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*********************************************** 
BRASS MILL CENTER, LLC v. SUBWAY

REAL ESTATE CORP. ET AL.

(AC 44436)

Suarez, Clark and Sheldon, Js.

Syllabus

The plaintiff shopping mall sought indemnification from the defendant A

Co., a security company it contracted with to provide security services to

the mall property, including crime prevention. The plaintiff had incurred

economic losses as a result of a separate wrongful death action brought

against it by the administrator of the estate of a pedestrian who had

been struck and killed while crossing the roadway surrounding the mall

while on her way to work in the mall. The wrongful death action alleged

that the plaintiff’s negligence caused the collision by, inter alia, its design

of the mall’s parking lots and roads and its failure to implement various

traffic calming measures. The plaintiff demanded defense and indemnification from A Co. in connection with the wrongful death action; A Co.

denied the plaintiff’s demand, explaining that A Co. was not responsible

for the design of the roadway or the absence of traffic calming measures.

The plaintiff filed a motion for summary judgment in the indemnification

action, asserting that, inter alia, A Co. had a contractual duty to defend

and indemnify the plaintiff in connection with the wrongful death action,

and A Co. filed a cross motion for summary judgment. The trial court

denied A Co.’s motion, granted the plaintiff’s motion as to liability and

awarded damages to the plaintiff. On A Co.’s appeal to this court, held

that the trial court erred in granting the plaintiff’s motion for summary

judgment and denying A Co.’s motion for summary judgment, as A Co.

was entitled to judgment in its favor as a matter of law: A Co.’s obligation

to defend the plaintiff was not triggered by the wrongful death action,

as the wrongful death action did not contain allegations of negligence

or other conduct that even arguably fell within the scope of A Co.’s

contractual responsibilities to provide security services, and the court

erroneously conflated the allegations in the wrongful death action

regarding traffic control with A Co.’s contractual obligations for crime

prevention as the security contractor for the property; moreover, as A Co.

did not have a duty to defend the plaintiff pursuant to the indemnification

provision of the security contract, A Co. did not have a duty to indemnify

the plaintiff.

Argued March 2—officially released August 9, 2022

Procedural History

Action for, inter alia, indemnification for economic

losses allegedly incurred by the plaintiff, and for other

relief, brought to the Superior Court in the judicial district of Waterbury, where the action was withdrawn as

against the named defendant et al.; thereafter, the court,

Roraback, J., denied in part the motion for summary

judgment filed by the defendant AlliedBarton Security

Services, LLC, and granted the plaintiff’s motion for

summary judgment as to liability; subsequently, after a

hearing in damages, the court, Roraback, J., rendered

judgment for the plaintiff, from which the defendant

AlliedBarton Security Services, LLC, appealed to this

court. Reversed; judgment directed.

Ashley A. Noel, with whom was Cassandra Pilczak,

for the appellant (defendant AlliedBarton Security Services, LLC).

Michael Smith, for the appellee (plaintiff).
Opinion

CLARK, J. The defendant AlliedBarton Security Services, LLC,1 appeals from the judgment rendered by the

trial court in favor of the plaintiff, Brass Mill Center,

LLC, granting summary judgment as to liability and

awarding damages. The defendant argues that the trial

court improperly concluded that it had a contractual

duty (1) to defend the plaintiff in an underlying wrongful

death action brought against the plaintiff and (2) to

indemnify the plaintiff in that same wrongful death

action, including for attorney’s fees and costs that the

plaintiff incurred in pursuing claims against third parties. We agree and, accordingly, reverse the judgment

of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff, the owner of the Brass

Mill Center & Commons shopping mall in Waterbury

(mall), and the defendant, a security company, are parties to a security agreement, which sets forth the security services that the defendant is obligated to provide

the plaintiff. The security agreement states that ‘‘[The

defendant’s] personnel assigned to the Property2

shall

be responsible for promoting a pleasant shopping atmosphere and crime prevention efforts through patrol of

the Property; seeking out and providing appropriate

customer service to patrons; reasonable inspection of

the Property for safety hazards and enforcement of the

Property’s rules and regulations; appropriate response

to incidents and emergencies; preliminary investigation

and appropriate disposition of incidents; access control/physical security as appropriate during operating

and non-operating hours; official reporting of activities,

incidents, and inspection logs; and any special assignments and/or events related to the security/safety function of the Property as agreed upon by the parties.’’

