Mowrey v. Windham et al

Filing 47

ORDER: For the reasons set forth in the attached ruling, Cross-Claim Plaintiffs' Motion for Summary Judgment 39 is GRANTED, and Cross-Claim Defendants' Motion for Summary Judgment 38 is DENIED. The Clerk is directed to close this case. Signed by Judge Janet Bond Arterton on 8/7/20. (Gutierrez, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID MOWREY, ADMINISTRATOR OF THE
ESTATE OF MATTHEW W. MOWREY,
Civil No. 3:18-cv-584 (JBA)
Plaintijj,
V.

TOWN OF WINDHAM, ET AL.,
Defendants.

August 7, 2020

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

This indemnification cross-claim arises from a settlement agreement resolving the Estate
of Matthew Mowrey's wrongful death claims against two sets of Co-Defendants, the Town of
Windham and the Willimantic Switchboard Fire Chiefs Association.
Cross-Claim Plaintiffs, the Town of Windham and its affiliated police department and
officers (collectively, the "Town"), now seek to recover its settlement payment and related
attorneys' fees from the Cross-Claim Defendants, the Willimantic Switchboard Fire Chiefs
Association and its dispatchers (collectively, the "Association"), pursuant to a contractual
agreement between these parties. 1 The cross-claim litigants each have moved for summary
judgment, with the Town contending that the contract's indemnification clause covers the Mowrey
Estate's claims, and the Association asserting the opposite.

Specifically, this indemnification cross-claim is brought by the Town of Windham, the
Willimantic Police Department, and officers Robert Rosado, Robert Buckner, Elvin Salas, Joshua
Clark, James Salvatore and Matthew Edwards. The Willimantic Switchboard Fire Chiefs
Association and dispatchers Evan Souza and Michael Rohan are named as Cross-Claim
Defendants.
1

For the reasons that follow, the Town of Windham's Motion for Summary Judgment,
([Doc.# 39]), is granted, and the Association's companion Motion, ([Doc.# 38]), is denied.
I. Background

A. The Parties

The Town of Windham encompasses within its geographical limits the former city and
borough of Willimantic, Conn. (Town's Cross-cl. Against Ass'n [Doc.# 24]

~ 1.)

The Willimantic

Police Department is located in the Town of Windham Public Safety Complex at 22 Meadow
Street, Willimantic, Conn. (Joint Stip. of Facts [Doc. # 38-6]

'° 5.)

The Willimantic Switchboard Fire Chiefs Association is a provider of 911 emergency
dispatch services for the Town, which includes the Willimantic Police Department. (Id.

~

2.) The

Association was provided a room at the Public Safety Complex to conduct dispatch and closedcircuit TV monitoring services pursuant to the Agreement. (Id.~ 6.)
B. The Agreement

On or about May 15, 2015, the Town entered into an agreement for dispatch services with
the Association. (See Ex. A (Agreement) to Joint Stip. [Doc.# 38-6] .) The Agreement provides that
the Association would "monitor the closed-circuit TV covering the entire public safety building,
including monitoring prisoners in jail cells and holding area[s]" at all times. (Agreement§ 3f.) The
indemnification clause in the Agreement provides:
The Association agrees to indemnify, defend and hold the Town harmless against
all claims, demands, suits, liabilities, losses, damages or injuries which may be made
or suffered by any person or entity and that arise out of the Association's
performance of this Agreement.
(Id. § 12.)

2

C. The Town's Arrest, Booking, and Jailing of Mr. Mowrey

On August 24, 2016, the Willimantic Police Department received a complaint of a domestic
dispute and officers were dispatched to the apartment of Matthew Mowrey and Lynn Provencher.
(Am. Compl. [Doc.# 15]

~

2.) When the officers arrived, Mr. Mowrey "appeared to be under the

influence of drugs or alcohol." (Ass'n's L.R. Stmt. [Doc.# 38-2]

~

5.) The officers then placed Mr.

