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Robert Leach and Keesha Leach v. Rafail Kaykov

March 30, 2011

ROBERT LEACH AND KEESHA LEACH, PLAINTIFFS,
v.
RAFAIL KAYKOV, J. FLETCHER CREAMER & SON, INC., AND
ROYAL DISPATCH SERVICE, INC., DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

Plaintiffs Robert W. Leach and Keesha Leach (collectively, the "plaintiffs") brought this diversity suit, alleging causes of action sounding in negligence for personal injuries and loss of consortium against defendants Rafail M. Kaykov ("Kaykov"), J. Fletcher Creamer & Sons, Inc. ("Fletcher"), and Royal Dispatch Service, Inc. ("Royal")*fn1 . (ECF No. 27, Second Am. Compl. ("Compl.") ¶¶ 1-2, 43-71.) Robert Leach ("Leach") alleges that he suffered personal injuries from a motor vehicle accident in New Jersey between a livery vehicle, in which he was a passenger and which was driven by Kaykov, and a vehicle leased and operated by Fletcher. (Id. ¶¶ 1-6, 14-15, 20, 35, 38, 40-54.) On December 8, 2008, Fletcher filed cross- claims for contribution and/or indemnification*fn2 against Kaykov and Royal, which dispatched Kaykov's livery vehicle. (ECF No. 37, Verified Answer to Second Am. Compl. ("Fletcher Answer") ¶¶ 30-33.) On March 25, 2009, Kaykov and the plaintiffs entered into a stipulation discontinuing with prejudice all of their respective claims against Royal. (ECF No. 86, Stipulation of Discontinuance.) Accordingly, Fletcher's two cross-claims are the only claims against Royal remaining in this action.

Royal now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) to dismiss both of Fletcher's cross-claims asserted against Royal on the grounds that the undisputed facts establish that Royal cannot be held vicariously liable for the torts of Kaykov, and thus, Royal cannot be liable to Fletcher for contribution or indemnification as a matter of law in the event that Fletcher and Kaykov are found to be joint tortfeasors. (ECF No. 82, Mem. of Law in Supp. of Royal Dispatch, Inc.'s Mot. for Summ. J. ("Royal's Mem. in Supp.").) Fletcher opposes the motion, arguing that there are questions of fact as to the degree of control Royal exercised over Kaykov, which preclude summary judgment. (No. 78, Mem. of Law in Opp. ("Fletcher's Mem. in Opp.").) The court heard oral argument on February 28, 2011, and, at the conclusion of the hearing, the parties declined the court's invitation to make any further submissions. (Tr. of Oral Argument, dated 2/28/11 ("2/28/11 Tr.") at 30, 35; 2/28/11 Minute Entry.) For the following reasons, Royal's motion for summary judgment is granted in part and denied in part.

BACKGROUND

I. Facts*fn3

The material facts regarding Fletcher's cross-claims for contribution and/or indemnification based on the parties' submissions are as follows.

A. The Accident

On July 17, 2007, Leach returned to New York after a business trip. (Royal's 56.1 Statement of Material Facts ("Royal's 56.1") ¶ 1; Fletcher's 56.1 Counterstatement of Material Facts ("Fletcher's 56.1") ¶ 1; Ex. T, Robert Leach's Deposition ("Pl.'s Dep.") at 13-17.) Through Royal, Leach's employer arranged for a livery car to drive Leach from New York to his home in Pennsylvania. (Royal's 56.1 ¶¶ 2-3; Fletcher's 56.1 ¶¶ 2-3; Ex. T, Pl.'s Dep. at 16-18.) Royal dispatched a black Lincoln Town Car,*fn4 owned, insured, and driven by Kaykov, to take Leach to his home in Pennsylvania. (Royal's 56.1 ¶¶ 2-3; Fletcher's 56.1 ¶¶ 2-3; Ex. U, 12/5/08 Dep. of Def. Rafail Kaykov ("Kaykov's 12/5/08 Dep.") at 40.)