(Footnote added.)

The security agreement also contains an indemnification provision that provides in relevant part that ‘‘[the

defendant] agrees that [i]t shall defend, indemnify, and

hold harmless [the plaintiff] . . . from and against any

claims, liabilities, losses, damages, actions, causes of

action, or suits to the extent caused by (A) any actual

or alleged negligent or grossly negligent act or omission

or willful misconduct of [the defendant] or its agents

or employees at the Property or in connection with this

Agreement or breach thereof in any way . . . .’’3

At approximately 8:20 a.m. on December 21, 2012,

Yaneli Nava Perez, who was a pedestrian crossing the

travel lane of the mall on her way to work in the mall’s

food court, was struck by a vehicle driven by a seventeen year old unlicensed driver. The weather conditions

at the time of the accident were poor, with heavy to

torrential rains and high wind gusts. The windows of the

vehicle were obscured by ‘‘fog,’’ preventing the young
driver from seeing Perez at the time of the collision.

After the Waterbury police and emergency responders

arrived at the scene, Perez was transported by ambulance to St. Mary’s Hospital for emergency treatment,

where she later succumbed to her injuries.

In 2014, Gabriel Avendano, the administrator of the

estate of Yaneli Nava Perez, filed a four count complaint

(Avendano complaint) against the plaintiff, General

Growth Services, Inc., General Growth Management,

Inc., and Anthony Guerriero (Avendano action).4 As

we discuss in greater detail later in this opinion, the

Avendano complaint alleged eight separate allegations

of negligence against the plaintiff, including, inter alia,

that the plaintiff failed to install or use any traffic calming measures on the roadway within the mall premises

that ran parallel to Union Street and designed the premises in such a way so as to allow motorists to easily

travel at unsafe rates of speed through areas routinely

filled with pedestrians. The Avendano complaint did

not name the defendant as a defendant.

On October 5, 2015, pursuant to the security agreement, the plaintiff demanded defense and indemnification from the defendant with respect to the Avendano

action. By letter dated October 23, 2015, the defendant

denied the plaintiff’s tender, explaining, inter alia, that

the Avendano complaint did not allege that the plaintiff

‘‘failed to do something that was required of [the defendant] under the [security] [a]greement. [The defendant]

was clearly not responsible for the design of the roadway or the absence of traffic calming measures.’’

On August 25, 2016, the plaintiff filed the present

action against the defendant, Subway Real Estate Corp.

(Subway), and Foot Locker Retail, Inc. (Foot Locker).

The complaint asserts two causes of action against the

defendant: count VI alleges that the defendant had a

contractual duty to defend and indemnify the plaintiff

in connection with the Avendano complaint, and count

VII alleges a common-law indemnification claim.

On October 28, 2019, the parties filed cross motions

for summary judgment. In a memorandum of decision

dated June 11, 2020, the court, Roraback, J., granted

the plaintiff’s motion as to liability on the contractual

indemnification claim but denied its motion with

respect to the common-law indemnification claim. In

so doing, the court concluded, as a matter of law, that

the Avendano complaint could ‘‘fairly [be] read to allege

negligent acts or omissions for which [the defendant]

was responsible under its contractual duties to inspect,

monitor and secure the property . . . .’’ Accordingly,

it held that the defendant had a duty to defend the

plaintiff. The court also held that the defendant had a

duty to indemnify the plaintiff.5 The court also denied

the defendant’s motion for summary judgment in its

entirety.
On July 1, 2020, the defendant filed a motion to reargue/reconsider the court’s June 11, 2020 decision

arguing, inter alia, that, because the court had denied

the plaintiff’s motion for summary judgment with

respect to the common-law indemnification claim on

the basis that the plaintiff was unable to satisfy two of

the four elements required to prevail on its claim, the

court should have granted the defendant’s motion for

summary judgment with respect to that claim. On July

17, 2020, the court issued a decision granting the defendant’s motion for summary judgment as to the plaintiff’s

common-law indemnification claim.6

On September 9, 2020, the court held a hearing in

damages. In a memorandum of decision dated December 3, 2020, the trial court awarded the plaintiff damages

totaling $426,807.97,7 plus offer of compromise interest

on that amount at a rate of 8 percent per annum from

May 24, 2019, until the date that judgment entered, and

postjudgment interest at a rate of 5 percent per annum

from the date that judgment entered until the date the

judgment is satisfied. This appeal followed.

