CONN. GEN. LIFE INS. CO. v. SVA

Civ. No. H-89-430 (PCD)

743 F. Supp. 107 (1990) | Cited 0 times | D. Connecticut | July 26, 1990

RULING ON MOTION TO DISMISS

Plaintiffs, owner/lessor and lessee of the Metro OfficeBuilding in Hartford, commenced this action againstdefendant, SVA, Inc. ("SVA"), alleging damages from anincident of June 16, 1987 during which two flexibleconnectors, supplied by SVA, in the building's chilled waterpiping system ruptured causing water leaks. The complaint wasbrought pursuant to Connecticut's Products Liability Act,Conn.Gen.Stat. § 52-572m, et seq. Plaintiffs have brought asimilar action, H-88-712 (PCD) consolidated with this case,against Grodsky Service, Inc. ("Grodsky"), which installed theconnectors.

SVA's third-party complaint against Grodsky, thethird-party defendant, seeks contribution and indemnificationalleging negligence by Grodsky in selecting and installingthe connectors1. Grodsky moves to dismiss the third-partycomplaint for lack of personal jurisdiction underConnecticut's long-arm statute. In addition, Grodsky moves todismiss the claim for indemnification (Count II) for failureto state a claim, Fed.R.Civ.P. 12(b)(6). For the reasons setforth below, Grodsky's motion to dismiss is denied.

DISCUSSION

1. Personal Jurisdiction

The law of the forum state governs the exercise of inpersonam jurisdiction in a diversity action. Hoffritz ForCutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985);Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963) (en banc). The existence of personal jurisdictioninvolves a two-step analysis. First, it must be determinedwhether the state's long-arm statute applies to the defendant.Second, if the statute is applicable, it mustbe determined whether the exercise of the jurisdictioncomports with due process. McFaddin v. National ExecutiveSearch, Inc., 354 F. Supp. 1166, 1168 (D.Conn. 1973); LombardBros. v. General Asset Management Co., 190 Conn. 245, 250,460 A.2d 481 (1983).

Grodsky maintains that SVA, a foreign corporation, cannotbring suit, pursuant to § 33-411(c), against another foreigncorporation. Section 33-411(c) provides that:

every foreign corporation shall be subject to suit in this state, whether or not such foreign corporation is transacting or has transacted business in this state by a resident of this state or by a person having a usual place of business in this state.

Grodsky claims that SVA, a Massachusetts corporation, cannotassert long-arm jurisdiction over Grodsky, anotherMassachusetts corporation. SVA argues that § 33-411(a) grantsjurisdiction over a foreign corporation, regardless of theplaintiff's status or ties to the forum.

While SVA relies on § 33-411(a) as a basis for jurisdiction,sub-section (a) does not control because its service of processprovisions may only be invoked in accordance with sub-section(c)'s grant of jurisdictional authority. Cf. Carriers Ins. Co.v. American Steel Foundries, No. 194172, slip op. at 4(Conn.Super.Ct. Oct. 13, 1981). Plaintiff must meet therequirements of § 33-411(c) to sue a foreign corporation in thecourts of this state. Carriers Ins., No. 194172 at 4.Nonetheless, the issue is not whether Grodsky is a foreigncorporation within the meaning of the statute but whether SVAcan rely on the statute to bring suit against Grodsky.

Section 33-411(c) explicitly extends the privilege oflong-arm jurisdiction only to parties who reside in the stateor have a usual place of business in the state. See Beachboardv. Trustees of Columbia Univ., 6 Conn. App. 43, 45,502 A.2d 951 (1986), cert. denied, 199 Conn. 801, 505 A.2d 1249 (1986);see also, Edelman v. Lippincott Co., Civil No. B-88-426(D.Conn. 1989) Carriers Ins., No. 194172. "Corporations canqualify as plaintiffs only by having a usual place of businessin this state, since even a domestic corporation cannot beregarded as `resident' of the state." E. Stephenson,Connecticut Civil Procedure, Section 30 at 118 (2d ed. 1979).SVA acknowledges that it is a foreign corporation with aprincipal place of business in Massachusetts not Connecticut.Complaint at ¶ 3, Answer at ¶ 2. As a plaintiff, SVA would beprecluded from bringing an action against Grodsky underConnecticut's long-arm statute.

