Opinion
No. CV04 0085523S
September 13, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#119)
Before the court is the defendant, General Electric Company's (GE) motion to strike count twenty-five and count twenty-nine of the plaintiff's complaint, as well as the claim for attorneys fees in the prayer for relief on the ground that they fail to state a claim upon which relief can be granted.
On May 19, 2004, the plaintiff, Pro Con Incorporated, filed a thirty-three-count complaint against nine defendants. This action arises out of a contract entered into by the plaintiff for the construction of a Courtyard Hotel in Orange, Connecticut. The underlying incident arises out of alleged "water infiltration and resultant property damage" at the Courtyard Hotel. The plaintiff entered into a settlement agreement with the owner of the Courtyard Hotel for these claims, and obtained a release on January 22, 2004.
The plaintiff alleges, inter alia, the following facts as to the defendant GE. GE is a business unit of General Electric Company with a principal place of business in Louisville, Kentucky, and regularly conducts business in Connecticut. The plaintiff and another defendant entered into a contract for the design and installation of HVAC systems that included the selection and installation of packaged thermal air conditioning units (PTAC) at the Courtyard Hotel. GE is the "merchant" of PTAC. GE warranted that the products it sold were free of material defects, merchantable and fit for the purpose used. GE breached its implied and express warranties, and the Connecticut Product Liability Act (CPLA), General Statutes § 52-572m et seq. As a result of GE's breaches, the plaintiff has sustained damages.
On July 28, 2004, GE filed a motion to strike counts twenty-five and twenty-nine of the plaintiff's complaint, as well as the claim for attorneys fees in the prayer for relief supported by a memorandum of law. The plaintiff filed a memorandum of law in opposition to GE's motion to strike on August 19, 2004. Thereafter, GE filed a reply memorandum of law. On August 30, 2004, the court, Shluger, J., heard oral argument.
The court notes that while the plaintiff filed a memorandum of law, it failed to appear for oral argument.
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book 10-39(a); see also Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [p1aintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
GE moves to strike count twenty-five of the plaintiff's complaint on the ground that the claims for breach of warranty are barred by the exclusive remedy provision of the CPLA. GE also argues that the breach of warranty claims should be stricken because there was no privity of contract between the plaintiff and GE.
As a general rule, "in order to sustain an action for breach of express or implied warranty there has to be evidence of a contract between the parties, for without a contract there [can] be no warranty." Hamon v. Digliani, 148 Conn. 710, 712, 174 A.2d 294 (1961). Where a product is not sold to a plaintiff, there is no privity of contract. Garthwait v. Burgio, 153 Conn. 284, 286, 216 A.2d 189 (1965).
In its opposition memorandum, the plaintiff acknowledges that it does not allege privity of contract with GE, but, nonetheless, argues that privity is not required in order to recover on a warranty claim. In support of its position, the plaintiff relies on General Statutes § 42a-2-318 and two Connecticut federal cases, Utica Mutual Insurance Co. v. Denwat Corp., 778 F.Sup. 592 (D.Conn. 1991) and Quadrini v. Sikorsky Aircraft Division, 505 F.Sup. 1049 (D.Conn. 1981).
General Statutes § 42a-2-318 sets forth limited exceptions to the privity requirement by extending the coverage of a seller's warranty to certain natural persons who are not in privity with the seller. Section 42a-2-318 provides that "[t]his section is neutral with respect to case law or statutory law extending warranties for personal injuries to other persons." The plaintiff relies on Comment 3 to § 42a-2-318 to argue that although it is not one of the types of parties specifically enumerated in the statute, the plaintiff is not precluded from recovery. Comment 3 of § 42a-2-318 stated that "the section . . . is neutral and is not intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his buyer who resells, extend to other persons in the distributive chain." Mindful of these comments, the court nonetheless finds that the plaintiff is neither a "natural" person as used in the statute nor seeks personal injury damages that would entitle it to an extension of coverage under § 42a-2-318.
General Statutes § 42a-2-318 provides, in pertinent part, that "[a] seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods . . ."