We begin by setting forth our standard of review.

‘‘Summary judgment rulings present questions of law;

accordingly, [o]ur review of the . . . decision to grant

[a] . . . motion for summary judgment is plenary.’’

(Internal quotation marks omitted.) Farrell v. TwentyFirst Century Ins. Co., 301 Conn. 657, 661, 21 A.3d 816

(2011); see also Practice Book § 17-49. In addition, the

interpretation of definitive contract language presents

a question of law, over which our review also is plenary.

See, e.g., CCT Communications, Inc. v. Zone Telecom,

Inc., 327 Conn. 114, 133, 172 A.3d 1228 (2017); see also

Misiti, LLC v. Travelers Property Casualty Co. of

America, 308 Conn. 146, 154, 61 A.3d 485 (2013).

We must also determine the appropriate standard of

review and analysis to employ when deciding whether

one sophisticated business party to a contract has a

contractual duty to defend a claim brought against

another sophisticated business party to that contract.

The duty to defend most commonly arises in the context

of a contract of insurance; see, e.g., DaCruz v. State

Farm Fire & Casualty Co., 268 Conn. 675, 687, 846

A.2d 849 (2004); and our courts have made clear that

‘‘whether an insurer has a duty to defend its insured is

purely a question of law . . . .’’ (Internal quotation

marks omitted.) Lift-Up, Inc. v. Colony Ins. Co., 206

Conn. App. 855, 866, 261 A.3d 825 (2021). Our appellate

courts have not previously addressed whether our standard of review and analysis regarding a duty to defend

in the context of insurance contracts should apply to

contracts between sophisticated business entities that

contain similar provisions. See, e.g., Henderson v. Bismark Construction Co., Superior Court, judicial district

of Fairfield, Docket No. CV-17-6062488-S (July 10, 2019)

(68 Conn. L. Rptr. 852, 853) (‘‘[a]lthough research did
not reveal any appellate authority, and the parties have

not provided any appellate authority, a few Superior

Court decisions have discussed whether the law on an

insurer owing a duty to defend applies to the analysis

of whether one of two commercial parties owes a duty

to defend to the other based on a contract for indemnity’’). In reviewing our case law, we discern no reason

to apply a different analysis in such cases.8 Accordingly,

we hold that ‘‘[t]he question of whether [one sophisticated business party] has a [contractual] duty to defend

[another sophisticated business party] is purely a question of law, which is to be determined by comparing

the allegations of [the] complaint with the terms of the

[parties’ agreement].’’ (Internal quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co.

of America, supra, 308 Conn. 154.

With this standard of review in mind, we next turn to

the legal principles that inform our analysis. ‘‘A contract

must be construed to effectuate the intent of the parties,

which is determined from the language used interpreted

in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he

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 applied to the subject matter of the contract.

. . . Where the language of the contract is clear and

unambiguous, the contract 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 . . . . Similarly, any ambiguity

in a contract must emanate from the language used in

the contract rather than from one party’s subjective

perception of the terms.’’ (Internal quotation marks

omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d

1277 (2000).

Moreover, as noted, we conclude that a duty to defend

in the context of insurance contracts applies equally to

contracts between sophisticated business parties that

contain similar defense and indemnification provisions.

To that end, it is well settled that an insurer’s duty to

defend ‘‘is determined by reference to the allegations

contained in the [underlying] complaint.’’ (Internal quotation marks omitted.) DaCruz v. State Farm Fire &

Casualty Co., supra, 268 Conn. 687. The duty to defend

‘‘does not depend on whether the injured party will

successfully maintain a cause of action against the

insured but on whether [the complaint] stated facts

which bring the injury within the coverage.’’ (Internal

quotation marks omitted.) Security Ins. Co. of Hartford

v. Lumbermens Mutual Casualty Co., 264 Conn. 688,

712, 826 A.2d 107 (2003). ‘‘If an allegation of the complaint falls even possibly within the coverage, then the

insurance company must defend the insured.’’ (Internal
quotation marks omitted.) Moore v. Continental Casualty Co., 252 Conn. 405, 409, 746 A.2d 1252 (2000).

