ACE AMERICAN INS. CO. v. KEYSTONE CONSTRUCTION & MAINTENANCE SERVICES, INC.
United States District Court, D. Connecticut.
September 27, 2012.
Sprague does allege that in the Agreement, "Pike promised to Sprague that Pike `shall have responsibility for and assume any liability with respect to said Gas after its delivery to Buyer at the Delivery Point(s).'" Id. at ¶ 8. The terms of the contract, however, do not bind Pike, but instead state that "Buyer shall have responsibility for and any assume any liability with respect to said Gas after its delivery to Buyer. . . ." Sprague's Mot. to Serve, Ex. B at ¶ 8.1. There is thus no indication that the contract was entered into by both Pike and Kleen, or that Pike was acting as anything other than an agent. There are no grounds for Pike's liability under the contract, and the motion for leave to file is therefore denied.
D. Algonquin's Motion to Dismiss
Algonquin, which delivered the natural gas to the Kleen Plant, moves to dismiss all claims against it.
1. Strict Liability Claim
In Connecticut, a defendant who engages in an ultrahazardous activity is strictly liable for any injuries that result from that activity. "`[A] plaintiff is not required to show that his loss was caused by the defendant's negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant's loss.'" Collins v. Olin Corp., 418 F.Supp.2d 34, 47 (D. Conn. 2006) (quoting Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482 (1991)). An activity is ultrahazardous if it is "`an instrumentality capable of producing harm; circumstances and conditions [exist] in its use which, irrespective of a lawful purpose or due care, involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others; and a causal relation [exists] between the activity and the injury for which damages are claimed.'" Id. (quoting Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85 (1961). Traditionally, strict liability has been applied in cases involving explosions, and Algonquin does not contest that a gas blow is an ultrahazardous activity.
Algonquin argues that the strict liability claim should be dismissed because the plaintiffs have failed to allege that Algonquin engaged in an ultrahazardous activity. During oral argument, the plaintiffs conceded that there was no basis to believe that Algonquin did anything other than transport gas through a gas pipeline. Algonquin was not involved in the gas blow itself, and thus did not engage in the ultrahazardous activity. Accordingly, Algonquin's motion to dismiss the strict liability claim is granted.
2. Negligence and Recklessness Claims