BVH Integrated Services Inc. v. Tecton Architects Inc.
To prevail on an indemnification claim, a plaintiff must prove: 1.) the other tortfeasor was negligent; 2.) the other tortfeasor's negligence, as opposed to the plaintiff's negligence, was the direct, immediate cause of the injury; 3.) the other tortfeasor was in control, to the exclusion of the plaintiff; and 4.) the plaintiff did not know about the negligence and had no reason to anticipate the negligence. The plaintiff, BVH Integrated Services, alleged that in June 2003 Curtis Jackson III, a musician known as "50 Cent," hired BVH to prepare a limited condition survey and opinion of probable cost to repair a parcel of property that Jackson was interested in purchasing in Farmington. BVH allegedly hired the defendant, Tecton Architects, to inspect the property and to estimate the price of repairs. Jackson purchased the property and sued BVH, alleging breach of contract, negligence, recklessness and negligent misrepresentation as to the cost of repairs. Jackson and BVH settled the underlying complaint, which was withdrawn. BVH sued Tecton Architects for indemnification and breach of contract, alleging that Tecton underestimated costs of repairs. Tecton moved for summary judgment and argued that BVH cannot prove Tecton was in sole control of the situation, because BVH was responsible to prepare the final estimate. BVH objected it delegated the architectural analysis, which was beyond its expertise, to Tecton and did not provide any additional input. No reasonable juror, wrote the court, could find that Tecton controlled the preparation of the limited condition survey and the opinion of probable cost of repairs, to the exclusion of BVH. Tecton merely prepared the architectural estimate. BVH independently prepared the structural, mechanical and non-architectural estimates. "BVH," wrote the court, "cannot circumvent Connecticut's statutory apportionment scheme simply by claiming that it was a passive tortfeasor." The court granted Tecton's motion for summary judgment on the indemnification count. BVH's breach-of-contract count was filed timely and survived the defendant's motion for summary judgment.