En route to Pennsylvania, the car was involved in a motor vehicle accident while traveling westbound on Route 80 in the Township of Mount Olive, County of Morris, New Jersey. (Royal's 56.1 ¶ 3; Fletcher's 56.1 ¶ 3; Ex. U, Kaykov's 12/5/08 Dep. at 38; Compl. ¶¶ 1-3.) Although the parties disagree as to the exact events leading up to the accident (compare Royal's 56.1 ¶ 3; Ex. U, Kaykov's 12/5/08 Dep. at 38-67; Compl. ¶¶ 1-3; Ex. R, Photographs; Ex. V, 1/8/09 Deposition of Kaykov ("Kaykov's 1/8/09 Dep.") at 154 with Fletcher's 56.1 ¶ 3; Ex. W, 1/8/09 Dep. of Theodore Sudal ("Sudal 1/8/09 Dep.") at 8, 38-40, 56, 57, 59, 75, 90; Ex. X, 1/9/09 Dep. of Theodore Sudal ("Sudal 1/9/09 Dep.") at 33), it is undisputed that the Lincoln Town Car, owned, insured, and operated by Kaykov, struck a construction vehicle leased and operated by Fletcher, which was stopped in the left lane of traffic on Route 80. (Royal's 56.1 ¶¶ 2-3, 8; Fletcher's 56.1 ¶¶ 2-3, 8; Ex. R, Photographs.) Leach alleges he suffered severe and permanent personal injuries from this accident and his wife, Keesha Leach, alleges that she suffered loss of consortium due to her husband's injuries. (Compl. ¶¶ 5-6, 52, 64, 70-71.)

B. The Relationship between Royal and Kaykov Royal operates a vehicle-for-hire dispatch service that receives calls from customers who want to be driven from one location to another. (Royal's 56.1 ¶ 10; Fletcher's 56.1 ¶ 10; Ex. Y, Dep. of Amnon Oberlander, Franchise Liaison ("Oberlander Dep.") at 5-6.) Royal refers each call to a driver through a computer system required and installed by Royal in every driver's car; the driver may ignore, reject, or accept each call offered to him or her by Royal. (Royal's 56.1 ¶ 10; Fletcher's 56.1 ¶ 10; Ex. Y, Oberlander Dep. at 6, 8.)

Kaykov has driven for Royal since he entered into a franchise agreement (the "Franchise Agreement") with Royal on or about April 3, 2000.*fn5 (Royal's 56.1 ¶ 4; Fletcher's 56.1 ¶ 4; Ex. O, Franchise Agreement.) The Franchise Agreement between Kaykov and Royal identifies drivers, like Kaykov, as "franchisees" of Royal and defines a "franchisee" as "an independent businessman" who is "not deemed to be an employee or agent of [Royal]." (Ex. O, Franchise Agreement ¶ 41.) As per the Franchise Agreement, Kaykov independently owns his Lincoln Town Car, for which he carries his own insurance and maintains his own New York State Driver's license and New York City Taxi and Limousine Commission License. (Royal's 56.1 ¶ 8; Fletcher's 56.1 ¶ 8; Ex. J, Department of Motor Vehicles Registration; Ex. K, Automobile Insurance Card; Ex. L, New York City Taxi and Limousine License.)

C. Royal's Dispatch Services Generally Royal's dispatch service, as governed by the policies and procedures contained within the Franchise Agreement and the Rulebook, described infra, functions on a day-to-day basis as follows. Royal advertizes its dispatch services to companies in the tri-state area. (Ex. Y, Oberlander Dep. at 6-8.) Any company can open an account with Royal, which entitles the company to authorize its employees to use vehicles dispatched by Royal. (Id. at 6-8.) When an account-holding company would like a car to pick up one of its employees, the company calls Royal, which then dispatches the request to one of its drivers.*fn6

(Id. at 6-8.)