However, an insurer ‘‘has a duty to defend only if the

underlying complaint reasonably alleges an injury that

is covered by the policy.’’ (Emphasis in original.) Misiti,

LLC v. Travelers Property Casualty Co. of America,

supra, 308 Conn. 156. ‘‘[W]e will not predicate the duty

to defend on a reading of the complaint that is . . .

conceivable but tortured and unreasonable.’’ (Internal

quotation marks omitted.) Id.

‘‘In contrast to the duty to defend, the duty to indemnify is narrower: while the duty to defend depends only

on the allegations made against the insured, the duty

to indemnify depends upon the facts established at trial

and the theory under which judgment is actually entered

in the case.’’ (Internal quotation marks omitted.) Board

of Education v. St. Paul Fire & Marine Ins. Co., 261

Conn. 37, 48–49, 801 A.2d 752 (2002). ‘‘[W]here there

is no duty to defend, there is no duty to indemnify,

given the fact that the duty to defend is broader than

the duty to indemnify.’’ QSP, Inc. v. Aetna Casualty &

Surety Co., 256 Conn. 343, 382, 773 A.2d 906 (2001).

With these principles in mind, we turn our attention

to the language of the indemnification provision in the

parties’ security agreement. By its terms, ‘‘[The defendant] agrees that [i]t shall defend, indemnify, and hold

harmless [the plaintiff], GGP Limited Partnership and

General Growth Properties, Inc. (‘Indemnitees’) and the

agents, officers and employees of all of the Indemnitees

from and against any claims, liabilities, losses, damages,

actions, causes of action, or suits to the extent caused

by (A) any actual or alleged negligent or grossly negligent act or omission or willful misconduct of [the defendant] or its agents or employees at the Property or in

connection with this Agreement or breach thereof in

any way . . . .’’ It further provides that ‘‘[i]t is intended

that all claims and demands, legal proceedings and lawsuits in which any party to this Agreement or additional

insured under this Agreement is named or described

as a defendant which alleges or describes any claim in

which [the defendant] or a security officer has done or

has failed to do any act or thing required pursuant to

this Agreement or failed to provide the Services at the

Property shall be a claim tendered to, accepted by or

defended by [the defendant].’’ See footnote 3 of this

opinion.

As the language of the indemnification provision

makes clear, the defendant agreed to defend the plaintiff against claims brought against the plaintiff alleging

conduct falling within the scope of the defendant’s obligations under the security agreement. With respect to

the scope of the defendant’s obligations under the contract, section 3 of the security agreement sets forth the

‘‘On-Site Contracted Services.’’ In particular, subsection

B of section 3, titled ‘‘Security Functions,’’ provides:
‘‘[The defendant’s] personnel assigned to the Property

shall be responsible for promoting a pleasant shopping

atmosphere and crime prevention efforts through patrol

of the Property; seeking out and providing appropriate

customer service to patrons; reasonable inspection of

the Property for safety hazards and enforcement of the

Property’s rule and regulations; appropriate response

to incidents and emergencies; preliminary investigation

and appropriate disposition of incidents; access control/physical security as appropriate during operating

and non-operating hours; official reporting of activities,

incident, and inspection logs; and any special assignments and/or events related to the security/safety function of the Property as agreed upon by the parties.’’

Additionally, section 3 of the security agreement

addresses ‘‘Duties/Responsibilities.’’ Specifically, subsection H of section 3 of the security agreement states

that the defendant ‘‘shall provide a comprehensive security policy and procedures manual for the Property

(‘Manual’). The Manual shall consist of [the defendant’s]

mall security guidelines and site-specific ‘security

orders’. Site-specific ‘security orders’ shall include, but

not be limited to, mall organizational structure, radio

call signs and procedures, code of conduct, tenant rules,

commonly encountered state laws, banning guideline,

shift procedures to include opening and closing procedures, and site specific inspections. The Property Manager9

shall have the right to approve any site-specific

‘security orders’ related to the operation of the Property. [The defendant’s] Security Staff shall be familiar

with, understand and adhere to the requirements of The

Manual at all times. The Manual shall be developed

within thirty (30) days following the Effective Date and

shall be updated during the Term at the request of [the

defendant], the Property Manager, or the GGP Corporate Security Director.’’ (Footnote added.)

