24, 2006, Filed

NOTICE: [*1] THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER
APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION
OF THE STATUS OF THIS CASE.


CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff insurer sued defendant fire alarm company for
negligence. The fire alarm company sued apportionment defendant property
owner and later cross claimed against it to enforce a hold harmless clause
in a contract. The property owner filed a motion for summary judgment as to
the claim against it by the fire alarm company.

OVERVIEW: The insurer provided property insurance to commercial tenants in
the property owner's building. The fire alarm company installed and
monitored a sprinkler alarm system in the property owner's building.
Allegedly, a fire occurred at the building, which activated the sprinkler
system and electronically sent an alarm signal to the fire alarm company.
The fire alarm company allegedly received the alarm, but failed to call the
fire department, which could have shut off the sprinklers. The sprinklers
discharged water for hours, resulting in extensive property damage. The
basis for the fire alarm company's claim against the property owner was a
contract between the two parties, which included a hold harmless agreement
running in favor of the fire alarm company. The court found that (1) the
property owner's motion for summary judgment was timely filed under Conn.
Gen. Prac. Book, R. Super. Ct. § 17-44; (2) a genuine issue of material fact
existed as to whether Conn. Gen. Stat. § 52-572k applied to the parties'
indemnity agreement; and (3) a genuine issue of material fact existed as to
whether the contract was void as against public policy. Thus, an award of
summary judgment was not proper.

OUTCOME: The property owner's motion for summary judgment on the cross claim
of the fire alarm company was denied.

CORE TERMS: summary judgment, alarm, public policy, void, hold harmless,
appurtenance, alarm system, sprinkler, real property, unenforceable,
exculpatory, monitoring, sprinkler system, cross claim, installation,
repair, construction contracts, indemnity clause, own negligence, matter of
law, fire alarm, contractual, exculpation, scheduling, relieving, indemnity,
genuine issue of material fact, contractual language, indemnity agreement,
commercial building

LexisNexis(R) Headnotes Show Headnotes


JUDGES: Christine E. KELLER, Judge.

OPINIONBY: Christine E. Keller

OPINION: MEMORANDUM OF DECISION ON CROSS-CLAIM DEFENDANT PARTRIDGE SQUARE,
LLC'S MOTION FOR SUMMARY JUDGMENT

I.

Factual Background

The Travelers Indemnity Company of America, property insurer for two
commercial tenants, is suing Sonitrol Security of Hartford, (Sonitrol),
which installed and monitored a sprinkler alarm on premises owned by
Partridge Square, LLC in Rocky Hill, Connecticut. Allegedly, a fire occurred
on premises located at 2139 Silas Deane Highway, a commercial property,
which activated the sprinkler system and electronically sent an alarm signal
to a site monitored by Sonitrol. Sonitrol allegedly received the alarm, but
failed to call the town fire department, which could have shut off the
sprinklers. The sprinklers discharged water for four hours, resulting in
extensive property damage.

Sonitrol sued Partridge Square, LLC as an apportionment defendant and later
cross claimed against it. The basis for the cross claim is the contract
between Partridge [*2] Square and Sonitrol, which includes a hold harmless
agreement running in favor of Sonitrol. The contract requires Partridge
Square, when it has the property of others in its custody, or the alarm
system extends to protect the persons or property of others, to indenmify,
defend and hold harmless Sonitrol, its agents and employees for and against
all claims brought by owners of said property arising out of Sonitrol's
service. The hold harmless provision applies to all claims regardless of
cause, including Sonitrol's performance or failure to perform, and including
defects in products, design, installation, service, operation or
non-operation of the alarm system, whether based upon negligence, active or
passive, express or implied contract, warranty, contribution or
indemnification, or strict or product liability on the part of Sonitrol.

Partridge Square has raised two special defenses in its amended answer to
the cross claim of December 5, 2005, asserting that the contractual hold
harmless provision is (1) void as against public policy pursuant to General
Statutes § 52-572k; and (2) void as against public policy because Sonitrol
seeks to relieve itself from [*3] the consequences of its own negligence.
Partridge Square has moved for summary judgment, claiming that the claims
raised in its special defenses should bar Sonitrol from seeking
indemnification from it as a matter of law. Sonitrol has filed an objection
on the basis that Partridge Square did not get the court's permission to
file its motion and also argues that Sonitrol's claim for indemnity against
Partridge Square is not barred by either of Partridge Square's special
defenses.

