Summary
granting motion to strike because, while claims for commercial loss "are specifically exempted from the CPLA," Plaintiffs’ claims "for repair and replacement ... may only be brought under the CPLA."
Summary of this case from Collazo v. NutribulletOpinion
CV176072131
12-27-2018
DAVENPORT ASSOCIATES, INC. et al. v. The L. SUZIO CONCRETE COMPANY, INC. et al.
UNPUBLISHED OPINION
OPINION
James W. Abrams, Judge
By Motion dated November 12, 2007, the defendants seek to strike Counts One and Two of the plaintiffs’ Revised Complaint. The plaintiffs filed a Memorandum in Opposition dated December 11, 2017.
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court takes "the facts to be those alleged in the complaint ... and ... construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747 (2012).
This case involves the failure of poured concrete at a warehouse facility. The defendants are the supplier and pourer of the concrete, respectively. In their Revised Complaint, the plaintiffs’ claim assert claims for breach of contract and negligence and seek recovery for repair and replacement of the allegedly defective floor as part of a general claim for damages. The issue before the court is whether these claims should be stricken pursuant to the exclusivity provision contained in the Connecticut Products Liability Act (CPLA), § 52-572m et seq. The plaintiffs correctly argue that claims for commercial loss, as opposed to repair and replacement, are specifically exempted from the CPLA: "As between commercial parties, commercial loss caused by a product is not harm and may not be recovered by a commercial claimant in a product liability claim. An action for commercial loss caused by a product may be brought only under, and shall be governed by, title 42a, the Uniform Commercial Code." Conn. Gen. Stat. § 52-572n(c). While the court is cognizant of its duty to construe the plaintiffs’ Revised Complaint in their favor, New London County Mutual Ins. Co., supra, it finds itself convinced by the defendants’ argument that the Revised Complaint contains no indication that the plaintiffs are seeking anything but damages for repair and replacement; claims which may only be brought under the CPLA. Something more is required.
The Motion to Strike is granted.