Case 1:07-cv-04060-KAM -VVP Document 88 Filed 03/30/11 Page 7 of 65Passenger pick-ups are assigned to and can be accepted or rejected by drivers via a computer system. (Royal's 56.1 ¶¶ 7, 10; Fletcher's 56.1 ¶¶ 7, 10; Ex. Y, Oberlander Dep. at 8, 22; Ex. O, Franchise Agreement ¶ 1.) Royal requires the use of and installs these computer systems, at each franchisee's expense, in each franchisee's car. (Royal's 56.1 ¶ 7; Fletcher's 56.1 ¶ 7; Ex. Y, Oberlander Dep. at 22; Ex. O, Franchise Agreement ¶ 1.) Franchisees, including Kaykov, provide Royal with a security deposit in exchange for the computer equipment. (Royal's 56.1 ¶ 7; Fletcher's 56.1 ¶ 7; Ex. O, Franchise Agreement ¶¶ 2, 3(c).) The security deposit is reimbursed upon termination of the Franchise Agreement and return of the equipment in good condition. (Royal's 56.1 ¶ 7; Fletcher's 56.1 ¶ 7; Ex. O, Franchise Agreement ¶ 3(c).)

The computer system can provide route assistance if requested by the driver, but otherwise the driver determines the route he or she will take using his or her own personal GPS device or his or her personal knowledge. (Royal's 56.1 ¶ 7; Fletcher's 56.1 ¶ 7; Ex. U, Kaykov's 12/5/08 Dep. at 29; Ex. V, Kaykov's 1/8/09 Dep. at 116-17; Ex. Y, Oberlander Dep. at 57-58.) The computer does not provide any updates regarding construction and/or road closures. (Royal's 56.1 ¶ 7; Fletcher's 56.1 ¶ 7; Ex. V, Kaykov's 1/8/09 Dep. at 118-19; Ex. Y, Oberlander Dep. at 57-58.) In addition to the computer system, each franchisee's car, including Kaykov's, is equipped with a GPS device, which the Rulebook requires the drivers to supply. (Royal's 56.1 ¶ 7; Fletcher's 56.1 ¶ 7; Ex. Q, Rulebook at 3-4.)

Royal asserts that it does not provide any training for the franchisees, including training on how to use the computer system. (Royal's 56.1 ¶ 11; Ex. Y, Oberlander Dep. at 43.) However, Fletcher points to admissible evidence demonstrating that Royal requires its franchisees to attend and satisfactorily pass a training course on how to properly use and operate the computer system and that Royal retains the ability to compel the drivers to attend further training sessions if the driver "needs further training in [Royal's] sole but reasonable judgment." (Fletcher's 56.1 ¶ 11; Ex. O, Franchise Agreement at ¶¶ 20, 20(a).)

When the vehicle dispatched by Royal arrives at the destination, rather than paying the driver directly, the passenger gives the driver a voucher to verify his or her use of the car service. (Royal's 56.1 ¶ 6; Fletcher's 56.1 ¶ 6; Ex. Y, Oberlander Dep. at 6-8; Ex. O, Franchise Agreement ¶¶ 27-30.). The driver gives the voucher to Royal and Royal collects the amount indicated on the voucher from the account-holding company. (Royal's 56.1 ¶ 6; Fletcher's 56.1 ¶ 6; Ex. Y, Oberlander Dep. at 47-48; Ex. O, Franchise Agreement ¶¶ 27-30.) After the drivers submit the vouchers to Royal and Royal collects the money from the passengers, Royal then disburses payment to the drivers, and withholds a commission for itself. (Royal's 56.1 ¶ 6; Fletcher's 56.1 ¶ 6; Ex. Y, Oberlander Dep. at 8-13; Ex. U, Kaykov's 12/5/08 Dep. at 22-24.) The commission withheld by Royal ranges from 18-24% of the total fare collected, depending on how quickly the driver chooses to be paid.*fn7 (Royal's 56.1 ¶ 6; Fletcher's 56.1 ¶ 6; Ex. O, Franchise Agreement at ¶¶ 27-30.)

Drivers are responsible for servicing their own vehicles and repairing or replacing the vehicle if it breaks down or is otherwise damaged at the service stations of his or her choice. (Ex. O, Franchise Agreement ¶¶ 8, 9.)