Mowrey under arrest, took him into custody, and then transported him to Police Department
Headquarters at the Public Safety Complex. (Joint Stip.

~~

11, 12.) 2

At approximately 11:30 p.m., Cpl. Clark, who had four-to-six months of training in
assessing risk of suicide in prisoners, performed the booking and processing of Mr. Mowrey.
(Ass'n's L.R. Stmt ~~ 8, 10.)
At 12:15 a.m., after placing Mr. Mowrey in a Willimantic Police Department jail cell, Cpl.
Clark filled out the prisoner behavior report on Mr. Mowrey. (Id.

~~

11, 12.) In the section on

suicide risk factors, Cpl. Clark responded in the affirmative to only one question, marking that Mr.
Mowrey "appeared to be under the influence of alcohol and/or drugs." (Id.) He selected "no" to
questions such as, "Has a third party with knowledge of the prisoner informed you ... that the
prisoner is potentially suicidal ... ?" and "Has the prisoner made any comments ... or engaged in
any behavior that would be cause for concern?" (Ex. A (Prisoner Behavior Report) to Ass'n's L.R.
Stmt. [Doc.# 38-3] at 1.)

Ms. Provencher has testified that during this arrest, she told arresting officer Cpl. Joshua
Clark that Mr. Mowrey had asked for a rope earlier in the evening and that the only thought that
came to her mind was that Mr. Mowrey wanted to commit suicide. (Ass'n's L.R. Stmt ~ 3.) Cpl.
Clark, however, denied in his deposition that Ms. Provencher mentioned to him that Mr. Mowrey
had been asking for a rope. (Id. ~ 4.)
2

3

D. The Association's Video Monitoring of Mr. Mowrey's Jail Cell

Two dispatchers for the Association, Evan Souza and Michael Rohan, were on duty during
the duration of Mr. Mowrey's detention in the Willimantic Police Department jail cell. (Joint Stip.
'"7.) Mr. Souza was performing dispatch services for the police, and Mr. Rohan was performing
dispatch for fire services. (Id.) Each was provided with a large flat screen monitor, and when a
prisoner was placed into a jail cell, the monitors would display the video feed of the prisoner's cell.
(Id.'" 10.)
Mr. Souza and Mr. Rohan understood that if dispatchers were told that a detainee was
suicidal, then the detainee was to be "big screened" by the dispatchers. (Ass'n's L.R. Stmt. '" 14.)
The term "big screened" means that the display of the jail cell was maximized, allowing the
dispatcher to see most of the cell. (Id.'"'" 16, 17.)
Mr. Souza does not remember "big screening" any detainees on the night of August 24,
2016. (Id.'" 19.) 3 Mr. Souza has also admitted that there "were times in the evening when Mowrey
was detained that Souza had the sound off because, even on a low volume, there was a humming
which interfered with hearing the radios and the 911 calls when a prisoner was being disruptive."
(Id.'" 21.) He had been aware of this sound problem with the equipment prior to August 24, 2016,

but never complained about it. (Souza Dep. [Doc. # 46] at 42.) In his deposition, Mr. Souza also
recalled that "[t]here was a time that evening when he heard Mowrey but could not understand

In his deposition, Mr. Souza testified that he believed that police officers were required to
perform checks every thirty minutes for prisoners in the cellblock, as provided in Windham Police
Procedure 2017.15. (Ass'n's L.R. Stmt. '"30.) However, Willimantic Police Chief Robert Rosado
testified that the provision was no longer in force or effect on August 24, 2016, having been
superseded by the establishment of monitoring prisoners' jail cells by dispatchers employed by the
Association. (See Ex. A (Rosado Dep.) to Town's L.R. Stmt. [Doc.# 42-1] at 25-28.).
3

4

'°

what he was yelling because the echo distorted the sound." (Ass'n's L.R. Stmt. 24.) However, Mr.
Souza did "not remember hearing Mowrey say anything about having a medical problem or being
suicidal and concluded that he must have had the sound turned off." (Id.'° 23.)
At approximately 3:00 a.m. on August 25, 2016, Mr. Mowrey was discovered dead in his
jail cell, hanging by his socks. (Id.

