Colon et al v. Metro-North Commuter Railroad Company et al

Filing 529

RULING ON CROSS MOTIONS FOR JUDGMENT AS TO THIRD PARTY COMPLAINT. For the reasons stated in the attached ruling, the motion for judgment as to the third-party claim by third-party plaintiffs Metro-North and the MTA (Doc. # 514 ) is DENIED, and the motion for judgment as to the third-party claim by third-party defendant UI (Doc. # 520 ) is GRANTED. It is so ordered. Signed by Judge Jeffrey A. Meyer on 5/22/2018. (Black, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MILTON OMAR COLON and ARLENE
DAVIS,
Plaintiffs,
v.
METRO-NORTH COMMUTER
RAILROAD COMPANY, and
METROPOLITAN TRANSPORTATION
AUTHORITY,
Defendants.
No. 3:13-cv-00325 (JAM)
METRO-NORTH COMMUTER
RAILROAD COMPANY and
METROPOLITAN TRANSPORTATION
AUTHORITY,
Third-Party Plaintiffs,
v.
UNITED ILLUMINATING COMPANY,
Third-Party Defendant.
RULING ON CROSS MOTIONS
FOR JUDGMENT AS TO THIRD PARTY COMPLAINT
This case arises from a lawsuit by plaintiffs Omar Colon and Arlene Davis as a result of
severe electrocution injuries sustained by Colon when he climbed a catenary tower along the
railroad tracks in New Haven, Connecticut. After plaintiffs filed suit against defendants MetroNorth Commuter Railroad Company (“Metro-North”) and the Metropolitan Transportation
Authority (“MTA”), the defendants in turn filed a third-party complaint for indemnification
against the United Illuminating Company (“UI”).

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At issue now is whether UI must indemnify Metro-North and/or the MTA for their costs
in defending against plaintiffs’ lawsuit. In light of the jury’s finding that Colon was not injured
by UI’s wires, I conclude that UI has no duty to indemnify Metro-North or the MTA.
BACKGROUND
The background facts of this case are set forth at greater length in my earlier summary
judgment ruling. See Colon v. Metro-N. Commuter R.R. Co., 242 F. Supp. 3d. 65, 69–71 (D.
Conn. 2017). As relevant now, Colon was electrocuted on March 17, 2011, after he climbed high
up a catenary tower alongside the railroad tracks in New Haven, Connecticut.
At the time of Colon’s injury, the State of Connecticut owned the railroad right-of-way,
railroad tracks, and the catenary towers. Metro-North operated the railroad pursuant to a contract
with the Connecticut Department of Transportation (“CDOT”) and the MTA.
The catenary towers carried one set of electrical wires that was owned by Metro-North
and used to power the trains. In addition, the catenary tower where Colon was injured also
carried a separate set of wires owned by UI. These wires were installed pursuant to a separate
transmission line agreement between UI and CDOT. See Doc. #515-1 (transmission line
agreement).
After Colon climbed high up the tower, he was eventually found dangling upside-down
with his body touching one of Metro-North’s wires. According to Colon, he found himself in this
position because he was somehow stricken or affected by hidden and invisible static electricity
from either or both sets of Metro-North and UI wires, such that he then fell into contact with the
lower set of Metro-North wires.
After a two-week trial in August 2017, the jury determined that plaintiffs had failed to
prove three of the five required elements for their tort claim against Metro-North and the MTA.

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This included a specific finding that Colon’s injuries were not caused by a hidden danger such as
static electricity. See Doc. #494 at 1; Doc. #496 at 8-9. The jury was also posed a special
interrogatory asking specifically whether the UI wires “directly or indirectly caused” Colon’s
injuries, and the jury found that the UI wires did not directly or indirectly cause Colon’s injuries.
Id. at 3.
Despite the jury’s finding that UI’s wires did not cause Colon’s injury, Metro-North and
the MTA seek indemnification from UI for the cost of defending against plaintiffs’ lawsuit. The
indemnification is sought pursuant to Article X of the UI-CDOT transmission line agreement
which provides as follows:
Power Company [UI] agrees to indemnify, protect and save harmless the State or State’s
Designee [Metro-North] from and against all cost or expense resulting from any and all
loss or damage to the property of the State or State’s Designee and from any and all loss
of life or property, or injury or damage to the person or property of any third person, firm
or corporation … and from any and all claims, demands or actions for such loss, injury
or damage directly or indirectly caused by the presence or use or the construction,
installation, maintenance, removal, change or relocation and subsequent removal of the
Transmission System and appurtenances thereto, excepting such loss, damage or injury as
shall be due solely to the negligence of the agents or servants of the State or State’s
designee.
Doc. #515-1 at 22-23 (emphasis added). Having agreed that it is for the Court to decide whether
UI is liable for indemnification in light of the jury’s finding, both parties now move for judgment
as to the third-party complaint. See Docs. #514, #520.
DISCUSSION
Under Connecticut law, “a contract must be construed to effectuate the intent of the
parties, which is determined from the language used interpreted in light of the situation of the
parties and the circumstances connected with the transaction. The intent of the parties is to be
ascertained by a fair and reasonable construction of the written words and the language used
must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly
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applied to the subject matter of the writing.” Murtha v. City of Hartford, 303 Conn. 1, 7 (2011)
(internal citations, quotation marks, and alterations omitted). “Where the language of the writing
is clear and unambiguous, the writing is to be given effect according to its terms. A court will not
torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.”
Id. at 7–8 (internal citations, quotation marks, and alterations omitted).
Metro-North insists that UI’s duty to indemnify has been triggered solely because Colon
made a claim against Metro-North relating to UI’s wires and because the indemnification
provision refers in part to “any and all claims, demands or actions for such loss, injury or damage
directly or indirectly caused by the presence or use” of UI’s transmission wires. Doc. #515 at 23.
In essence, Metro-North argues that the contract creates something akin to a “duty to defend” on
the part of UI.
The duty to defend is a familiar insurance concept in which an insurance company will
typically be contractually obliged to investigate and defend against any covered claims brought
against the insured, regardless whether those claims prove to have any merit. See, e.g., Hartford
Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 463-64 (2005) (discussing whether
allegations fell within ambit of insurer’s duty to defend). The duty to defend is generally
triggered by the allegations of the complaint itself, and the question is simply whether the
allegations would, if true, fall within the scope of the insurance coverage. See ibid. According to
Metro-North, because the indemnification obligation in this case extends to claims, not just
actual loss, this reflects an indemnification duty that is commensurate with a duty to defend.
I don’t agree. As shown by the numerous cases cited by Metro-North, contracts creating a
duty to defend will typically employ direct and explicit language in doing so. See, e.g., id. at 465
(contract providing for “duty to defend a suit seeking damages for bodily injury or property

