Wilhelm v. Barri, No. 51 28 95 (Apr. 11, 1991)
Opinion of the Court
Dr. Mascaro (hereinafter Mascaro) intervened as a plaintiff March 18, 1990 pursuant to Connecticut General Statutes section
Defendant Barri (hereinafter Barri) filed a counterclaim against Mascaro June 22, 1990. Barri alleges that he and Mascaro entered into a lease agreement February 13, 1986. Barri alleges that this lease is for the property at which plaintiff wife allegedly incurred injuries. Barri alleges that this lease contains a clause captioned "Indemnification of Lessor" which states that lessee (Mascaro) shall indemnify lessor (Barri) "against all claims, liability, loss or damage whatsoever on account of any such loss, injury, death or damage." Barri further alleges that Mascaro was in control of the premises at the time of plaintiff wife's alleged accident. Barri seeks indemnification from Mascaro of any judgment that may be rendered against Barri in favor of plaintiffs and reimbursement from Mascaro for the costs of this action.
Mascaro brought this motion for summary judgment against Barri's counterclaim January 22, 1991. Mascaro argues that there is no genuine issue of material fact as between these two parties and that he is entitled to judgment as a CT Page 3014 matter of law.
As required by Connecticut Practice Book section 380, Mascaro has filed a memorandum in support of his motion and Barri has timely filed a memorandum in opposition.
The pleadings are closed as between the parties to this motion, as required by Connecticut Practice Book section 279 (rev'd to 1978, as updated to October 1, 1990).
A motion for summary judgment will be granted if the pleadings 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. Connecticut Practice Book section 384 (rev'd to 1978, as updated to October 1, 1990). See United Oil v. Urban Redevelopment Commission,
As set out in their memoranda, the parties agree that the lease between them contains an indemnification clause, and also agree as to the contents of that clause.
Barri argues that under this indemnification agreement, Mascaro is liable to indemnify Barri for any losses incurred. Mascaro argues that the indemnification agreement expressly does not apply to injury caused by the negligence of Barri.
The entirety of the provisions reads as follows: INDEMNIFICATION OF LESSOR: Lessor shall not be liable for any loss, injury, death, or damage to persons or property which at any time may be suffered or sustained by Lessee or by any person whosoever may at any time be using or occupying or visiting the demised premises or be in, or, on about the same, whether such loss, injury, death, or damage shall be caused by or in any way result from or arise out of any act, omission, or negligence of Lessee or of any occupant, subtenant, visitor or user of any portion of the premises, or shall result from or be caused by any other matter or thing whether of the same kind as or of a different kind than the CT Page 3015 matters or things above set forth, and Lessee shall indemnify Lessor against all claims, liability, loss, or damage whatsoever on account of any such loss, injury, death or damage. Lessee hereby waives all claims against Lessor for damages to the building and improvements that are now on or hereafter placed or built on the premises and to the property of Lessee in, on, or about the premises, and for injuries to persons or property in or about the premises, from any cause arising at any time. The two preceeding (sic) sentences shall not apply to loss, injury, death, or damage arising by reason of the negligence or misconduct of Lessor, its agents, or employees.
Where the terms of a contract are plain and unambiguous, the contract is conclusive. 17A C.J.S. Contracts section 296(1).
"The unambiguous language of an indemnity clause should be given effect as expressing the parties' intentions." Laudano v. General Motors Corp.,
Barri's negligence is the sole claim asserted by plaintiffs against Barri, any judgment against Barri on the underlying complaint will necessarily be based on a finding that Barri's negligence caused the injuries since "the right of a plaintiff to recover is limited to the allegations of his complaint." Lamb v. Burns,
Barri's opposition to Mascaro's motion for summary judgment consists primarily of the claim that genuine issues of fact exist as to the apportionment of liability between Mascaro and Barri. In particular, Barri notes that there are questions concerning whether Mascaro was in control of the area where plaintiff fell and whether Mascaro had a duty to remove snow and ice from that area. These questions of fact do exist in the underlying action and must be determined by the trier of fact in the course of adjudicating plaintiffs' claim against Barri; but, they are not material to Mascaro's duty to indemnify Barri, pursuant to their lease agreement. CT Page 3016
Pursuant to Connecticut General Statutes section
Mascaro's motion for summary judgment on Barri's counterclaim is granted.
LEUBA, J.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.