At this point, we must determine whether the Avendano complaint triggered the defendant’s duty to defend

the plaintiff under the terms of the security agreement.

The defendant argues that the allegations in the Avendano complaint did not fall within its contractual obligations under the security agreement because the complaint did not contain any allegations of negligence, or

other conduct, that even arguably falls within the scope

of the defendant’s contractual responsibilities under

the security agreement. The plaintiff disagrees. In its

view, the security agreement ‘‘is notably broad and certainly encompasses the mall parking lot/roadway safety

claims asserted in the [Avendano complaint].’’ On the

basis of our review of the security agreement and the

allegations in the Avendano complaint, we conclude

that the defendant’s obligation to defend the plaintiff

was not triggered by the Avendano complaint.

The Avendano complaint alleged that the plaintiff

negligently caused the subject collision because it
‘‘failed to install or use any traffic calming measure on

the roadway within the mall premises that ran parallel

to Union Street’’; ‘‘failed to install or use sufficient traffic

calming measures on the roadway within the mall premises that ran parallel to Union Street’’; ‘‘knew that

numerous accidents occurred on the roadway within

the mall that ran parallel to Union Street but failed to

make any measures to slow traffic down’’; ‘‘failed to

properly inspect the traffic, accidents, parking areas

and internal roadways’’; ‘‘designed the premises in such

a way so as [to] allow motorists to easily travel at

unsafe rates of speed through areas routinely filled with

pedestrians’’; ‘‘knew or should have known that motorists sped through the mall property, yet took no steps to

slow them down’’; ‘‘ignored the need for traffic calming

measures at the Brass Mill Center for economic reasons’’; and/or ‘‘knew that other mall properties within

the General Growth Properties company installed and

used traffic calming measures to protect pedestrians,

yet failed to implement any such procedures at the

Brass Mill Center.’’

It is clear from these allegations that the theory of

liability against the plaintiff was premised on the layout

and design of the mall’s internal roadways and parking

lots and the plaintiff’s alleged failure to monitor and

implement traffic calming measures on the property to

prevent motor vehicles from operating at excessive

rates of speed. We have found nothing in the security

agreement or the procedures manual that suggests that

the defendant had any obligation to monitor or control

traffic, to design or redesign the layout of the parking

lots or roads, or otherwise to implement traffic calming

measures.10

Upon our review of the Avendano complaint and the

security agreement, we agree with the defendant that

the court erroneously conflated the allegations of the

Avendano complaint regarding traffic control and

design with the defendant’s responsibility for crime prevention as the security contractor for the property. The

defendant’s obligations under the security agreement

to respond to ‘‘incidents and emergencies’’; to notify

law enforcement; to make ‘‘reasonable inspection of

the Property for safety hazards’’; to prepare incident

reports and inspection logs after those occurrences;

and to ‘‘track statistical trending for the Property’’ do

not include or impose upon the defendant any obligation to control the traffic on the property, install traffic

calming measures, or design or redesign the mall’s parking lots or thoroughfares.

Although the plaintiff points to the allegation in the

Avendano complaint that the plaintiff ‘‘failed to properly

inspect the traffic, accidents, parking areas and internal

roadways’’ as the basis for its contention that the Avendano complaint triggered the defendant’s duty to

defend, we are not persuaded that this allegation falls
within the defendant’s obligation under the security

agreement to make ‘‘reasonable inspection of the Property for safety hazards.’’ Rather, that allegation, read

within the context of the entire Avendano complaint,

clearly pertains to the plaintiff’s alleged failure to properly design the mall’s parking lots and roads and implement traffic calming measures—obligations not coming

within the defendant’s contractual obligations. Indeed,

it is difficult to conjure a contrary interpretation in

light of the nature of the claims made in the Avendano

complaint. We decline to ‘‘predicate the duty to defend

on a reading of the complaint that is . . . conceivable

but tortured and unreasonable.’’ (Internal quotation

marks omitted.) R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 171 Conn. App. 61, 91, 156 A.3d

539 (2017), aff’d, 333 Conn. 343, 216 A.3d 629 (2019).