However, the inability of a plaintiff to invoke § 33-411 doesnot bar the third-party plaintiff from impleading thethird-party defendant in an action already properly commenced."Section 33-411(c) is directed toward assertions of originaljurisdiction — not extensions of the existing jurisdiction tothird-parties." Dalheim v. Sequemat, Inc., Civil No. N-85-134(PCD) (D.Conn. Nov. 12, 1986), Ruling on Motion to Dismiss at6. Where the court has jurisdiction over the underlying claim,the court does have personal jurisdiction over an impleadedparty. Id. at 5-6.

Here, the third-party plaintiff, a proper defendant in theoriginal action, has impleaded the third-party defendant inaccordance with Fed.R.Civ.P. 14. Since there is no disputethat the court has jurisdiction over the underlying claim,the question then becomes whether the third-party plaintiffmay implead a foreign corporation. Section 52-102a,Conn.Gen.Stat., provides: "[a] defendant in any civil actionmay move the court for permission as a third-party plaintiffto serve [process] . . . upon a person not a party to theaction who is or may be liable to him for all or part ofplaintiff's claim against him."

SVA, as a foreign corporation, has the same rightsavailable to domestic corporations and is not precluded fromresorting to all the powers available to it under the laws ofthis state. See Hartford Accident & Indem. Co. v. Bernblum,122 Conn. 583, 590-91, 191 A. 542 (1937), citing 8 Thompson,Corporations, Section 6585 (3d ed.). There is no allegationthat SVA is in violation of the Connecticut General Statutesand it therefore may implead Grodsky pursuant toConnecticut's impleader rules.

SVA has impleaded Grodsky, a foreign corporation reachableby Connecticut's impleader rules. To construe § 33-411 topreclude the exercise of jurisdiction over third-party claimswould thwart the purpose of the third-party claim rights of §52-102a and Fed.R.Civ.P. 14. Dalheim, Civil No. N-85-134, slipop. at 5-6. "The Connecticut legislature has not clearlyexpressed such an incongruent result." Id. Thus, this court hasjurisdiction over the third-party claims against Grodsky.

Grodsky does not contend nor can it be found that theexercise of jurisdiction over Grodsky violates due process."The constitutional touchstone of the determination whetheran exercise of personal jurisdiction comports with dueprocess remains whether the defendant purposefullyestablished minimum contacts in the forum state." Asahi MetalIndus. Co. v. Superior Court, 480 U.S. 102, 108-109, 107 S.Ct.1026, 1031, 94 L.Ed.2d 92 (1987) (citations omitted). Grodskypurposefully entered into a contract in Connecticut to performservices in Connecticut. In addition, Grodsky is a defendant ina consolidated action, Civil No. H-88-712, arising from thesame set of facts, in which it has impleaded SVA.

Accordingly, Grodsky's motion to dismiss for lack ofpersonal jurisdiction is denied.

2. Failure to State a Claim for Indemnity

The third-party complaint may not be dismissed "unless itappears beyond doubt" that the third-party plaintiff "canprove no set of facts in support of his claim which wouldentitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Thus, "the issue is notwhether a plaintiff will ultimately prevail but whether theclaimant is entitled to offer evidence to support the claims."Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40L.Ed.2d 90 (1974). In resolving a motion to dismiss underFed.R.Civ.P. 12(b)(6), all facts pleaded in the third-partycomplaint must be accepted as true and construed in the lightmost favorable to the non-moving party. Id.

SVA claims it is entitled to indemnification becauseGrodsky "was in control of the selection and/or installationof [the] flexible connectors" and, if they were defective asalleged, it was Grodsky which caused them to be defective."Third-party complaint Count II, ¶ 4. Although it is not clearfrom the record under which theory SVA brings its claim forindemnification, such a claim may be brought under either acontractual or tort theory of liability.

