liability plaintiffs obtain from the third-party plaintiffs on the state-law claims. The Court therefore concludes that the third-party plaintiffs have no right to contribution under Connecticut law with respect to any judgment that plaintiffs obtain in the main action against the third-party plaintiffs on plaintiffs' state-law claims.
C. Indemnity Under Connecticut Law
Under the law of Connecticut, as elsewhere, an allegedly intentional wrongdoer has no right to seek indemnity from an allegedly negligent third party. See Preferred Accident Insurance Co. of New York v. Musante, Berman & Steinberg Co., 133 Conn. 536, 52 A.2d 862, 865 (1947); W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts, § 51, at 343 (5th ed. 1984) (it is an "obvious fact that there can be no indemnity in favor of the intentional or reckless tortfeasor"). The plaintiffs in this action allege that the third-party plaintiffs actively concealed the existence of the "Secret Commission Agreement" and intentionally obtained $ 600,000 from plaintiffs, and these intentional acts form the basis of plaintiffs' state-law claims against the third-party plaintiffs. In contrast, the third-party plaintiffs allege that the third-party defendants were merely negligent with respect to the legal advice they rendered regarding the third-party plaintiffs' disclosure obligations. The third-party plaintiffs have not cited any Connecticut authority, nor is the Court aware of any, in support of the proposition that under Connecticut law an allegedly intentional wrongdoer may seek indemnity from an allegedly negligent third party. The Court therefore concludes that the third-party plaintiffs may not maintain their claims for indemnity against the third-party defendants for any judgment plaintiffs obtain against the third-party plaintiffs in the main action.
D. Agreement Against Public Policy
The third-party plaintiffs argue that the third-party complaint states a legally sufficient claim for relief for legal malpractice under state law, and that the foregoing analysis with respect to the availability of contribution and indemnity for the state-law claims asserted by plaintiffs should not apply to the instant action. The third-party plaintiffs contend that, as part of the third-party defendants' agreement to render legal advice regarding the Newbrite Shopping Center transaction, the third-party defendants are obligated to provide the third-party plaintiffs with contribution or indemnity for any judgment plaintiffs ultimately obtain against the third-party plaintiffs on the state-law claims in the main action. The third-party plaintiffs' argument fails, however, because any such contractual obligation would be void and unenforceable as against public policy.
Under the law of Connecticut, as elsewhere, contracts contrary to public policy are void and unenforceable. See Williams v. Vista Vestra, Inc., 178 Conn. 323, 422 A.2d 274, 277 (1979). It is well established that contracts providing for indemnity for losses incurred as a result of intentional misconduct are void and unenforceable as against public policy. See, e.g., Acosta v. Honda Motor Co., 717 F.2d 828, 838 n.14 (3d Cir. 1983) ("'It is not disputed that insurance against criminal fines or penalties would be void as violative of public policy. The same public policy should invalidate any contract of insurance against the civil punishment that punitive damages represent.'") (quoting Northwestern National Casualty Co. v. McNulty, 307 F.2d 432, 440 (5th Cir. 1962)); Solo Cup Co. v. Federal Insurance Co., 619 F.2d 1178, 1187 (7th Cir.) ("It is well settled that '[a] contract of insurance to indemnify a person for damages resulting from his own intentional misconduct is void as against public policy and the courts will not construe a contract to provide such coverage.'") (quoting Industrial Sugars, Inc. v. Standard Accident Insurance Co., 338 F.2d 673, 616 (7th Cir. 1964)), cert. denied, 449 U.S. 1033 (1980); Hartford Life Insurance Co. v. Title Guarantee Co., 172 App. D.C. 156, 520 F.2d 1170, 1175 (D.C. Cir. 1975) ("It is only for the knowledgeable and intentional wrongdoer that the practice of voiding insurance contracts as being contrary to public policy is reserved."). "This rule is based on the simple principle long ago stated by Judge Cardozo, that 'no one shall be permitted to take advantage of his own wrong.'" Solo Cup, 619 F.2d at 1187 (quoting Messersmith v. American Fidelity Co., 232 N.Y. 161, 133 N.E. 432 (1921)). Enforcement of a contractual obligation to provide contribution or indemnity to a party for that party's intentional misconduct would contravene the public policy of deterring and penalizing intentional misconduct through civil lawsuits brought by those persons injured by the misconduct. In the instant action, the enforcement of a contractual obligation on the part of allegedly negligent attorneys to provide contribution or indemnity for damages paid by the attorneys' clients on account of the clients' alleged active concealment of the "Secret Commission Agreement" would be inconsistent with the availability of sanctions against such misconduct.
The Court therefore concludes that the third-party plaintiffs' claims for contribution or indemnity with respect to the plaintiffs' state law claims in the main action must be dismissed, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted.
IV. The Independent Negligence and Breach of Contract Claims
In addition to their third-party claims for contribution or indemnity, the third-party plaintiffs have asserted independent claims against the third-party defendants for negligence and breach of contract. The third-party plaintiffs claim that the third-party defendants rendered defective legal advice with respect to the third-party plaintiffs' disclosure obligations regarding the "Secret Commission Agreement." The third-party plaintiffs contend that this allegedly defective legal advice was the proximate cause of the failure of the Newbrite Shopping Center transaction to close, which resulted in the loss of the funds invested in the project as well as of future expected profits.
The third-party plaintiffs concede that these claims for negligence and breach of contract are not third-party claims, but rather are independent claims against the third-party defendants for legal malpractice and are joined in this action pursuant to Fed. R. Civ. P. 18(a). Rule 18(a) provides that "[a] party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal equitable, or maritime, as the party has against an opposing party."
"Once a party has asserted a proper impleader claim, he qualifies under Rule 18(a) to assert any and all additional claims -- regardless of whether transactionally related to the impleader claims -- he may have against the third-party defendant." 3 Moore's Federal Practice, P14.07. In the instant action, the third-party plaintiffs have failed to assert any proper impleader claims against the third-party defendants; and, because the third-party plaintiffs' claims for contribution or indemnity must be dismissed for failure to state a claim upon which relief can be granted, the third-party plaintiffs's independent claims, joined pursuant to Rule 18(a), must be dismissed as well. The Court notes, however, that nothing in this opinion precludes the third-party plaintiffs from asserting these direct claims for legal malpractice against the third-party defendants in Connecticut state court.
For the reasons stated above, the third-party defendants' motion to dismiss the third-party complaint is granted.
New York, New York
March 30, 1992
Peter K. Leisure