As such, we cannot conclude that the Avendano ‘‘complaint reasonably alleges an injury that is covered by

the [indemnification provision].’’ (Emphasis in original;

internal quotation marks omitted.) Kling v. Hartford

Casualty Ins. Co., 211 Conn. App. 708, 714, 273 A.3d

717, cert. denied, 343 Conn. 926, 275 A.3d 627 (2022).

Because we conclude that, as a matter of law, the

defendant did not have a duty to defend the plaintiff

pursuant to the indemnification provision of the security agreement, it inexorably follows that the defendant

did not have a duty to indemnify the plaintiff either.

See, e.g., QSP, Inc. v. Aetna Casualty & Surety Co.,

supra, 256 Conn. 382 (‘‘where there is no duty to defend,

there is no duty to indemnify, given the fact that the

duty to defend is broader than the duty to indemnify’’).

We therefore conclude that the trial court improperly

granted summary judgment in favor of the plaintiff. In

light of the absence of any genuine issue of material

fact as well as our conclusion that the defendant did

not owe the plaintiff a duty to defend or indemnify, the

defendant is entitled to judgment in its favor as a matter

of law.

The judgment is reversed and the case is remanded

with direction to deny the plaintiff’s motion for summary judgment and to grant the defendant’s motion for

summary judgment and to render judgment thereon for

the defendant.

In this opinion the other judges concurred.

1 Subway Real Estate Corp. (Subway) and Foot Locker Retail, Inc. (Foot

Locker), were also named as defendants in the present action. The plaintiff’s

claims for defense and indemnity against Subway and Foot Locker were

eventually settled leaving AlliedBarton Security Services, LLC, as the sole

defendant in this case. Accordingly, we refer to AlliedBarton Security Services, LLC, as the defendant in this opinion.

2 The security agreement defines ‘‘ ‘Property’ ’’ as the ‘‘Brass Mill Center &

Commons located at 495 Union Street, Waterbury, CT 06706.’’

3 Section 8 (e) of the security agreement provides in its entirety: ‘‘[The

defendant] agrees that [i]t shall defend, indemnify, and hold harmless [the

plaintiff], GGP Limited Partnership and General Growth Properties, Inc.

(‘Indemnitees’) and the agents, officers and employees of all of the Indemnitees from and against any claims, liabilities, losses, damages, actions, causes

of action, or suits to the extent caused by (A) any actual or alleged negligent

or grossly negligent act or omission or willful misconduct of [the defendant]
or its agents or employees at the Property or in connection with this Agreement or breach thereof in any way, (B) [the defendant’s] failure to purchase

and maintain all insurance required by this Agreement and (C) negligence

or willful misconduct of [the defendant] or its agents or employees in any

operation of a Security Vehicle under this Agreement. It is intended that all

claims and demands, legal proceedings and lawsuits in which any party to

this Agreement or additional insured under this Agreement is named or

described as a defendant which alleges or describes any claim in which [the

defendant] or a security officer has done or has failed to do any act or thing

required pursuant to this Agreement or failed to provide the Services at the

Property shall be a claim tendered to, accepted by or defended by [the

defendant]. [The plaintiff] shall within thirty (30) days after notice of any

incident, potential claim or suit, or service of legal process, provide [the

defendant], at AlliedBarton Security Services LLC, Eight Tower Bridge, 161

Washington Street, Suite 600, Conshohocken, PA 19428 to the attention of

Michael A. Meehan, Vice President/Deputy General Counsel with written

notice that an action has been brought and shall require [the defendant],

at its own expense, to employ such attorneys as [the defendant] may see

fit to employ, and as reasonably approved by [the plaintiff’s] Director of Risk

Management, to defend such claim or action on behalf of the Indemnitees.