'° 14.)

E. Procedural History

On November 29, 2017, Mr. Mowrey's Estate initiated an action in Connecticut Superior
Court, asserting negligence and recklessness claims against the Town of Windham, the
Willimantic Police Department, the Association, and the individual officers and dispatchers on
duty at the time of Mr. Mowrey's death. (Not. of Removal [Doc.# l].) On April 6, 2018, this action
was removed to the United States District Court for the District of Connecticut on the basis of a
federal claim brought under 28 U.S.C. § 1983. (Id.)
On August 22, 2018, the Town filed a cross-claim against the Association, seeking complete
contractual indemnification for the compensatory damages, attorneys' fees, and litigation costs
incurred in the resolution of the Mowrey Estate's claims against them. (See Town's Cross-cl.
Against Ass'n.) The Mowrey Estate then entered into settlement negotiations with the Town and
the Association, with the Town offering to pay $750,000 in compensatory damages and the
Association offering to pay $600,000. (Joint Stip.
collective offer of $1,350,000, (id.

'°'° 17-19.) The Mowrey Estate accepted the

'° 20), and the Court entered an order of dismissal on report of

settlement as to the Mowrey Estate's claims on October 18, 2019. ([Doc.# 32].)

'°

The case remains active as to the Town's indemnification cross-claim. (Joint Stip. 21.) On
April 13, 2020, the Association moved for summary judgment on the Town's cross-claim,
contending that indemnification of the Town is not required as a matter oflaw. ([Doc.# 38].) The
5

Town cross-moved for summary judgment on April 14, 2020, asserting that indemnification is
required here and that it is entitled to recovery of its $750,000 settlement payment and related
attorneys' fees. ( [Doc.

#

39]. )4

For purposes of these cross-motions for summary judgment, the cross-claim litigants have
stipulated that "a jury reasonably could have found that the Town of Windham Defendants were
negligent during the arrest, booking process and jailing of Matthew Mowrey, and that said
negligence was a substantial factor resulting in his death." (Joint Stip.

~

23.) Likewise, the cross-

claim litigants have also stipulated that "a jury reasonably could have found that the Association
was negligent in monitoring the video feed from the closed circuit TV camera located in Matthew
Mowrey's jail cell, and that said negligence was a substantial factor resulting in his death." (Id.

~

24.)
II. Discussion
A. Legal Standard

Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242,248 (1986). When there are cross-motions for summary judgment, courts must evaluate
each party's motion separately, drawing all reasonable inferences against the party whose motion
is under consideration. See Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993);
Aruba Hotel Enterprises N. V. v. Belfanti, 611 F. Supp. 2d 203,208 (D. Conn. 2009).

The Town's legal fees were paid in equal proportion by the Town's insurers and the
Association over the course of the Mowrey Estate's litigation. (Joint Stip. ~ 22.)
4

6

B. Indemnification Claim

The Town and the Association disagree as to whether the indemnification clause
encompasses the Town's negligence in this matter. The Agreement's indemnification clause
provides:
The Association agrees to indemnify, defend and hold the Town harmless against
all claims, demands, suits, liabilities, losses, damages or injuries which may be made
or suffered by any person or entity and that arise out of the Association's
performance of this Agreement.
(Id.

