Pennsylvania Manufacturers Indemnity Company v. Cintas Fire Protection & Fire Systems of Springfield, CT

Filing 63

ORDER granting 42 Motion to Dismiss. See attached Memorandum of Decision. The Clerk is directed to terminate SimplexGrinnell as a party in this case. Signed by Judge Vanessa L. Bryant on 8/30/12. (Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PENNSYLVANIA MANUFACTURERS
INDEMNITY COMPANY a/s/o NORWICH
HOSPITALITY, LLC,

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Plaintiff,
v.
CINTAS FIRE PROTECTION & FIRE
SYSTEMS OF SPRINGFIELD, CT,
Defendant,
v.
SIMPLEXGRINNELL LP,
Third-Party Defenfendant.

CIVIL ACTION NO.
3:11-cv-650 (VLB)

August 30, 2012

MEMORANDUM OF DECISION GRANTING THIRD-PARTY DEFENDANTS’ MOTION
TO DISMISS [Dkt. #42]
I. Introduction
On December 12, 2009, the Comfort Suites Hotel in Norwich, Connecticut
sustained water damage in connection with a rupture in its fire sprinkler system.
Pennsylvania Manufacturers Indemnity Company (“PMI”), the hotel’s insurer,
claims that it incurred over $150,000 in damages as a result of the leak.
Consequently, PMI now brings suit against the sprinkler system maintenance
company, Cintas Fire Protection & Fire Systems of Springfield (“Cintas”), for
negligence and breach of contract. In turn, Cintas seeks indemnification (Count
One) or apportionment of liability (Count Two) from SimplexGrinnell, the
company responsible for the initial design and installation of the system.
SimplexGrinnell now moves for dismissal, or alternatively, summary judgment, in
regard to Cintas’s claims.
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II. Factual Background
In 1997, SimplexGrinnell installed a fire sprinkler system at the Comfort
Suites Hotel located at 275 Otrobando Road, Norwich Connecticut. [Third Party
Def.’s Motion to Dismiss, Dkt. # 42, p. 1, p.13 n.1 ]. The hotel subsequently
contracted with Cintas to service, repair, and maintain the sprinkler system. [Pl.’s
Complaint, Dkt. #1, at ¶ 5]. In accordance with its maintenance contract, in June
2009, Cintas performed maintenance work on the system. [Id. at 8]. At that time,
Cintas introduced water into the system in order to perform a flow “trip” test. [Id.
at 9]. Plaintiff alleges that Cintas failed to drain the water at the end of the test.
[Id.]. Cintas asserts that any failure of the pipes to drain was caused by
SimplexGrinnell’s installation of “a section of low-lying pipe that did not properly
drain and allowed water to remain in the system.” [Third Party Complaint, Dkt. #
24, ¶ 20]. On December 12, 2009, the water that had collected in the system
froze, causing the pipes to rupture and damage the hotel. [Id. at 10].
PMI, the insurer of the hotel, claims that it incurred a loss of over $150,000
as a result of the water damage. [Dkt. # 24, ¶ 14]. On April 22, 2011, PMI filed a
complaint against Cintas for negligence and breach of contract. [Id.]. On May 9,
2011, a Summons Return Executed form was filed with the court to certify service
of summons to Cintas. [Certificate of Service, Dkt. # 7, p. 6]. The Court entered a
scheduling order, allowing the parties until October 1, 2011, to join additional
parties to the action. [Objection to Third Party Def.’s Motion to Dismiss, Dkt. # 51,
p. 7]. In compliance with the scheduling order, on September 29, 2011, Cintas
served SimplexGrinnell with a summons in connection with Cintas’

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apportionment and indemnification claims. [Summons, Dkt. # 25, p.1].
SimplexGrinnell now seeks dismissal of Cintas’ third party complaint under Fed.
R. Civ. P. 12 (b)(6), or alternatively Fed. R. Civ. P. 56, and Fed. R. Civ. P. 12 (b) (2).
[Dkt. # 42].
III. Standards of Review
A. Motion to Dismiss
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While Rule 8 does not
require detailed factual allegations, “[a] pleading that offers ‘labels and
conclusions’ or ‘formulaic recitation of the elements of a cause of action will not
do.’” Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (internal quotations omitted). “Where a
complaint pleads facts that are ‘merely consistent with’ a Defendant’s liability, it
‘stops short of the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955,
167 L.Ed.2d 929 (2007)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ A claim has facial plausibility when the Plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
Defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of a