(a) Contract-Based Indemnity

In order to succeed under this theory, SVA must show eitheran express or implied contractual right to indemnification.In re General Dynamics Asbestos Cases, 539 F. Supp. 1106, 1109(D.Conn. 1982). There is no allegation of an express agreementand thus the only issue is whether Grodsky, as a purchaser ofgoods sold by SVA, implicitly agreed to indemnify SVA for theamount of any recovery by plaintiff. If such an impliedcontractual obligation exists, it must arise either byoperation of law or by the affirmative conduct of the parties."Id. at 1109-10.

First, it is well established that no such obligationarises as a matter of law. "A purchaser of a productundertakes no implicit obligation to reimburse themanufacturer or supplier thereof, who itself is found to havebreached to the plaintiff for any losses caused by thepurchaser's negligent use of the manufacturer's or supplier'sproduct." Id. at 1110. See Therrien v. Safeguard Mfg. Co.,180 Conn. 91, 95, 429 A.2d 808 (1980). "In sum, an impliedcontractual obligation does not arise by operation of law, but,as the term `contractual' suggests, only where consent to suchan obligation can fairly and reasonably be inferred fromaffirmative conduct of the purchaser other than the merepurchase of the product." In re General Dynamics, 539 F. Supp.at 1111.

There are no allegations of affirmative conduct by Grodskywhich would give rise to an implied obligation. SVA'sassertion that Grodsky "was in control of theselection of said flexible connectors," does not support aconclusion that there was a duty to indemnify. The casesrelied on by SVA, Roy v. Star Chopper Co., 442 F. Supp. 1010(D.R.I. 1977), aff'd, 584 F.2d 1124 (1st Cir. 1978), cert.denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979), andWeggen v. Elwell-Parker Electric Co., 510 F. Supp. 252 (S.D.Iowa1981), are not analogous because they both involve apurchaser's participation in the actual design of the product— not the mere, albeit voluntary, selection of the product.Grodsky is not alleged to have assumed the exclusiveresponsibility for designing, assembling and assuring thesafety of the product, in which case a warranty of safety maybe implied.

(b) Tort-Based Indemnity

"It is well established under Connecticut law that there isno contribution among joint tortfeasors." Cimino v. Yale Univ.,638 F. Supp. 952, 957 (D.Conn. 1986). However, an exception ismade where one tortfeasor, who is secondarily negligent, seeksindemnification from the primarily negligent tortfeasor. Aparty may seek indemnity on the ground of "primary" negligenceby showing that: (1) the indemnitor was negligent; (2) theindemnitor's negligence (rather than the indemnitee's) was thedirect, immediate cause of the injury; (3) the indemnitor wasin control of the situation to the exclusion of the indemnitee;(4) the indemnitee did not know of the indemnitor's negligence,had no reason to anticipate it, and could reasonably rely onthe indemnitor not to be negligent. Kaplan v. Merberg WreckingCorp., 152 Conn. 405, 416, 207 A.2d 732 (1965).

In order to survive a motion to dismiss, the third-partycomplaint must sufficiently invoke the principles of theKaplan test. Cimino, 638 F. Supp. at 959. While it is true thatthe merits of the claim raise questions of fact to be left tothe trier, Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573,452 A.2d 117 (1982), it is also recognized that the third-partycomplaint cannot survive scrutiny by merely pleading in aconclusory manner the test's elements. Cimino, 638 F. Supp. at959. Here, the third-party complaint alleges all four elementsof the Kaplan test. Third-party complaint, secondcount, ¶¶ 4-5. Grodsky claims that the second and third prongs,even if invoked, cannot as a matter of law be proven by SVA.