II

Standard of Review

Practice Book § 17-49 provides ". . . summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof submitted show
that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." "In deciding a motion for
summary judgment, the trial court must view the evidence in the light most
favorable to the nonmoving party . . . The party seeking summary judgment
has the burden of showing the absence of any genuine issue of material facts
which, under applicable principles of substantive law, entitle him to a
judgment as a matter of law . . ." (Citations omitted; internal quotation
marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222,
237, 842 A.2d 1089 (2004). [*4] "Summary judgment is appropriate only if a
fair and reasonable person could conclude only one way . . ." (Citations
omitted, internal quotation marks omitted.) Dugan v. Mobile Medical Testing
Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). For purposes of
this motion, neither party is disputing the existence of the contractual
hold harmless provision. The dispute centers on its enforceability under
Connecticut law.

III

A. The Motion for Summary Judgment is Timely Filed

Sonitrol claims that Partridge Square's motion for summary judgment should
be denied because it failed to move for permission to file this motion
pursuant to Practice Book § 17-44, as the case has been assigned for trial.
The court finds this motion is properly before the court. On or about May 5,
2005, a pretrial was convened and a scheduling order was issued by the court
(Stengel, J.). This scheduling order provided that any motion for summary
judgment should be filed on or before February 8, 2006. Hence, the
scheduling order gave permission to any party to file such a motion as long
as it was filed before February 8, 2006. Partridge Square's motion was filed
on February 8, 2006.

B. There [*5] is a Genuine Issue of Material Fact as to Whether General
Statutes § 52-572 Applies

Partridge Square claims General Statutes § 52-572k applies to the type of
alarm service agreement into which Partridge Square and Sonitrol entered.
That statute provides, in pertinent part:


(a) 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 damages arising out of bodily injury to
persons or damage to property caused by or resulting from the sole
negligence of such promisee, his agents, or employees, is against public
policy and void . . .

For § 52-572k to be applicable, the agreement between the parties must arise
out of a construction contract. See Braunfeld v. Chase Manhattan Bank of
State, 1998 Conn. Super. LEXIS 2985, Superior Court, judicial district of
Stamford/Norwalk at Stamford, Docket No. 150010 (October 28, 1998, D'Andrea,
J. [*6] ) (23 Conn. L. Rptr. 279); Courter v. Becker, 1998 Conn. Super.
LEXIS 1153, Superior Court, judicial district of New London at New London,
Docket No. 537716 (April 27, 1998, Handy, J.) (22 Conn. L. Rptr. 166).


The title of § 52-572k, "Hold harmless clause against public policy in
certain construction contracts," clearly suggests that application of the
statute was intended to be limited to construction contracts. Albany
Insurance Co. v. United Alarm Services, 194 F. Supp. 2d 87, 95 (D.Conn.
2002). In construing a statute, "the title of the legislation is an aid to
statutory construction." Id., (quoting P.X. Restaurant, Inc. v. Town of
Windsor, 189 Conn. 153, 454 A.2d 1258 (1983)). "The legislature, in
specifically outlawing hold harmless agreements in the construction
industry, showed an intention that such a practice not be deemed against
public policy in other situations . . ." Burkle v. Car & Truck Leasing Co.,
Inc., 1 Conn.App. 54, 58, 467 A.2d 1255 (1983). The legislative history of §
52-572k also supports the conclusion that it is strictly applicable to
construction contracts which relieve a person from liability resulting from
his negligence. [*7] See 20 S. Proc., Pt. 5, 1977 Sess., pp. 1933-34,
remarks of Senator Ballen; 20 H.R. Proc. Pt. 10, 1977 Sess., pp. 4298-99,
4303-04, remarks of Representative Frankel.

