Superior Court of Connecticut, Judicial District of Hartford At Hartford
January 10, 2022, Decided; January 10, 2022, Filed
HHDCV206131217S

Reporter
2022 Conn. Super. LEXIS 54 *; 2022 WL 294094
Peening Technologies Equipment, LLC v. Northeast Riggers, Inc. et al.
Notice: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
Core Terms

third-party, machine, motion to strike, Peening, indemnification, allegations, transport, quotation, marks, preempted, damaged
Judges: [*1] Stuart D. Rosen, J.
Opinion by: Stuart D. Rosen
Opinion

MEMORANDUM OF DECISION RE THIRD-PARTY DEFENDANT TOTAL QUALITY LOGISTICS, LLC’S MOTION TO STRIKE AMENDED THIRD-PARTY COMPLAINT (#140)
INTRODUCTION
The plaintiff, Peening Technologies Equipment, LLC (Peening), brought an action against Northeast Riggers, Inc. (NER) arising out of the late delivery of a machine that was damaged in transit. NER denied responsibility and impleaded third-party defendants Immediaship, LLC (Immediaship), Total Quality Logistics, LLC (TQL), and Old Republic Insurance Company (Old Republic), asserting that the third-party defendants were responsible for the late delivery and any damage to the machine. NER’s amended third-party complaint seeks common-law indemnification from TQL and alleges it was an intended third-party beneficiary of the contract between Immediaship and TQL (Immediaship-TQL contract). Before the court is TQL’s motion to strike the third and fourth counts of NER’s amended third party complaint. For the reasons set forth below, the court grants the motion to strike count three and denies the motion to strike count four.
FACTS AND PROCEDURAL HISTORY
The plaintiff’s complaint dated August 10, 2020 alleges that Peening [2] hired NER to transport a shot peen machine and its components (machine) from East Hartford, Connecticut, to Peening’s customer in Cerritos, California. The contract required NER to deliver the machine by a specific date and time, and that NER would be liable for damages if the machine was delivered late or damaged in transit. Peening delivered the machine to NER in East Hartford free of defects and rust, and obtained a bill of lading from NER adequately describing the cargo. The machine was delivered to Peening’s customer two days late and in a damaged condition. Peening asserted four claims against NER, including under the Carmack Amendment, 49 USC §14706 et seq. (2005) (Carmack Amendment), negligence, breach of contract, and breach of the implied covenant of good faith and fair dealing. On October 14, 2020, NER filed its original third-party complaint, alleging that NER hired Immediaship to transport the machine, which in turn hired TQL to transport the machine without NER’s knowledge. TQL then hired Diamond Star Trucking (not a named party in this action) to deliver the machine, with insurance to be provided by Old Republic. (Dkt. #104.) On December 14, 2020, TQL moved to strike counts three (indemnification) and four (third-party beneficiary) [3] of the original third-party complaint on the grounds that (1) NER did not adequately allege and plead third-party beneficiary status, (2) NER lacked standing to bring indemnification or breach of contract claims against TQL as a matter of law, and (3) those counts were preempted by federal law under the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. §14501(c) (2000) (FAAAA), and the Carmack Amendment. (Dkt. #113.) On June 21, 2021, the court (Cobb, J.) granted TQL’s motion to strike, finding that count three failed to sufficiently assert a claim for common-law indemnification against TQL, and that count four failed to allege that NER was the intended third-party beneficiary of the Immediaship-TQL contract. (Dkt. #113.86.)
NER filed an amended third-party complaint on July 7, 2021 (amended third party complaint), addressing the pleading deficiencies highlighted in the ruling granting the motion to strike. (Dkt. #136.) On August 3, 2021, TQL moved to strike the amended third-party complaint, arguing that the amended third-party complaint failed to correct the pleading deficits. (Dkt. #140.) As to count three, TQL asserts that NER’s common-law indemnification claim fails to adequately allege active negligence and/or exclusive control, is preempted by the [4] FAAAA, and that NER lacks standing to assert the claim because NER never had any interest in the cargo being shipped and therefore suffered no injury, even if the cargo was damaged. As to count four, TQL argues that NER’s conclusory allegations are insufficient to state a claim that TQL intended to assume an obligation to NER when it entered into the Immediaship-TQL contract.1 