To determine the legal sufficiency of the third-partyclaim, the court must evaluate it against the background ofthe complaint. Cimino, 638 F. Supp. at 958. The complaintalleges that SVA is liable to the plaintiff, pursuant toConn.Gen.Stat. § 52-572m, et seq., for supplying defectivelydesigned, manufactured, and improperly prepared, tested, andinspected, flexible connectors. Complaint ¶¶ 10, 14. SVA arguesthat ¶ 14(d) of the complaint alleges that SVA "failed toprovide the proper connector for this installation" and thatsuch allegation focuses on the selection of the product and noton the condition of the product when it allegedly left thehands of SVA. Because any finding of liability against SVA fornegligence in providing a proper connector for the building mayinvolve primary negligence on the part of Grodsky in selectingthe connector, SVA would be entitled to indemnification fromGrodsky. Although it is not clear from the record who selectedthe connector, it is not inconceivable that Grodsky could befound primarily negligent in providing the proper connector.For example, SVA may be able to prove that Grodsky eitherrequested the inappropriate connector or provided SVA witherroneous information which lead to an inappropriate selectionon its part.2 This would entitle SVA to indemnity reliefand SVA should be allowed to offer evidence at trial to supportthe claim.

With the exception of the allegation in ¶ 14(d) of thethird-party complaint, the claims against SVA are all relatedto the status and condition of the flexible connectors while inthe hands of SVA and prior to purchase or any involvement byGrodsky. A finding of liability against SVA based onthese allegations would preclude a finding of furtherindemnity liability on Grodsky's part under theKaplan test. Grodsky's alleged negligent conduct following thepurchase would be secondary to SVA's negligence in supplying adefectively designed, manufactured, preparing, testing, andinspecting the flexible connectors. Except for allegationsrelated to paragraph 14(d) of the complaint, SVA cannot as amatter of law satisfy the Kaplan test and SVA cannot seekindemnification. Thus, Grodsky's motion to dismiss for failureto state a claim for indemnification is denied.

CONCLUSION

Accordingly, Grodsky's motion to dismiss is denied.

SO ORDERED.

1. By third-party complaint, dated August 30, 1989, SVAseeks contribution and indemnification from The Metraflex Co.("Metraflex"), the manufacturer of the flexible connectors,seeking contribution and indemnification.

2. If this basis for liability is presented and tried to ajury, special interrogatories will be given to the jury toascertain the basis of their finding of liability, ifany.

RULING ON MOTION TO DISMISS

Plaintiffs, owner/lessor and lessee of the Metro OfficeBuilding in Hartford, commenced this action againstdefendant, SVA, Inc. ("SVA"), alleging damages from anincident of June 16, 1987 during which two flexibleconnectors, supplied by SVA, in the building's chilled waterpiping system ruptured causing water leaks. The complaint wasbrought pursuant to Connecticut's Products Liability Act,Conn.Gen.Stat. § 52-572m, et seq. Plaintiffs have brought asimilar action, H-88-712 (PCD) consolidated with this case,against Grodsky Service, Inc. ("Grodsky"), which installed theconnectors.

SVA's third-party complaint against Grodsky, thethird-party defendant, seeks contribution and indemnificationalleging negligence by Grodsky in selecting and installingthe connectors1. Grodsky moves to dismiss the third-partycomplaint for lack of personal jurisdiction underConnecticut's long-arm statute. In addition, Grodsky moves todismiss the claim for indemnification (Count II) for failureto state a claim, Fed.R.Civ.P. 12(b)(6). For the reasons setforth below, Grodsky's motion to dismiss is denied.

DISCUSSION

1. Personal Jurisdiction

The law of the forum state governs the exercise of inpersonam jurisdiction in a diversity action. Hoffritz ForCutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985);Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963) (en banc). The existence of personal jurisdictioninvolves a two-step analysis. First, it must be determinedwhether the state's long-arm statute applies to the defendant.Second, if the statute is applicable, it mustbe determined whether the exercise of the jurisdictioncomports with due process. McFaddin v. National ExecutiveSearch, Inc., 354 F. Supp. 1166, 1168 (D.Conn. 1973); LombardBros. v. General Asset Management Co., 190 Conn. 245, 250,460 A.2d 481 (1983).