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damage which may be covered . . .”); see also R.T. Vanderbilt Co. v. Cont’l Cas. Co., 273 Conn.
448, 453 (2005) (contract providing that “the [insurance] company shall have the right and duty
to defend any suit against the insured . . . even if any of the allegations of the suit are groundless,
false or fraudulent”); Wentland v. Am. Equity Ins. Co., 267 Conn. 592, 597, 602 (2004) (explicit
duty to defend provision); Town of Fairfield v. D’Addario, 149 Conn. 358, 360 (1962)
(defendant obliged to “defend any suit brought against” plaintiff); Gemma Power Systems, LLC
v. Smedley Co., 2017 WL 3927642, at *1 (Conn. Super. Ct. 2017) (defendant obliged “to defend,
indemnify and hold harmless”).
Yet another example of this kind of explicit duty-to-defend language can be found
elsewhere in the transmission agreement between UI and CDOT at issue in this case. Article III,
Section (o) requires UI to maintain insurance coverage, listing both CDOT and Metro-North as
additional insureds, and requires that this insurance “shall state that the insurance company or
companies shall agree to investigate and defend the insured against all claims for damages, even
if groundless.” Doc. #515-1 at 14 (emphasis added).
The parties in this case clearly knew how to employ duty-to-defend language to
indemnify against the costs of defending even meritless claims. They did not do so in the
relevant provision of the transmission agreement that defines UI’s duty to indemnify. It may be
reasonably inferred that this choice not to use explicit duty-to-defend language was deliberate,
and that therefore the indemnification provision does not create a duty to defend.
Nor need I interpret the indemnification provision as creating a duty to defend in order to
avoid redundancy. There is an entirely plausible reading of the contract under which the
obligation to defend for any “claim” of loss caused by the UI wires goes beyond the obligation to
indemnify against actual loss, but not so far as a duty to defend. The key is that the “claim” must

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be one for some “loss, injury or damage” that was actually “directly or indirectly caused by” UI
wires. So long as that factual predicate of actual causation is satisfied, a stronger argument exists
that UI would be obligated to indemnify against the costs of defending a claim, even if MetroNorth were not ultimately held liable. Thus, for example, if the jury had found that Colon was
injured by a hidden danger and this injury was caused by UI’s wires, but that Metro-North was
nevertheless not liable for some other reason (such as the failure of plaintiffs to prove prior
constant intrusion), then Metro-North would have had a stronger argument for indemnification
from UI.
This reading of the contract affords meaning to every provision, while also respecting the
parties’ decision not to create an explicit duty to defend on the part of UI. It is a sensible
interpretation in light of the purpose of the indemnification provision, which is to ensure that the
presence of UI’s wires does not impose costs or burdens on Metro-North that it would not
otherwise bear. This purpose requires only that UI indemnify for those costs that are in fact
caused by UI’s transmission wires.
Metro-North points to the distinction between indemnification for loss and
indemnification for liability, suggesting that the latter implies a duty to defend. See Doc. #515 at
6. But the distinction between loss and liability coverage is simply one of timing: a duty to
indemnify against liability is triggered as soon as the underlying event giving rise to liability
occurs, while the duty to indemnify against loss is not triggered until the indemnitee is actually
made to bear the loss—e.g., by a judgment in favor of the injured party. See Amoco Oil Co. v.
Liberty Auto & Electric Co., 262 Conn. 142, 149-51 (2002). This distinction has nothing to do
with whether an indemnity provision extends beyond loss or liability to a duty to defend.
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CONCLUSION
For the foregoing reasons, the motion for judgment as to the third-party claim by thirdparty plaintiffs Metro-North and the MTA (Doc. #514) is DENIED, and the motion for judgment
as to the third-party claim by third-party defendant UI (Doc. #520) is GRANTED.
It is so ordered.
Dated at New Haven this 22nd day of May 2018.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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