§

12.)
Under Connecticut law, "contractual indemnification claims that are based on written

agreements are construed in accordance with the principles of contract law." Szymanska v. Univ.
of CT Health Ctr., No. HHDCV146048550S, 2017 WL 4080438, at *4 (Conn. Super. Ct. July 27,

2017) (internal quotation marks omitted). Accordingly, indemnity agreements "will be construed
to cover such losses which appear to have been intended by the parties." Leonard Concrete Pipe Co.
v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 599 (1979). The intent of the parties should be

ascertained according to the written words' "common, natural, and ordinary meaning and usage
where it can be sensibly applied to the subject matter of the contract." Poole v. City of Waterbury,
266 Conn. 68, 88 (2003).
Connecticut courts have "recognized the enforceability of exculpatory provisions releasing
a defendant from liability for its own negligence" where the parties to the agreement are each
sophisticated parties in a business relationship. Dow- Westbrook, Inc. v. Candlewood Equine
Practice, LLC, 119 Conn. App. 703, 711-18 (2010) (discussing indemnification clause agreed upon

by two commercial entities). When considering indemnification clauses similar to the one
presented in this case, Connecticut courts have explained that they may not read exceptions into
7

the term "all," and that indemnification clauses that use such broad language may cover the
negligence of other parties. See Laudano v. Gen. Motors Corp., 34 Conn. Supp. 684,688 (Super Ct.,
App. Session 1977) (holding that "all" "includes a promise to indemnify even the negligent
indemnitee"); see also Cirrito v. Turner Const. Co., 189 Conn. 701, 709 (1983) (holding that "all" is
as broad a term there is and has no exceptions); Burkle v. Car & Truck Leasing Co., 1 Conn.
App. 54, 57-58 (1983) (holding that "any and all" includes a promise to indemnify a negligent
indemnitee); Szymanska, 2017 WL 4080438, at *4-5 (same).
Relying on Laudano and its progeny, the Town contends that the Mowrey Estate's claims
against it necessarily arose out of the Association's performance of the Agreement because the
Association's stipulated negligence substantially contributed to Mr. Mowrey's death. (Town's
Mem. Supp. Summ.

J. [Doc. # 39-1] at 16.) The Town asserts that "aris[ing] out of" is a broad

condition, as an injury is said to arise out of an occurrence so long as it was "connected with, had
its origins in, grew out of, flowed from, or was incident to" that occurrence or otherwise was a
"substantial factor" leading to the occurrence. (Town's Mem. at 16 (quoting Royal Indem. Co. v.

Terra Firma, Inc., 50 Conn. Supp. 563, 574 (Super. Ct. 2006), ajfd, 287 Conn. 183 (2008) ).) The
Town further asserts that the Mowrey Estate's wrongful death claim arose out of the Association's
performance of the Agreement because Mr. Mowrey took his life while the Association was under
the contractual obligation to monitor "the closed circuit TV covering the entire public safety
building, including monitoring prisoners in jail cells and holding area," (Town's Opp. to Ass'n's
Mot. Summ. J. [Doc# 41) at 5 (citing Agreement§ 3f)), and, as stipulated, a reasonable jury could
find that the Association was negligent in the performance of this monitoring and that this
negligence was a substantial factor resulting in his death, (Town Mem. at 7; see Joint Stip. ~ 24).

8

The Association takes the opposite view and argues that because the Town's liability to the
Mowrey Estate did not arise out of its performance of the Agreement, indemnification is not
required. (Ass'n's Mem. Supp. Mot. for Summ. J. [Doc. # 38-1] at 7.) The Association argues that
the Town "stipulated that a jury could find that [its own] actions in arresting and booking Mowrey
were negligent and a proximate cause of his death," (Ass'n's Mem. at 7; see Joint Stip.

'° 23), and

that the "overarching theory of liability against the [Town] concerned the procedures and actions
involved in the arrest, booking, and processing of Mowrey, not the monitoring of Mowrey after he
had been jailed," (Ass'n's Opp. to Town's Mot. Summ. J. [Doc