Grodsky maintains that SVA, a foreign corporation, cannotbring suit, pursuant to § 33-411(c), against another foreigncorporation. Section 33-411(c) provides that:

every foreign corporation shall be subject to suit in this state, whether or not such foreign corporation is transacting or has transacted business in this state by a resident of this state or by a person having a usual place of business in this state.

Grodsky claims that SVA, a Massachusetts corporation, cannotassert long-arm jurisdiction over Grodsky, anotherMassachusetts corporation. SVA argues that § 33-411(a) grantsjurisdiction over a foreign corporation, regardless of theplaintiff's status or ties to the forum.

While SVA relies on § 33-411(a) as a basis for jurisdiction,sub-section (a) does not control because its service of processprovisions may only be invoked in accordance with sub-section(c)'s grant of jurisdictional authority. Cf. Carriers Ins. Co.v. American Steel Foundries, No. 194172, slip op. at 4(Conn.Super.Ct. Oct. 13, 1981). Plaintiff must meet therequirements of § 33-411(c) to sue a foreign corporation in thecourts of this state. Carriers Ins., No. 194172 at 4.Nonetheless, the issue is not whether Grodsky is a foreigncorporation within the meaning of the statute but whether SVAcan rely on the statute to bring suit against Grodsky.

Section 33-411(c) explicitly extends the privilege oflong-arm jurisdiction only to parties who reside in the stateor have a usual place of business in the state. See Beachboardv. Trustees of Columbia Univ., 6 Conn. App. 43, 45,502 A.2d 951 (1986), cert. denied, 199 Conn. 801, 505 A.2d 1249 (1986);see also, Edelman v. Lippincott Co., Civil No. B-88-426(D.Conn. 1989) Carriers Ins., No. 194172. "Corporations canqualify as plaintiffs only by having a usual place of businessin this state, since even a domestic corporation cannot beregarded as `resident' of the state." E. Stephenson,Connecticut Civil Procedure, Section 30 at 118 (2d ed. 1979).SVA acknowledges that it is a foreign corporation with aprincipal place of business in Massachusetts not Connecticut.Complaint at ¶ 3, Answer at ¶ 2. As a plaintiff, SVA would beprecluded from bringing an action against Grodsky underConnecticut's long-arm statute.

However, the inability of a plaintiff to invoke § 33-411 doesnot bar the third-party plaintiff from impleading thethird-party defendant in an action already properly commenced."Section 33-411(c) is directed toward assertions of originaljurisdiction — not extensions of the existing jurisdiction tothird-parties." Dalheim v. Sequemat, Inc., Civil No. N-85-134(PCD) (D.Conn. Nov. 12, 1986), Ruling on Motion to Dismiss at6. Where the court has jurisdiction over the underlying claim,the court does have personal jurisdiction over an impleadedparty. Id. at 5-6.

Here, the third-party plaintiff, a proper defendant in theoriginal action, has impleaded the third-party defendant inaccordance with Fed.R.Civ.P. 14. Since there is no disputethat the court has jurisdiction over the underlying claim,the question then becomes whether the third-party plaintiffmay implead a foreign corporation. Section 52-102a,Conn.Gen.Stat., provides: "[a] defendant in any civil actionmay move the court for permission as a third-party plaintiffto serve [process] . . . upon a person not a party to theaction who is or may be liable to him for all or part ofplaintiff's claim against him."

SVA, as a foreign corporation, has the same rightsavailable to domestic corporations and is not precluded fromresorting to all the powers available to it under the laws ofthis state. See Hartford Accident & Indem. Co. v. Bernblum,122 Conn. 583, 590-91, 191 A. 542 (1937), citing 8 Thompson,Corporations, Section 6585 (3d ed.). There is no allegationthat SVA is in violation of the Connecticut General Statutesand it therefore may implead Grodsky pursuant toConnecticut's impleader rules.

SVA has impleaded Grodsky, a foreign corporation reachableby Connecticut's impleader rules. To construe § 33-411 topreclude the exercise of jurisdiction over third-party claimswould thwart the purpose of the third-party claim rights of §52-102a and Fed.R.Civ.P. 14. Dalheim, Civil No. N-85-134, slipop. at 5-6. "The Connecticut legislature has not clearlyexpressed such an incongruent result." Id. Thus, this court hasjurisdiction over the third-party claims against Grodsky.