In its opposition papers, NER claims that it cured the defects in its indemnification claim by alleging that TQL was directly responsible for the behavior Peening characterizes as negligence. It also argues that the Carmack Amendment is inapplicable, and that the FAAAA does not preempt state common-law indemnification claims. As to the standing argument, NER admits that it did not have an ownership interest in the machine, but argues that its injury is the risk of liability to Peening if TQL is the sole responsible party. Finally, NER argues that the revised allegations in count four sufficiently allege that NER was an intended third-party beneficiary of the Immediaship-TQL contract. The matter was fully briefed, and the court heard oral argument on the motion to strike at a remote hearing on October 25, 2021. STANDARD OF REVIEW [5] “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court] note[s] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). “If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
DISCUSSION
I. Count Three—Common-Law Indemnification
A. Federal Preemption
Under the FAAAA, “no State or political subdivision thereof . . . shall . . . enforce any law . . . relating to . . . intrastate services of any freight forwarder or broker.” 49 U.S.C. §14501(b)(1). “[A] State . . . may not . . . enforce a law . . . related to a price, route, or service of any motor [6] carrier . . . with respect to the transportation of property.” 49 U.S.C. 14501(c)(1). “The phrase ‘related to’ . . . embraces state laws having a connection with or reference to carrier rates, routes, or services, whether directly or indirectly.” (Internal quotation marks omitted.) Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260, 133 S.Ct. 1769, 185 L.Ed.2d 909 (2013). “Transportation” under Title 49 includes “services related to th[e] movement of property, including arranging for, receipt, delivery, . . . transfer in transit, . . . handling, packing, unpacking, and interchange of . . . property.” Id., 261 (Internal quotation marks and citations omitted.) In the present case, NER’s indemnification claim alleges that TQL is obligated to indemnify NER if NER is found liable for damages relating to the transportation of the machine to Peening’s customer. Thus, the “claim is aimed at the core of [TQL’s] services, arranging for the movement of goods,” and is thus preempted by the FAAAA. Aegis Syndicate 1225 at Lloyds of London v. Fedex Custom Critical, Inc., United States District Court, Docket No. 20-23722-CIV (WPD) (D.Fla 2021) (holding that state law negligence claim arising out of FedEx’s transportation of goods was preempted under the FAAAA).2 Accordingly, the motion to strike count three is granted [7] on FAAAA preemption grounds, and thus the court need not address the alternative grounds for striking this claim.
II. Count Four—Third-Party Beneficiary Status
“The proper test to determine whether a [contract] creates a third party beneficiary relationship is whether the parties to the [contract] intended to create a direct obligation from one party to the [contract] to the third party.” (Internal quotation marks omitted.) Rapaport & Benedict, P.C. v. Stamford, 39 Conn.App. 492, 498, 664 A.2d 1193 (1995). “[T]he fact that a person is a foreseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary . . . Performance of a contract will often benefit a third person. But unless the third person is an intended beneficiary . . . no duty to him is created.” (Citation omitted; footnote omitted; internal quotation marks omitted.) Hilario’s Truck Center, LLC v. Rinaldi, 183 Conn.App. 597, 604, 193 A.3d 683, cert. denied, 330 Conn. 925, 194 A.3d 776 (2018). “[I]ntent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580, 833 A.2d 908 (2003).
NER’s new allegation that “[u]pon information and belief . . . both Immediaship and TQL intended that TQL assume a direct obligation to [NER] under the Immediaship-TQL Agreement” is sufficient to state a claim as [*8] a third-party beneficiary. (Dkt. #136, count four, ¶29.) See Stowe v. Smith, 184 Conn. 194, 195-96, 441 A.2d 81 (1981) (reversing the trial court’s granting of a motion to strike a third-party beneficiary claim because the amended complaint “repeated the allegations of the original complaint but further alleged that the [promisee] and the defendant intended that the defendant, by his agreement . . . would assume a direct obligation to the [promisee’s] intended beneficiaries . . .”).
CONCLUSION
For all of the foregoing reasons, the motion to strike is granted as to count three and denied as to count four.
BY THE COURT
Rosen, J.