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TRAVELERS INDEMNITY CO. OF AMERICA V. SONITROL SECURITY OF HARTFORD

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

CV044001676

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF HART-FORD, 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.

JUDGES: Christine E. KELLER, Judge.

OPINION BY: 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 Se-curity 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 com-mercial 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 per-form, 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 indemnifica-tion, 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, as-serting 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 de-fenses 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 enti-tled to judgment as a matter of law." "In deciding a motion for summary judgment, the trial court must view the evi-dence 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 un-der 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 Par-tridge 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 bod-ily injury to persons or damage to property caused by or resulting from the sole negligence of such pro-misee, 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 con-tract. 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, judi-cial 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 sug-gests 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 cer-tain 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. Soni-trol 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 per-manent [*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, 1 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 Chemi-cals., Inc. v. Westinghouse Security Systems., Inc., 86 A.D.2d 768, 448 N.Y.S.2d 279, 282 (1982).

 

1 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 where-under 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."

[*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 conclu-sion 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 ap-plies 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 un-der 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 him-self 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 reason-able 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 ulti-mately 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 negli-gence 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 in-demnity and liquidated damage clauses in circumstances where the dangers are claimed to be caused by failure to prop-erly report a casualty in progress . . . Indemnity provisions of this nature are not violative of public policy . . . The un-ambiguous 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 Proper-ties, 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 contrac-tual 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 excul-pated 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 will-ingness 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 judg-ment 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.