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complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to assumption of truth.’” Id. (quoting Iqbal, 129 S. Ct.
at 1949-50). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 129 S. Ct. at 1950). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a Defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949
(internal quotation marks omitted).
B. Summary Judgment
“The standards governing summary judgment are well settled.” Ford v.
Reynolds, 316 F.3d 351, 354, 379 (2d Cir. 2002). Summary judgment “should be
rendered if the pleadings, the discovery and disclosure material on file, and any
affidavits show that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). Summary
judgment is appropriate if, after discovery, the nonmoving party “has failed to
make a sufficient showing on an essential element of[its] case with respect to
which [it] has the burden of proof.” Celotex v. Catrett, 477 U.S. 317, 323 (1986).
“The party seeking summary judgment has the burden to demonstrate that
no genuine issue of material fact exists.” Ford, 316 F.3d 101, 105 (2d Cir. 2002).
“[T]he burden on the moving party may be discharged by ‘showing’- that is
pointing out to the district court- that there is an absence of evidence to support
the nonmoving party’s case.” PepsiCo. Inc. v. Coca-Cola Co., 315 F. 3d 101, 105

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(2d Cir. 2002) (internal citations omitted). “If the party moving for summary
judgment demonstrates the absence of any genuine issue of material fact, the
nonmoving party must, to defeat summary judgment, come forward with evidence
that would be sufficient to support a jury verdict in its favor.” Burt Rigid Box, Inc.
v. Travelers prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
The Court must “construe the evidence in the light most favorable to the
nonmoving party and…draw all favorable inferences in its favor.” Huminski v.
Corsones, 396 F.3d 53, 69-70 (2d Cir. 2004) (internal citations omitted). “[I]f there
is any evidence in the record that could reasonably support a jury’s verdict for
the non-moving party, summary judgment must be denied. Am. Home Assurance
Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir. 2006)
(internal citations omitted).
C. Personal Jurisdiction
A claim is properly dismissed under Fed. R. Civ. P. 12 (b) (2) where a court
lacks personal jurisdiction over the defendant. F.R.C.P. 12 (b) (2). “The breadth
of a federal court's personal jurisdiction is determined by the law of the state in
which the district court is located.” Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir.
2006) (citing Henderson v. INS, 157 F.3d 106, 123 (2d Cir.1998)). “On a Rule
12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the
burden of showing that the court has jurisdiction over the defendant.” Metro. Life
Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566-67 (2d Cir. 1996).

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IV. Discussion
A. Indemnification Claim
1. Timeliness
SimplexGrinnell seeks dismissal, or, alternatively, summary judgment, as
to Cintas’ indemnification claim, asserting that the claim is untimely under
Connecticut law. Under the statute of repose set forth in Conn. Gen. Stat. § 52584, an action to recover damages for negligent or reckless injury to real or
personal property must be brought within three years from the date of the act or
omission complained of. CONN. GEN. STAT. § 52-584. “Unlike a statute of
limitations, a statute of repose is not a limitation of a plaintiff's remedy, but rather
defines the right involved in terms of the time allowed to bring suit.” P. Stolz
Family P'ship L.P. v. Daum, 355 F.3d 92, 102 (2d Cir. 2004).
[S]tatutes of limitations bear on the availability of
remedies and, as such, are subject to equitable
defenses . . ., the various forms of tolling, and the
potential application of the discovery rule. In contrast,
statutes of repose affect the availability of the
underlying right: That right is no longer available on the
expiration of the specified period of time. In theory, at
least, the legislative bar to subsequent action is
absolute, subject to legislatively created exceptions . . .
set forth in the statute of respose.
Id. (quoting Calvin W. Corman, Limitations of Actions, §1.1, at 4-5 (1991). Thus,
“a statute of repose begins to run without interruption once the necessary
triggering event has occurred, even if equitable considerations would warrant
tolling or even if the plaintiff has not yet, or could not yet have, discovered that
[it] has a cause of action.” Id. (citing Jackson Nat. Life Ins. Co. v. Merrill Lynch &
CO., Inc., 32 F.3d 697, 704 (2d Cir. 1994).
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The three year repose provision of Conn. Gen. Stat. § 52-584 “bars the
bringing of suit more than three years after the alleged negligent conduct of a
defendant, regardless of when a plaintiff discovers the proximate cause of his
harm, or any other essential element of a negligence cause of action.” Barrett v.
Montesano, 269 Conn. 787, 793, 849 A.2d 839 (2004) (quoting Catz v. Rubenstein,
201 Conn. 39, 49-50, 513 A.2d 98, 103 (1986)).
However, Conn. Gen. Stat. § 52-598a provides that, “[n]otwithstanding any
provision of this chapter, an action for indemnification may be brought within
three years from the date of the determination of the action against the party
which is seeking indemnification by either judgment or settlement.” Conn. Gen
Stat. § 52-598a (emphasis added). The law is well settled that §52-598a extends
the time period for which a party may bring a claim where the cause of action is
not negligent injury, but rather, third party indemnification. See Dowling v. Finley
Associates, Inc., 248 Conn. 364, 375, 727 A.2d 1245, 1251 (1999). Consequently,
in an action for indemnification, the three-year limitation period set forth in § 52598a will control to the exclusion of the statute of limitations applicable to the
underlying action. Id. at 379, n. 7 (holding that “it is the three year limitation
period set forth in § 52-598a that controls” an indemnification claim, rather than
the statute of limitations for tort actions set forth in Conn. Gen. Stat. § 52-577,
because an indemnification action “is separate and distinct” from the underlying
action).
Failing to acknowledge Conn. Gen. Stat. §52-598a, the provision
specifically addressing actions for indemnification, SimplexGrinnell now argues