D. The Franchise Agreement and the Rulebook As noted, supra, two documents govern the overall operation of Royal's dispatch service as well as the relationship between Royal and its franchisees: the Franchise Agreement and the Rulebook. (Royal's 56.1 ¶ 5; Fletcher's 56.1 ¶ 5; Ex. Q, Rulebook; Ex. O, Franchise Agreement.) The details of these two documents are as follows.

The Franchise Agreement defines the contractual relationship between Royal and its franchisees.*fn8 (Royal's 56.1 ¶ 5; Fletcher's 56.1 ¶ 5.) By means of the Franchise Agreement, the franchisee is purchasing a Royal franchise, which is, essentially, the right to receive clients from the franchisor-dispatcher, Royal, in the manner described in the Franchise Agreement. (Ex. O, Franchise Agreement ¶ 1.) In exchange for this right, the franchisee pays the franchisor a flat purchase price or "Franchise Fee," which, for Kaykov, was $20,000. (Id. ¶ 3.) A franchisee must also pay a one-time security deposit for the computer equipment, weekly dues of $50, and a commission for each job the franchisee completes. (Ex. O, Franchise Agreement ¶¶ 3, 5, 29.) These fees are subject to change at Royal's discretion. (Id. ¶ 5(i)(b).)

In addition, the Franchise Agreement includes details of the means of the business' operations (such as the payment scheme and computer systems as described, supra), sets forth Royal's requirements of its franchisees, the transferability and termination of the franchise, and the extent to which Royal oversees, directs, or controls its franchisees, including the creation of a Franchisees' Committee. (Royal's 56.1 ¶¶ 5, 7, 9; Fletcher's 56.1 ¶¶ 5, 7, 9; Ex. O, Franchise Agreement.)

Specifically, the Franchise Agreement requires each franchisee, including Kaykov, to own his or her own four-door Lincoln Town Car or Cadillac that is not more than three years old, to carry his or her own liability and worker's compensation insurance, and to maintain his or her own New York City Taxi and Limousine Commission License. (Royal's 56.1 ¶ 8; Fletcher's 56.1 ¶ 8; Ex. J, Department of Motor Vehicles Registration; Ex. K, Automobile Insurance Card; Ex. L, New York City Taxi and Limousine License; Ex. O, Franchise Agreement ¶¶ 7, 10, 11.) The Franchise Agreement further requires that franchisees list Royal as a party to be notified in case of insurance cancellation and reserves Royal's right to purchase the necessary insurance and to deduct the cost of that insurance from any money due to the franchisee. (Royal's 56.1 ¶ 8; Fletcher's 56.1 ¶ 8; Ex. O, Franchise Agreement ¶ 10.)

The Franchise Agreement is not exclusive, and franchisees, like Kaykov, retain the right to contract with other franchisors and/or chauffer private clients, "even where such clients were originally procured through Royal - with no future requirement for a commission to be paid to Royal." (Royal's 56.1 ¶ 9; see also Fletcher's 56.1 ¶ 9; Ex. Y, Oberlander Dep. at 15, 47.) In addition, franchisees may hire their own drivers or employees upon receipt of Royal's written approval, and the franchisee assumes full responsibility for the drivers' conduct and obligations to Royal. (Ex. O, Franchise Agreement ¶¶ 20-22.)

Under the Franchise Agreement, a franchisee has the right to divest, sell, transfer, or assign his franchise, subject to Royal's written consent, which "will not be "unreasonably withheld." (Royal's 56.1 ¶ 9; Fletcher's 56.1 ¶ 9; Ex. O, Franchise Agreement ¶ 32; Ex. Y, Oberlander Dep. at 25.) Either party may cancel or terminate the Franchise Agreement at will within the first 90 days after signing without penalty; if the franchisee voluntarily terminates the Franchise Agreement at any time thereafter or if Royal terminates the Franchise Agreement "for cause," the franchisor will not be reimbursed the original Franchise Fee. (Ex. O, Franchise Agreement ¶¶ 33-36.) The franchisee, however, will have the opportunity to sell, assign, or transfer the franchise within 120 days of the termination, regardless of the reason for the termination. (Id. ¶ 40.)