Grodsky does not contend nor can it be found that theexercise of jurisdiction over Grodsky violates due process."The constitutional touchstone of the determination whetheran exercise of personal jurisdiction comports with dueprocess remains whether the defendant purposefullyestablished minimum contacts in the forum state." Asahi MetalIndus. Co. v. Superior Court, 480 U.S. 102, 108-109, 107 S.Ct.1026, 1031, 94 L.Ed.2d 92 (1987) (citations omitted). Grodskypurposefully entered into a contract in Connecticut to performservices in Connecticut. In addition, Grodsky is a defendant ina consolidated action, Civil No. H-88-712, arising from thesame set of facts, in which it has impleaded SVA.

Accordingly, Grodsky's motion to dismiss for lack ofpersonal jurisdiction is denied.

2. Failure to State a Claim for Indemnity

The third-party complaint may not be dismissed "unless itappears beyond doubt" that the third-party plaintiff "canprove no set of facts in support of his claim which wouldentitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Thus, "the issue is notwhether a plaintiff will ultimately prevail but whether theclaimant is entitled to offer evidence to support the claims."Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40L.Ed.2d 90 (1974). In resolving a motion to dismiss underFed.R.Civ.P. 12(b)(6), all facts pleaded in the third-partycomplaint must be accepted as true and construed in the lightmost favorable to the non-moving party. Id.

SVA claims it is entitled to indemnification becauseGrodsky "was in control of the selection and/or installationof [the] flexible connectors" and, if they were defective asalleged, it was Grodsky which caused them to be defective."Third-party complaint Count II, ¶ 4. Although it is not clearfrom the record under which theory SVA brings its claim forindemnification, such a claim may be brought under either acontractual or tort theory of liability.

(a) Contract-Based Indemnity

In order to succeed under this theory, SVA must show eitheran express or implied contractual right to indemnification.In re General Dynamics Asbestos Cases, 539 F. Supp. 1106, 1109(D.Conn. 1982). There is no allegation of an express agreementand thus the only issue is whether Grodsky, as a purchaser ofgoods sold by SVA, implicitly agreed to indemnify SVA for theamount of any recovery by plaintiff. If such an impliedcontractual obligation exists, it must arise either byoperation of law or by the affirmative conduct of the parties."Id. at 1109-10.

First, it is well established that no such obligationarises as a matter of law. "A purchaser of a productundertakes no implicit obligation to reimburse themanufacturer or supplier thereof, who itself is found to havebreached to the plaintiff for any losses caused by thepurchaser's negligent use of the manufacturer's or supplier'sproduct." Id. at 1110. See Therrien v. Safeguard Mfg. Co.,180 Conn. 91, 95, 429 A.2d 808 (1980). "In sum, an impliedcontractual obligation does not arise by operation of law, but,as the term `contractual' suggests, only where consent to suchan obligation can fairly and reasonably be inferred fromaffirmative conduct of the purchaser other than the merepurchase of the product." In re General Dynamics, 539 F. Supp.at 1111.

There are no allegations of affirmative conduct by Grodskywhich would give rise to an implied obligation. SVA'sassertion that Grodsky "was in control of theselection of said flexible connectors," does not support aconclusion that there was a duty to indemnify. The casesrelied on by SVA, Roy v. Star Chopper Co., 442 F. Supp. 1010(D.R.I. 1977), aff'd, 584 F.2d 1124 (1st Cir. 1978), cert.denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979), andWeggen v. Elwell-Parker Electric Co., 510 F. Supp. 252 (S.D.Iowa1981), are not analogous because they both involve apurchaser's participation in the actual design of the product— not the mere, albeit voluntary, selection of the product.Grodsky is not alleged to have assumed the exclusiveresponsibility for designing, assembling and assuring thesafety of the product, in which case a warranty of safety maybe implied.