#

40] at 2). The Association,

therefore, contends that the Town is liable as a result of its own negligence in failing to identify
and alert the dispatchers of Mr. Mowrey's suicide risk, which "chronologically preceded" the
Association's performance of the Agreement. (See Ass'n's Mem. at 17-18.) The Association thus
argues that any negligence that occurred during this jailing did not arise out of the Association's
performance of the Agreement and consequently falls outside of the scope of the indemnification
clause. (See id.)
The Court agrees with the Town that the Mowrey Estate's suit arose out of the Association's
performance of the Agreement and thus the indemnification clause is triggered. As the Town
notes, Connecticut courts have interpreted the language "arising out of' in a broad manner when
presented with substantially similar indemnification clauses, requiring only that there be some
causal relationship between the Association's performance of the Agreement and the Mowrey
Estate's claims. See Henderson v. Bismark Constr. Co., Inc., No. FBTCV176062488S, 2019 WL
3546481, at *2-3 (Conn. Super. Ct. July 10, 2019) (discussing how "arising out of' has been
interpreted broadly by Connecticut courts). For example, in Laudano, the court required
indemnification where the plaintiff had fallen off a ladder due to the indemnitee's negligence. See
9

34 Conn. Supp. at 685-86. Confronted with an indemnification clause that required the claim or
injury to "grow out of the performance of the contract by [the indemnitor]," the Laudano court
held that the plaintiffs injury grew out of the indemnitor' s performance because the plaintiff "was
injured while he was engaged in duties in connection with work to be performed under the
contract." Id. at 689. Similarly, in Cirrito, the court held that the plaintiffs injury "'ar[ o ]s[ e] out of
or occur[ed] in connection with the execution of the Work,"' 189 Conn. at 704, because there was
a "sufficient connection between his injuries and his work," as the work to be performed under the
contract was the plastering of a building, and the plaintiff was injured when he fell down the stairs
while leaving the construction site, id. at 709.
Here, Mr. Mowrey's injuries arose out of the performance of the Agreement because Mr.
Mowrey took his life while the Association was under the contractual obligation to monitor "the
closed circuit TV covering the entire public safety building, including monitoring prisoners in jail
cells and holding area." (Town's Opp. at 5; see Agreement§ 3(f).) As the parties stipulated, a jury
reasonably could find that the Association's negligence was a "substantial factor" resulting in Mr.
Mowrey's death. (Joint Stip.

~

24.) And indeed, the Association's dispatcher, Mr. Souza, testified

that he heard Mr. Mowrey yelling that evening, that he would turn down the volume "when a
prisoner was being disruptive," and that there were other "times in the evening when Mowrey was
detained that [he] had the sound off." (Ass'n's L.R. Stmt.

~~

21, 24.) 5 As the Association's

negligence was a "substantial factor" resulting in Mr. Mowrey's death, there is necessarily a

To the extent that the Association suggests that indemnification is improper because its
own negligence flowed from the Town's failure to notify dispatch that Mr. Mowrey was at risk of
suicide, the Court notes that the disregard of Mr. Mowrey's yelling and the silencing of the audio
feed appear to provide an independent basis for the Association's negligence.
5

10

"sufficient connection" between the Association's performance of the Agreement and Mr.
Mowrey's injuries, which satisfies the indemnification clause's requirement that the claims for
which the Town seeks indemnification arise out of the Association's performance. Cirrito, 189
Conn. at 709. 6
As the contract is drafted, it is of no consequence that the Town's own negligence may too
have been a substantial factor contributing to Mr. Mowrey's death. As explained in Patt v.

Metropolitan District Commission, No. X04CV044003558S, 2006 WL 3878083, at *3 (Conn. Super.
Ct. Dec. 20, 2006), where "a set of injuries and damages may be caused by more than one
substantial factor," indemnification is proper so long as the claims arose out of injuries caused at

least in part by the indemnitor's performance of the contract. By way of illustration, that court
queried:

The Association's attempts to distinguish Laudano are unavailing. The Association
contends that indemnification was ordered in Laudano because the plaintiff was injured in
connection with the indemnitor's work, so indemnification would have been ordered regardless of
whether the indemnitee was negligent. (Ass'n's Reply to Town's Opp. [Doc. # 44] at 2.) The
Association argues that Laudano stands in contrast to the present case, as the Town's stipulated
negligence did not occur in connection with the performance of the Agreement. (Id.) However,
Laudano has nothing to say on whether indemnitee's negligence must grow out of the indemnitor's
performance of the contract for the purposes of indemnification. See 34 Conn. Supp. at 689.
Laudano stands only for the proposition that a plaintiffs injuries had to grow out of the
indemnitor's performance of the contract to trigger indemnification clause. See id.
6