If a tender of defense and/or indemnity is refused by [the defendant] or its

insurer, or if a defense is provided under any reservation of rights and [the

plaintiff] does not consent to such refusal or reservation of rights, [the

defendant] shall pay liquidated damages in the sum of $2,000.00 to [the

plaintiff] for the amount of the added internal expense incurred by the

Indemnitees in dealing with the claim or action for which tender was refused

or rights reserved. This liquidated damages provision shall be in addition

to the Indemnitees’ actual costs of defense, investigation, litigation, litigation

management expenses for in-house counsel, costs of trial and/or settlement

of the claim which are incurred by the Indemnitees which shall be billed

to [the defendant] as incurred until the tender is accepted without reservation. The provisions of this paragraph shall survive the termination or expiration of this Agreement and shall not be construed to provide for any indemnification which would, as a result thereof, make the provisions of this

paragraph void or to reduce or eliminate any other indemnification or right

which the indemnified parties have be law.’’

4 The complaint alleged that the plaintiff, General Growth Services, Inc.,

and General Growth Management, Inc., were owners and operators of the

mall and its parking lots and internal roadways and that Guerriero was the

manager of the mall on the day of the accident.

5

In the defendant’s motion for summary judgment, the defendant also

argued that it was entitled to summary judgment because the plaintiff failed

to provide the defendant with the requisite thirty day written notice set

forth in the indemnification provision of the security agreement. The court

rejected that argument, stating, inter alia, that the defendant failed ‘‘to

plead lack of proper notice as a special defense,’’ which ‘‘precludes it from

prevailing on this ground in the context of either winning its motion for

summary judgment or defeating [the plaintiff’s] motion for summary judgment.’’ The defendant does not challenge this portion of the court’s judgment

on appeal.

6 The plaintiff has not appealed from that decision.

7 The court found that the plaintiff paid the sum of $500,000 to settle the

Avendano action, and received contributions from three third parties in the

aggregate amount of $255,000 toward the settlement. Accordingly, the court

found that the plaintiff’s damages were the unpaid portion of the Avenado

settlement—$245,000. The court also found that the legal fees expended by

the plaintiff were reasonable, including the legal fees expended by the

plaintiff in obtaining contributions from Subway, Foot Locker, and the plaintiff’s prior counsel, reasoning that the contributions the plaintiff received

inured to the benefit of the defendant. In total, the court awarded legal fees

and expenses in the amount of $179,807.97. Last, the court held that the

plaintiff was entitled to $2000 in liquidated damages pursuant to the security

agreement.

8 We note that numerous Superior Court decisions also have held that

that our jurisprudence regarding a duty to defend in the context of insurance

contracts applies equally to contracts between sophisticated business parties

that contain similar defense and indemnification provisions. See, e.g., Henderson v. Bismark Construction Co., supra, 68 Conn. L. Rptr. 853–54 (collecting cases); Gemma Power Systems, LLC v. Smedley Co., Superior Court,

judicial district of Hartford, Docket No. CV-15-6059165 (July 26, 2017)

(same).

9

‘‘Property Manager’’ is defined as ‘‘[the plaintiff’s] property manager.’’
10 To the extent there is any ambiguity with respect to the defendant’s

obligations under the security agreement, undisputed evidence in the record

resolves that ambiguity in favor of the defendant. The plaintiff’s own representative, Guerriero, the general manager of the mall, testified at a deposition

that traffic calming measures, including implementing signage on the mall’s

roadways to slow vehicular traffic down, fell within the plaintiff’s purview

and was not the defendant’s contractual obligation. Similarly, Steven Crumrine, the corporate security director for General Growth Properties, Inc., who

oversees the defendant’s compliance with the security agreement, testified

at a deposition that the defendant was not responsible for installation,

implementation, and/or design of the roadway within the mall property and

testified that there was no language within the security agreement that

required the defendant to employ, install, and/or use traffic calming measures

or slow down traffic on the roadway. When asked whether there was an

expectation for a security officer of the defendant to attempt to stop a

speeding motorist if the officer observed one, Crumrine testified, ‘‘No.’’ He

indicated that ‘‘[t]hey’re not trained nor do they have the legal authority to

do that. Their own policies and procedures manual would prohibit them

from pulling over a vehicle, and we wouldn’t expect them to do that either

because it presents an elevated risk. It’s not what they’re trained to do.’’

Tawana Perry, the defendant’s national account portfolio manager for General Growth Properties, Inc., similarly confirmed in her deposition testimony

that the defendant was not responsible for traffic calming measures.