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that Cintas’ indemnification claim is barred by the statute of repose for negligent
injury to property set forth in Conn. Gen Stat §52-584. Offering evidence in the
form of witness testimony and supporting documentation, SimplexGrinnell
argues that any alleged negligence in installing the system would have occurred
no later than October 7, 1997, more than three years before PMI’s 2011 action.
Thus, SimplexGrinnell claims that, as a matter of law, it “can have no liability to
Plaintiff based on the statute of repose.” [Dkt. # 52, p. 5].
The Court need not consider the proffered evidence in this case. Here, the
general time limit to pursue damages for negligent injury to property set forth in
Conn. Gen Stat §52-584 is inapplicable, as Conn. Gen. Stat. § 52-598a, providing a
time frame within which to file suit for indemnification, is directly on point. Cintas
filed its third party complaint seeking indemnification from SimplexGrinnell on
September 30, 2011, less than one year after PMI filed the initial complaint in April
of 2011. [Dkt. # 24]. This six month period is well within the timeframe set forth
in § 52-598a. See Amoco Oil Co. v. Liberty Auto & Elec. Co., 262 Conn. 142, 152
(2002) (holding that the statute of limitations for indemnification claims allows for
a party seeking indemnification to bring the action “within three years from the
date an action against it, by a third party, has been determined,” and thus, where
plaintiff failed to allege that it had incurred losses pursuant to either a judgment
or settlement in a third party action, reliance on § 52-598a was improper).
Accordingly, Cintas’ motion for indemnification is, in fact, timely.
2. Failure to State a Claim

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Alternatively, SimplexGrinnell moves for dismissal of Cintas’
indemnification claim on the grounds that Cintas has failed to state a claim upon
which relief can be granted.
“Indemnity involves a claim for reimbursement in full from one on whom a
primary liability is claimed to rest.” Kaplan v. Merberg Wrecking Corp., 152 Conn.
405, 412 (1965). “’Ordinarily there is no right of indemnity or contribution
between joint tort-feasors.’” Crotta v. Home Depot, Inc., 249 Conn. 634, 642, 732
A.2d 767, 772 (1999) (quoting Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 697-98,
535 A.2d 357 (1988)). Nevertheless, the impact of liability may be shifted from
mere passive tortfeasors to active wrongdoers where a defendant can show that:
“(1) the party against whom indemnification is sought was negligent; (2) that
party's active negligence, rather than the defendant's own passive negligence,
was the direct, immediate cause of the accident and injuries; (3) the other party
was in control of the situation to the exclusion of the defendant seeking
reimbursement; and (4) the defendant did not know of the other party's
negligence, had no reason to anticipate it, and reasonably could rely on the other
party not to be negligent.” Smith v. City of New Haven, 258 Conn. 56, 66, 779 A.2d
104, 110 (2001).
In this case, Cintas’ claim against SimplexGrinnell arose after PMI filed suit
against Cintas for negligent performance of a flow “trip” test on the sprinkler
system of its insured. [Dkt. # 1]. According to the Plaintiff’s initial complaint,
after performing the test pursuant to its sprinkler maintenance contract with
Comfort Suites Hotel, “Cintas failed to drain the water,” causing extensive