The Franchise Agreement contains a list of actions that could constitute a material breach of the Franchise Agreement, or "for cause" termination, by either the franchisee or franchisor. (Id. ¶¶ 35(a), 36.) Breaches by the franchisee include, inter alia, violating the law, failing to "maintain Franchisee's vehicle in excellent condition and offer professional courteous and efficient service," failing to maintain the required insurance or to indemnify Royal for any damages recovered from Royal by a third-party because of actions of the franchisee or the franchisee's employee, engaging in unsafe or reckless driving or other behavior which affects Royal's "reputation and goodwill." (Id. ¶¶ 22, 35(a).) The Franchise Agreement further contains a catchall provision that allows Royal to terminate the Franchise Agreement for cause due to a franchisee's breach of "any other term or condition of this Agreement, notwithstanding that such breach has not been particularized in the foregoing list." (Id. ¶ 35(a)(i)(B).) As will be discussed in further detail below, it is also a material breach of the Franchise Agreement if the Franchisees' Committee finds that a franchisee has committed a "serious breach" of the Rulebook. (Id. ¶ 35(a)(i).)

The range of possible material breaches by the franchisor is significantly more constrained, (see id. 36 (a material breach is considered "any breach by Franchisor under Sections 1 [installation of the computer equipment], 23 [franchisee must indemnify the franchisor], 24 [operation of dispatch system], 25 [jobs will be distributed among franchisees], and 28 [definition of voucher income] of this Agreement")), and there is no similar catchall provision applicable to franchisor breaches.

Finally, the Franchise Agreement describes the extent to which Royal oversees, directs, or controls its franchisees. The Franchise Agreement first states that a franchisee is "not deemed to be an employee or agent of [Royal]." (Id. ¶ 41.) It further provides, inter alia:

Franchisee shall at all times be free from the control or direction of the Franchisor in the operation of Franchisee's vehicle, and the Franchisor shall not supervise or direct the services to be performed by Franchisee; except as specifically set forth herein or in the Franchisor's [R]ulebook, which supervision or direction is set forth primarily for the benefit of all Franchisees. (Id.; see also Royal's 56.1 ¶ 5; Fletcher's 56.1 ¶ 5.)

The Franchise Agreement contemplates the existence of a Franchisees' Committee, "comprised of Franchisees, formed and elected by the Franchisees to protect the interests of all of the Franchisees," to develop, implement, and enforce the rules and regulations contained in a "Rulebook," which is described below.*fn9 (Ex. O, Franchise Agreement ¶ 18; Ex. Q, Rulebook at 1.) The Franchise Agreement specifically requires the franchisees "to abide by all the rules and regulations presently set forth in the Rulebook . . . or any reasonable rules and regulations which may hereinafter be promulgated and enforced by the Franchisees' Committee[]." (Ex. O, Franchise Agreement ¶ 18; 2/28/11 Tr. at 3 (Royal's counsel conceding that Royal requires the franchisees to comply with the Rulebook).)

The Rulebook, attached as Exhibit Q to Royal's Notice of Motion, is provided to all franchisees, including Kaykov. (Royal's 56.1 ¶ 5; Fletcher's 56.1 ¶ 5; Ex. Q, Rulebook.) The first page of the Rulebook welcomes the franchisee to "Royal Dispatch Services, Inc.," and continues, "[w]e are a group of luxury car franchisees," and "[t]his is our rules and regulations book. It developed [sic] by the Franchisees elected Membership Board and the franchisees['] committee." (Ex. Q, Rulebook at 1.) The Rulebook lays out the detailed aesthetic and operational rules with which the franchisees are required to comply, such as requirements for drivers' attire, conduct, attitude toward passengers and other drivers, vehicle cleanliness and inspections, and shift requirements. (See generally id.) For example, drivers are required to wear dress pants, a white shirt, a tie, a "black, dark gray, navy blue, or a dark suit," dark shoes and no hat and must be "clean, groomed and smell fresh every single day." (Id. at 2.) Drivers must get out of the car to assist passengers with luggage and, when dropping of passengers at night, must wait until the passenger is safely inside the house, office, or building before leaving. (Id.) The driver's car must be clean and carry a GPS, a telephone, a rate book, at least one voucher pack, a pen, and small clip board, among other items, and the driver's attire and their vehicles are subject to random inspection by Franchisees' Committee members at any time the franchisee's car is working. (Id. at 3-4, 12). A company magnetic sign with the driver's car number must be on the back panel of the vehicle's trunk when the driver is working. (Id. at 5.)