The Association's efforts to distinguish Cirrito fare no better. The Association maintains
that Cirrito is inapposite insofar as the indemnitee in that case "had engaged in an activity (the
construction and maintenance of the ladder) which was incidental to the work which the
indemnitor had contracted to perform." (Ass'n's Opp. at 9.) But contrary to the Association's
suggestion that indemnification was ordered because the indemnitee's own negligence occurred in
connection with the indemnitor's performance of the contract, Cirrito is correctly read as holding
that the only requirement to trigger indemnification was that "a causal connection" existed
between the work contracted to perform and the injury sustained. 189 Conn. at 708.
11

[S]uppose that A is a substantial factor in producing P's injuries. B has agreed to
indemnify A for damages A has been found liable for, if P's injuries have been
caused, in whole or in part, by B's negligence. If negligence of both A and Bare
substantial factors in producing P's injuries, then B indemnifies A.

Id. at *3. 7 Thus, even if the Mowrey Estate's claims also arose from the Town's own negligence, the
indemnification clause here has still been triggered by the Association's own actions. Although the
Association may now believe this to be an unfair result, it was free to reject such a broad
indemnification clause or draft the agreement in a manner that would have shielded it from
liability in circumstances involving joint tortfeasors. The Court cannot now read an exclusion into
the contract where the parties themselves did not draft one. See Red Ball Interior Demolition Corp.

v. Palmadessa, 173 F.3d 481,484 (2d Cir. 1999) ("If a contract is clear, courts must take care not to
alter or go beyond the express terms of the agreement, or to impose obligations on the parties that
are not mandated by the unambiguous terms of the agreement itself.").
In sum, the Agreement's indemnification clause is triggered by the Association's negligent
performance in failing to monitor Mr. Mowrey as he took steps toward committing suicide, which,
as stipulated, could be reasonably found to be a "substantial factor" contributing to Mr. Mowrey's
death. Accordingly, the Association must hold the Town harmless as to the Mowrey Estate's
claims, despite the Town's own stipulated negligence.

At oral argument, the Association suggested that the logic of Patt was inapplicable to this
case, as the indemnification clause there contained language that required the claim to arise out of
injuries caused "in whole or in part" by the conduct of the indemnitor. See Patt, 2006 WL 3878083,
at *3. However, the Court does not find such a difference to be meaningful here, given that the
term "all," as used in the Agreement, does not meaningfully differ from "in whole or in part," as
used in Patt.
7

12

C. Indemnification Award

Having concluded that the indemnification clause applies to the Town's actions in this case,
the Court still must determine whether the amount that the Town "paid in settlement was
reasonable." Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 160 (1996).
Here, the Town paid the Mowrey Estate an amount of $750,000 to settle the claims against
it. (Joint Stip. " 19.) The Association, which settled with the Mowrey Estate in the amount of
$600,000, does not dispute the reasonableness of the Town's $750,000 settlement, and this amount
is in line with damages awarded in similar wrongful death actions. See, e.g., Ashmore v. Hartford

Hosp., 331 Conn. 777, 798 (2019) (holding a $1,200,000 award for a wrongful death action was
reasonable).
Accordingly, the Association is required to indemnify the Town the amount paid in
settlement, in addition to the fees incurred in the defense of the Mowrey Estate's claims which have
not already been paid by the Association's insurer.
III. Conclusion

Accordingly, Cross-Claim Plaintiffs' Motion for Summary Judgment [Doc. # 39] is
GRANTED, and Cross-Claim Defendants' Motion for Summary Judgment [Doc.

#

38] is

DENIED. The Clerk is directed to close this case.

IT IS SO ORDERED.
s
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 7th day of August 2020.

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