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damage to hotel property when the pipe later froze and burst. [Id. at ¶¶ 9-11].
Cintas now seeks indemnity from SimplexGrinnell, the installer of the system, on
the grounds that the third party improperly and negligently installed “a section of
low lying pipe that could not properly drain,” causing the system’s failure and the
Plaintiff’s damages. [Dkt. # 24, ¶ 20].
In its motion to dismiss, SimplexGrinnell argues that Cintas’ third party
indemnification claim must fail as a matter of law because it (1) does not relate to
the same transaction as the underlying claim and (2) fails to properly allege that
SimplexGrinnell was in exclusive control of the situation. [Dkt. # 42].
SimplexGrinnell’s first argument is unavailing because Cintas’ third party claim
may properly be described as relating to the same transaction as the Plaintiff’s
original complaint. Indeed, both claims have been filed in relation to the failure of
water to drain from a sprinkler pipe, causing it to burst. In light of the indisputable
parity of these claims, and in the absence of any legal authority offered by
SimplexGrinnell to the contrary, the Court finds this argument to be without merit.
Therefore, SimplexGrinnell’s motion to dismiss the indemnification claim
necessarily rests on its contention that Cintas has failed to properly allege that
SimplexGrinnell had exclusive control over the condition giving rise to the pipe
rupturing and causing damage.
While the question of exclusive control is ordinarily a question of fact to be
determined by a jury, Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452
A.2d 117 (1982), some circumstances may nonetheless “give rise to the question
of whether, in light of the facts alleged in the third party complaint, any

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reasonable juror could find that the third party defendants had exclusive control
of the situation,” transforming the matter into a question of law. See Skuzinski v.
Bouchard Fuels, Inc., 240 Conn. 694, 705, 694 A.2d 788 (1997) (striking a thirdparty complaint for indemnification where the allegations, even if proven, could
not result in a jury finding that the third-party defendants were in exclusive
control over the situation). SimplexGrinnell argues that this is such a case,
asserting that Cintas’ claim must be dismissed as a matter of law.
SimplexGrinnell contends that “the situation’ or ‘dangerous condition
giving rise to the accident’ over which exclusive control is alleged must be
identified with reference to the claims of the [original] plaintiff.” Wohlfert v. Spec
Personnel, No. CV085014761S, 2011 WL 1992194, at *3 (Conn. Super. May 3,
2011); see also Connecticut Gen. Life Ins. Co. v. SVA, Inc., 743 F. Supp. 107, 111
(D. Conn. 1990) (“To determine the legal sufficiency of the third-party claim, the
court must evaluate it against the background of the complaint.”). Indeed, it is
the grounds alleged in the original complaint that will be the basis for holding
Cintas liable to the Plaintiff in the first instance. See Cimino v. Yale University, et
al., 638 F.Sup. 952, 958 (D. Conn.1986) (“The cross-claim must be construed
against the background of the complaint, for it is only if the plaintiffs prevail . . .
that [the defendant] would have any basis for seeking indemnity.”).
SimplexGrinnell notes that “Plaintiff’s complaint clearly identifies the
dangerous condition giving rise to the accident to be the negligent manner in
which the sprinkler line was drained after water was introduced into the system.”
[Dkt. # 52, p. 4]. On the basis of this construction of the complaint,

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SimplexGrinnell asserts that it cannot be held liable to indemnify Cintas for the
negligent performance of a service over which it had no control. [Id.]. Plaintiff’s
complaint provides that:
8. Sometime in June 2009, pursuant to a maintenance
contract, Cintas performed service and maintenance
work on the system at the subject property.
9. At the time, Cintas performed a flow “trip” test of the
system during which water was introduced into the
system, however, Cintas failed to drain the water at the
end of the test.
10. On December 12, 2009, the water that had collected
in the piping system froze and caused the pipe to break
open, and causing the water to leak through the roof
into the ballroom at the subject property.
[Dkt. #1, Compl., ¶¶8-10]. Relying on this language in the Plaintiff’s complaint, it is
apparent that if the Plaintiff prevails in establishing Cintas’ negligence,
SimplexGrinnell necessarily could not have had exclusive control over the
dangerous situation giving rise to the accident. See Cimino, 638 F. Supp. at 959
(dismissing an indemnity claim where a finding of the indemnitee’s liablity for the
underlying claim “could not be reconciled with a claim that [indemnitor], to the
exclusion of [indemnitee], was in control of the situation”).
Moreover, the parties do not dispute the fact that SimplexGrinnell had no
contact with the sprinkler system since its installation, which occurred nine years
prior to the pipes bursting. Thus, even if the dangerous condition arose from a
negligent installation of the pipes performed by SimplexGrinnell, SimplexGrinnell
indisputably did not have exclusive control over the sprinkler system as Cintas
had been servicing the sprinkler system under its maintenance contract with PMI
for nearly a decade before performing the “trip” test in question. See Kaplan, 152