Further, although the Rulebook generally allows drivers to set their own schedule and hours, it requires each driver to work at least one shift per week between 4 A.M. and 9 A.M. (Royal's 56.1 ¶ 10; Fletcher's 56.1 ¶ 10; Ex. V, Kaykov's 1/8/09 Dep. at 122; Ex. Q, Rulebook at 10.) However, Royal argues that, although the weekly 4 A.M. and 9 A.M shift is required of franchises by the Rulebook, in practice, that requirement is not enforced. (See 2/28/11 Tr. at 8; Royal's 56.1 ¶ 10; Ex. Y, Oberlander Dep. at 43-45; Ex. V, Kaykov's 1/8/09 Dep. at 122.) The Rulebook also requires the franchisees' vehicles to be inspected every four months, although the parties dispute whether the inspections are performed by franchisees independent of Royal's control or whether Royal selected the franchisees to perform the inspections. (Royal's 56.1 ¶ 11; Fletcher's 56.1 ¶ 11.)

Moreover, the Rulebook provides procedures that must be followed before sanctions may be imposed on the franchisees in the event that a driver violates any of the rules contained in the Rulebook. (See Ex. Q, Rulebook at 24-26.) The procedures include a hearing, judged by a Franchisees' Committee officer, the opportunity to present witnesses, and an option to appeal to the Franchisees' Committee.*fn10 (Id.) The Franchisees' Committee may impose sanctions, such as citations, warnings, or fines. (Id. at 24-32; Fletcher's 56.1 ¶ 35.)

According to the Franchise Agreement, Royal does not determine whether sanctions should be imposed or issue sanctions, unless the franchisee commits a material breach of the Franchise Agreement, in which case Royal may unilaterally terminate the franchise. (Ex. O, Franchise Agreement ¶ 35(a)(i).) However, in the event the Franchisees' Committee imposes a fine, the Franchise Agreement provides that Royal may withhold an unpaid fine from the drivers' vouchers, and turn the fine over to the "Executive Driver Sunshine Fund, Inc.," a franchisee fund set up by the Franchisees' Committee for the benefit of franchisees. (Id.) Furthermore, if, after following the review procedures outlined in the Rulebook, the Franchisees' Committee determines that the franchisee "has committed a serious breach of the Franchisees' Committee rules and regulations," then the Franchisees' Committee may recommend termination of the franchisee to Royal and, based on that recommendation, Royal has the option of terminating an individual's Franchise Agreement on the ground that the franchisee "committed a serious breach of the Franchisees['] Committee rules and regulations." (Id.)

Importantly, the parties dispute whether Royal or the Franchisees' Committee develops, implements, and enforces the Rulebook. (Royal's 56.1 ¶ 5; Fletcher's 56.1 ¶ 5.) Royal asserts that the evidence in the record establishes that the Franchisees' Committee creates the Rulebook and points to the deposition of Royal's Franchisee Liaison, Amnon Oberlander, and to an affidavit from Arsen Aulov, a franchisee and a Franchisees' Committee member, in support of this assertion. (Royal's 56.1 ¶ 5; Ex. Y, Oberlander Dep. at 29-30, 34; Ex. Z, Affidavit of Arsen Aulov.) Fletcher, however, argues that Royal created the Rulebook and points to Kaykov's statement in his deposition that Royal may have created the Rulebook. (Fletcher's 56.1 ¶ 5; Ex. V, Kaykov's 1/8/09 Dep. at 159 ("Q: Do you know if the drivers themselves put together [the Rulebook] instead of the company? A: responded, "I don't know that. I think the company did.")