The plaintiff recognizes that Connecticut cases have required privity of contract in order to assert a breach of warranty claim. Notwithstanding those cases, the plaintiff argues that the "more persuasive line of authority" is set forth in the federal cases of Utica Mutual Insurance Co. v. Denwat Corp., supra, 778 F.Sup. 592, and Quadrini v. Sikorsky Aircraft Division, supra, 505 F.Sup. 1049. The Utica and Quadrini cases, however, are distinguishable from the present case because they were conditioned on a finding that no alternative remedies were available to the plaintiff. See Utica Mutual Insurance Co. v. Denwat Corp., supra, 778 F.Sup. 592 (court allowed breach of warranty claim for commercial losses despite lack of privity); Quadrini v. Sikorsky Aircraft Division, supra, 505 F.Sup. 1049 (court allowed warranty claim seeking damages for personal injuries despite lack of privity). While there is a dearth of caselaw addressing this particular issue, several Connecticut courts have distinguished Utica and Quadrini. See Resnick v. Sikorsky Aircraft Division of United Technologies Corp., 660 F.Sup. 415 (D.Conn. 1987); Ferguson v. Sturm, Ruger Co., Inc., 524 F.Sup. 1042 (D.Conn. 1981); United Technologies Corp. v. Saren Engineering, Superior Court, judicial district of Waterbury, Docket No. CV 020173135 (September 25, 2002, McWeeny, J.) ( 33 Conn. L. Rptr. 127); The Halsam Co. v. Everglade, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 94 0141045 (August 13, 1996, Arnold, J.).
Specifically, the plaintiff cites the following cases: Ferguson v. Sturm, Ruger Co., Inc., 524 F.Sup. 1042 (D.Conn. 1981); United Technologies Corp. v. Saren Engineering, Superior Court, judicial district of Waterbury, Docket No. CV 02 0173135 (September 25, 2002, McWeeny, J.) ( 33 Conn. L. Rptr. 127); Bosek v. Valley Transit District, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 92039674 (December 10, 1993, Rush, J.) ( 10 Conn. L. Rptr. 503, 9 C.S.C.R. 65).
Moreover, the United States Supreme Court has made clear that certain expectations arise from the Uniform Commercial Code with respect to the limitations of liability in warranty actions. "A warranty action . . . has a built-in limitation on liability . . . The limitation in a contract action comes with the agreement of the parties and the requirement that consequential damages, such as lost profits, be a foreseeable result of the breach . . . [W]here the loss is purely economic, the limitation derives from the requirements of foreseeability and of privity . . . Permitting recovery for all foreseeable claims for purely economic loss could make a manufacturer liable for vast sums. It would be difficult for a manufacturer to take into account the expectations of persons downstream who may encounter its product." (Citations omitted.) East River Steamship Corp. v. Transamerican Delaval, 476 U.S. 858, 874, CT Page 13898 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).
Here, while the plaintiff claims that it "may have limited recourse" against GE, the complaint contains a count in contribution against all the defendants. In light of the above, the defendant's motion to strike count twenty-five of the plaintiff's complaint is granted.
GE also moves to strike count twenty-nine that states a claim under CPLA because CPLA excludes claims for commercial loss between commercial parties concerning reimbursement for commercial property damage. The plaintiff appears to agree with GE, stating that count twenty-nine is "subject to being stricken [because] commercial loss caused by a product is not harm and may not be recovered by a commercial claimant in a product liability claim." The plaintiff has not briefed this issue beyond two sentences. Thus, because the plaintiff does not oppose the motion to strike count twenty-nine, the motion to strike is granted.
Lastly, GE moves to strike the plaintiff's claim for attorneys fees as to GE because there is no contractual or statutory basis for such relief against GE. The plaintiff claims that GE should have filed a request to revise the prayer of relief for attorneys fees rather than a motion to strike because the granting of the motion to strike would remove the request for attorneys fees with respect to all defendants.
"Connecticut case law follows the general rule, frequently referred to as the American Rule, that attorneys fees are not allowed to the prevailing party as an element of damages unless such recovery is allowed by statute or contract." (Internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 418, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002). Because the court has stricken counts twenty-five and twenty-nine against GE, the only remaining count subject to this relief is count thirty-three, which is a claim for contribution. In this count, the plaintiff has alleged neither the existence of a contract nor a statute which would authorize the award of attorneys fees. Accordingly, the court strikes the prayer for relief seeking attorneys fees as to GE only.
The court therefore grants the defendant's motion to strike counts twenty-five and twenty-nine, and the prayer for relief seeking attorneys fees as to GE.
The Court
Shluger, J.