The service agreement between Sonitrol and Partridge Square pertains to the
installation and subsequent monitoring of a fire alarm system in a
commercial building. Facts pertaining to the nature of the installation and
the reason for certain contractual provisions, notably paragraph 8 of the
parties' agreement, may help to determine whether this is the type of
contract that the legislature intended to be governed by § 52-572k.

Partridge Square argues that the contract with Sonitrol relates to the
"maintenance" of "appurtenances" to a building and that this includes
equipment attached to the building, such as the sprinkler system and the
alarm system itself. Sonitrol argues that even assuming a sprinkler system
is an appurtenance, this contract does not relate to the installation or
maintenance of the sprinkler system itself, but merely to an alarm system
monitoring the sprinklers. "An appurtenance is defined as "an article
adapted to the use of the property to which it is connected and which was
intended to be a permanent [*8] accession to the freehold." Black's Law
Dictionary 103 (6th Ed. 1990). Albany Insurance. Co. v. United Alarm
Services, Inc., supra, 194 F. Supp. 2d 96. There is no Connecticut authority
holding that an alarm system is an appurtenance within the meaning of §
52-572k. It has been held, under a New York law similar to Connecticut's
statute, n1 that "contracts for installing and maintaining alarm systems are
not contracts affecting real property or for services rendered in connection
with construction, maintenance and repair of real property . . ." Id., 96,
(quoting Antical Chemicals., Inc. v. Westinghouse Security Systems., Inc.,
86 A.D.2d 768, 448 N.Y.S.2d 279, 282 (1982).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 NY CLS Gen Oblig § 5-323 (2006) states: "Every covenant agreement or
understanding in or in connection with or collateral to any contract or
agreement affecting real property made or entered into, whereby or
whereunder a contractor exempts himself from liability for injuries to
person or property caused by or resulting from the negligence of such
contractor, his agent, servants or employees, as a result of work performed
or services rendered in connection with the construction, maintenance and
repair of real property or its appurtenances, shall be deemed to be void as
against public policy and wholly unenforceable."


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*9]

In contrast, in Lodge v. Arett Sales Corp., Superior Court, judicial
district of Waterbury, Docket No. CV 90-0098122 (October 11, 1996, Sullivan,
J.), rev'd on other grounds, 246 Conn. 563, 717 A.2d 215 (1998), the trial
court determined that the preliminary activity of installing "supervisory
sprinkler supervision service" and the fact that water pipes, indisputably
fixtures, were altered by having new switches affixed to them might be
considered a "construction, alteration, repair or maintenance of a building,
structure or appurtenance thereto." It is not possible to draw any
conclusion as to whether the alarm system is an appurtenance from the facts
presented to the court.

For the foregoing reasons, the court finds that there is a genuine issue of
material fact as to whether § 52-572k applies to the parties' indemnity
agreement and cannot be a basis for granting Partridge Square's motion for
summary judgment.

IV

C. Whether The Contract is Unenforceable Under

Hanks v. Powder Ridge Restaurant Corp. Cannot Be Resolved By Summary
Judgment

Partridge Square's second special defense relies on the holding in Hanks v.
Powder Ridge Restaurant Corp., 276 Conn. 314, 327, 885 A.2d 734 (2005),
[*10] which held that an exculpatory clause relieving a ski resort operator
from liability for injuries to certain recreational snowtubers was void as
against public policy. Hanks was a personal injury suit involving an
indemnity clause signed by an individual invitee to a ski facility to engage
in a recreation activity under the care and control of the defendant.