(b) Tort-Based Indemnity

"It is well established under Connecticut law that there isno contribution among joint tortfeasors." Cimino v. Yale Univ.,638 F. Supp. 952, 957 (D.Conn. 1986). However, an exception ismade where one tortfeasor, who is secondarily negligent, seeksindemnification from the primarily negligent tortfeasor. Aparty may seek indemnity on the ground of "primary" negligenceby showing that: (1) the indemnitor was negligent; (2) theindemnitor's negligence (rather than the indemnitee's) was thedirect, immediate cause of the injury; (3) the indemnitor wasin control of the situation to the exclusion of the indemnitee;(4) the indemnitee did not know of the indemnitor's negligence,had no reason to anticipate it, and could reasonably rely onthe indemnitor not to be negligent. Kaplan v. Merberg WreckingCorp., 152 Conn. 405, 416, 207 A.2d 732 (1965).

In order to survive a motion to dismiss, the third-partycomplaint must sufficiently invoke the principles of theKaplan test. Cimino, 638 F. Supp. at 959. While it is true thatthe merits of the claim raise questions of fact to be left tothe trier, Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573,452 A.2d 117 (1982), it is also recognized that the third-partycomplaint cannot survive scrutiny by merely pleading in aconclusory manner the test's elements. Cimino, 638 F. Supp. at959. Here, the third-party complaint alleges all four elementsof the Kaplan test. Third-party complaint, secondcount, ¶¶ 4-5. Grodsky claims that the second and third prongs,even if invoked, cannot as a matter of law be proven by SVA.

To determine the legal sufficiency of the third-partyclaim, the court must evaluate it against the background ofthe complaint. Cimino, 638 F. Supp. at 958. The complaintalleges that SVA is liable to the plaintiff, pursuant toConn.Gen.Stat. § 52-572m, et seq., for supplying defectivelydesigned, manufactured, and improperly prepared, tested, andinspected, flexible connectors. Complaint ¶¶ 10, 14. SVA arguesthat ¶ 14(d) of the complaint alleges that SVA "failed toprovide the proper connector for this installation" and thatsuch allegation focuses on the selection of the product and noton the condition of the product when it allegedly left thehands of SVA. Because any finding of liability against SVA fornegligence in providing a proper connector for the building mayinvolve primary negligence on the part of Grodsky in selectingthe connector, SVA would be entitled to indemnification fromGrodsky. Although it is not clear from the record who selectedthe connector, it is not inconceivable that Grodsky could befound primarily negligent in providing the proper connector.For example, SVA may be able to prove that Grodsky eitherrequested the inappropriate connector or provided SVA witherroneous information which lead to an inappropriate selectionon its part.2 This would entitle SVA to indemnity reliefand SVA should be allowed to offer evidence at trial to supportthe claim.

With the exception of the allegation in ¶ 14(d) of thethird-party complaint, the claims against SVA are all relatedto the status and condition of the flexible connectors while inthe hands of SVA and prior to purchase or any involvement byGrodsky. A finding of liability against SVA based onthese allegations would preclude a finding of furtherindemnity liability on Grodsky's part under theKaplan test. Grodsky's alleged negligent conduct following thepurchase would be secondary to SVA's negligence in supplying adefectively designed, manufactured, preparing, testing, andinspecting the flexible connectors. Except for allegationsrelated to paragraph 14(d) of the complaint, SVA cannot as amatter of law satisfy the Kaplan test and SVA cannot seekindemnification. Thus, Grodsky's motion to dismiss for failureto state a claim for indemnification is denied.

CONCLUSION

Accordingly, Grodsky's motion to dismiss is denied.

SO ORDERED.

1. By third-party complaint, dated August 30, 1989, SVAseeks contribution and indemnification from The Metraflex Co.("Metraflex"), the manufacturer of the flexible connectors,seeking contribution and indemnification.

2. If this basis for liability is presented and tried to ajury, special interrogatories will be given to the jury toascertain the basis of their finding of liability, ifany.

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