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Conn. at 418 (holding that the indemnitee must show that the indemnitor “was in
control of the situation at the time of the accident to the exclusion of the
plaintiffs”).
Thus, Cintas’ motion for indemnification is deficient as a matter of law.
Cintas has not and cannot plausibly allege exclusive control in this case in light
of the factual allegations set forth in the Plaintiff’s complaint. Indeed, while
Cintas claims that SimplexGrinnell had exclusive control over the installation of
the sprinkler system, the Plaintiff’s complaint plainly alleges that Cintas
performed a “trip” test pursuant to its maintenance contract and negligently left
water in the pipes, causing the pipes to ultimately burst. Thus Cintas’ cannot, as
a matter of law, establish that SimplexGrinnell had exclusive control of the
dangerous situation that occurred after Cintas, pursuant to its maintenance
contract with PMI, introduced water in the system and allegedly failed to drain it.
Therefore, because Cintas has failed to allege and cannot allege an essential
element of an indemnification claim, SimplexGrinnell’s motion to dismiss the
indemnification claim is granted, and Cintas’ claim for indemnification is
dismissed.
B. Apportionment Claim
As an alternative to complete indemnification, Cintas seeks to have any
liability it incurs apportioned between itself and SimplexGrinnell under
Connecticut General Statutes §§ 52-102b and 52-572h. However, Cintas’
apportionment claim is untimely.

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Conn. Gen. Stat. § 52-102b provides in relevant part that “any complaint
upon a person not a party to the action who is or may be liable … for a
proportionate share of the plaintiff's damages… shall be served within one
hundred twenty days of the return date specified in the plaintiff's original
complaint.” Conn. Gen. Stat. § 52-102b (a) (emphasis added). Thus, under § 52102b, an apportionment claim brought pursuant to section 52-572h must be
brought within 120 days of the Plaintiff’s original complaint. See Lostritto v. Cmty.
Action Agency of New Haven, Inc., 269 Conn. 10, 19-20 (2004) (holding that § 52102b is mandatory, not merely directory). Because § 52-102b implicates personal
jurisdiction, a claim that does not comply with the statute may be properly
dismissed under Fed. R. Civ. P. 12 (b) (2). See id. at 33 (holding that Statutes §
52-102b implicates personal jurisdiction, rather than subject matter jurisdiction).
In this case, the Plaintiff failed to file its claim within the 120 day statutory
period set forth in Conn. Gen. Stat. §52-102b(a). This Court has previously
determined that, for purposes of § 52-102b, the analogous federal procedural
equivalent to the state court’s “return date” is the date the summons for the
complaint is returned to the district court. Abbate v. Northland AEG, LLC, 788 F.
Supp. 2d 50, 54 (D. Conn. 2011). Here, on May 9, 2011, the Plaintiff certified that
the summons was returned executed by PMI on April 29, 2011. [Dkt. # 7, p. 6].
Nevertheless, Cintas’s apportionment claim was not served on SimplexGrinnell
until September 30, 2011, more than 120 days after Cintas’ summons was
returned to the district court. In cases of conflict between the statue and
judicially imposed deadlines, the statutory rule will prevail. See Lostritto at 35

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(“[T]he trial court lack[s] the authority to extend the time for commencing an
apportionment action.”). Thus, while the Plaintiff complied with the court’s
scheduling order, its apportionment claim was untimely because it fell outside of
mandatory period required under Conn. Gen. Stat. § 52-102b.
Therefore, where Cintas’ claim of apportionment is untimely,
SimplexGrinnell’s motion to dismiss Cintas’ claim for apportionment of liability is
granted.
V. Conclusion
For the foregoing reasons, SimplexGrinnell’s motion to dismiss is hereby
granted and Cintas’ third party claim against SimplexGrinnell is dismissed in its
entirety. The Clerk is directed to terminate SimplexGrinnell as a party in this case.
IT IS SO ORDERED.
_______/s/____________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: August 30, 2012

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