Further, the parties dispute whether the incorporation of the Rulebook into the Franchise Agreement is indicative of Royal's retention of control over its franchisees, or whether the Rulebook, although referenced in the Franchise Agreement, has no bearing on Royal's relationship with its franchisees. In fact, both Royal and Fletcher point to different parts of the same sentence in paragraph 41 of the Franchise Agreement to support of their respective arguments. (Compare Royal's 56.1 ¶ 5 (emphasizing that the "[f]ranchisee shall at all times be free from the control or direction of the franchisor in the operation of franchisee's vehicle, and the franchisor shall not supervise or direct the services to be performed by franchisee . . ." with Fletcher's 56.1 ¶ 5 (emphasizing the qualification of control by the Rulebook, specifically, that "franchisor shall not supervise or direct the services to be performed by franchisee; except as specifically set forth herein or in the franchisor's [R]ulebook".)

II. Fletcher's Cross-Claims

On December 8, 2008, Fletcher answered the Second

Amended Complaint and alleged two cross-claims against Royal. (Fletcher Answer ¶¶ 30-35.) Fletcher's first cross-claim, which is entitled "Common Law Indemnification," alleges that if the plaintiffs recover against Fletcher for damages which are due in whole or in part to the acts of Royal or its agents, servants, or employees, then Royal has an obligation to "indemnify" Fletcher in full or part for any judgment against Fletcher. (Id. ¶¶ 30-32.) Although Fletcher's counsel conceded at the oral argument that, based on the relationship between the parties, Fletcher is ultimately unlikely to be able to recover on a theory of indemnification, as opposed to contribution, he declined to abandon his indemnification cross-claim, and declined to make further submissions to the court. (2/28/11 Tr. at 35.) For the reasons set forth below, the court grants Royal's motion for summary judgment on Fletcher's cross-claim for common law indemnification, albeit on different grounds than those asserted by Royal.

Fletcher's second cross-claim, which is entitled "Common Law Negligence," in fact, seeks contribution from Royal if the plaintiffs recover against Fletcher under the same circumstances as set forth in Fletcher's first cross-claim. (See Fletcher's Answer ¶ 34 ("[I]f plaintiff(s) should recover judgment against [Fletcher], [Royal] shall be liable to [Fletcher] on the basis of apportionment of responsibility for the alleged occurrence and [Fletcher] is entitled to contribution . . . .").) Based on the plain language of the second cross-claim, as well as the fact that both parties refer to these cross-claims as ones for "indemnification and/or contribution" throughout their papers, the court interprets the second cross-claim to be one for contribution, not negligence. Indeed, Fletcher admitted in its 56.1 Statement that the only remaining claims "against Royal are the cross claims for common law indemnity/contribution asserted by [Fletcher]" and Fletcher's counsel further stated at the oral argument that his "first and foremost argument is [a] cross-claim on contribution vicarious liability." (2/28/11 Tr. at 34; Fletcher's 56.1 ¶ 15; see also Royal's 56.1 ¶ 15.)

To the extent Fletcher intended to pursue an independent common law negligence cross-claim against Royal, the court finds the so-called negligence cross-claim to be insufficiently pleaded on its face and devoid of any legal or factual support. Indeed, at oral argument, Fletcher's counsel, unable to articulate a clear factual or legal bases supporting a negligence cross-claim against Royal, acknowledged that no facts supporting a direct negligence theory against Royal arose in discovery, that the claim was not "strong," that he had not briefed the issue, and he subsequently declined the opportunity to make further submissions to the court. (See 2/28/11 Tr. at 34-35 (The court: "Is there a duty by rule . . . that you found in discovery and just neglected to bring to my attention? Fletcher's counsel: "I don't believe there is, Your Honor, just by the rule book itself. That's what I'm relying on. The GPS, perhaps should have -- ...


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