This case, in contrast, is a subrogation action to recover property damages
and lost business income. It involves monitoring, via phone lines, of a
commercial building's fire alarm system. Sonitrol does not assume the care
and control of the commercial premises. There are key differences between
the relationship of the contracting parties and interests at issue in the
Hanks case and those in this case which may render Partridge Square's
reliance on factors enumerated in Tunkl v. Regents of the University of
California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963) misplaced. In
Hanks, the Connecticut Supreme Court examined decisions in other
jurisdictions that sought to establish formulas to determine under what
circumstances exculpatory contracts should be held to be void. Tunkl, the
principal [*11] case, listed factors including whether (1) the agreement
concerns a business of a type suitable for public regulation; (2) the party
seeking exculpation is engaged in performing a service of great importance
to the public; (3) the party holds himself out as willing to perform this
service for any member of the public who seeks it, or at least for any
member coming within certain established standards; (4) as a result of the
essential nature of the service in the economic setting of the transaction,
the party invoking exculpation possesses a decisive advantage of bargaining
strength against any member of the public who seeks his services; (5) in
exercising a superior bargaining power the party confronts the public with a
standardized adhesion contract of exculpation and makes no provision whereby
a purchase may pay additional reasonable fees and obtain protection against
negligence; and (6) as a result of the transaction, the person or property
of the purchaser is placed under the control of the seller, subject to the
risk of carelessness by the seller or his agents. Tunkl v. Regents of the
University of California, supra, 60 Cal.2d 98-101. The Connecticut Supreme
Court [*12] in Hanks ultimately determined that although it would be guided
by the Tunkl factors, its analysis would be "informed by any other factors
that may be relevant given the factual circumstances of the case and current
societal expectations." Hanks v. Powder Ridge Restaurant Corp., supra, 330.

The court doubts that the Hanks criteria for voiding an exculpatory
agreement will prove to be applicable to this case. Partridge Square
concedes that exculpatory and/or hold harmless clauses are very common, if
not standard, in fire alarm contracts, but cites no authority that has found
any such clause relieving an alarm company of ordinary negligence void as
against public policy. As noted in Albany Insurance Co. v. United Alarm
Services, Inc., supra, 194 F. Supp. 2d 96, n.3, the Connecticut legislature
has not specifically disallowed hold harmless or exculpatory clauses in
contracts for monitoring or maintaining alarm systems, and there is no
appellate authority that disallows them. The trial court in Lodge v. Arett
Sales Corp., supra, which involved allegations of negligence against an
alarm company, Wells Fargo, and a similar indemnity agreement [*13] held,
"There are a multitude of reported cases which uphold these indemnity and
liquidated damage clauses in circumstances where the dangers are claimed to
be caused by failure to properly report a casualty in progress . . .
Indemnity provisions of this nature are not violative of public policy . . .
The unambiguous language in an indemnity clause should be given effect as
expressing the parties' intention." Id., 4-5. It has been held that a
"contract voluntarily and fairly made should be held valid and enforceable
by the court." Collins v. Sears Roebuck & Co., 164 Conn. 369, 377, 321 A.2d
444 (1973). See Arruda v. Donham & Dover Investment Properties, 1994 Conn.
Super. LEXIS 1803, Superior Court, Judicial District of Hartford/New Britain
At Hartford, Docket No. CV93-0520972S (July 11, 1994, Corradino, J.) (12
Conn. L. Rptr. 112) (holding that a contract provision absolving owners of
self-storage units from the consequences of their own negligence was not
void as against public policy); Sommer v. Federal Signal Corp., 79 N.Y.2d
540, 553, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992) (holding that contractual
language in an alarm contract relieving the alarm company of liability for
ordinary negligence [*14] is enforceable, noting that limitations on
liability keep alarm services affordable): First Financial Ins. v. Purolator
Security, Inc., 69 Ill. App. 3d 413, 388 N.E.2d 17, 26 Ill. Dec. 393 (1979),
(holding that an alarm protection service contract which exculpated the
alarm company from liability for its own negligence was not void as against
public policy).

Factors that may be relevant to whether an indemnity clause is unenforceable
must be determined in light of the factual circumstances of a particular
case. Thus, the issue of whether the exculpatory clause in the contract
between these parties is unenforceable as a matter of public policy is not
appropriate for summary judgment. There are genuine issues of material fact
such as the parties' respective bargaining power, the clarity of the
contractual language, the willingness of Sonitrol to allow the client to pay
for Sonitrol's assumption of greater liability, and how important Sonitrol's
operations in connection with Partridge Square's commercial building are to
public safety. Therefore, summary judgment cannot enter on the basis of the
second special defense.

Conclusion

For all of the foregoing reasons, the [*15] cross claim defendant,
Partridge Square, LLC's motion for summary judgment on the cross claim of
Sonitrol Security of Hartford, Inc., is denied.

KELLER, Judge.