Opinion
CV146007770S
08-02-2016
Kevin Upton et al. v. Water's Edge Campground, Inc. dba Water's Edge et al
UNPUBLISHED OPINION
Filed August 2, 2016
MEMORANDUM OF DECISION RE MOTION TO STRIKE #178 AND OBJECTION TO REQUEST TO AMEND #184
John F. Cronan, Judge.
The foregoing, having been considered by the Court, is hereby:
ORDER: GRANTED
The motion to strike (#178) counts four through six of the plaintiff's second amended complaint is granted. Counts four and five of the second amended complaint are stricken based upon agreement of the parties, as presented to the court at the short calendar on May 2, 2016. See General Statutes § 52-572m et seq., the Connecticut Product Liability Act (CPLA). Count six is legally insufficient to state a cognizable claim of recklessness because the plaintiff's exclusive remedy is limited to CPLA. Accordingly, since counts four and six are legally insufficient, the corresponding request for punitive damages in the plaintiff's prayer for relief is derivative, and therefore must also be stricken. See Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011); see also Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769, 773 (2003) (concluding exclusivity provision makes product liability act exclusive means by which party may secure remedy for injury caused by defective product); Vitanza v. Upjohn Co., 257 Conn. 365, 380-81, 778 A.2d 829 (2001) (stating important purpose of CPLA is to eliminate complex pleading provided at common law); Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000) (stating CPLA provides exclusive remedy for claim falling within its scope, thereby denying claimant option of bringing common-law causes of action for same claim).
Section 52-572n provides: " (a) A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." Both parties agreed that the CPLA is the exclusive remedy for breach of warranty claims for harm caused by a product.
The court is aware that the plaintiff has submitted a request for leave to file a third amended complaint, on March 8, 2016, in which the plaintiff has deleted counts four through six of the second amended complaint, but has reincorporated paragraphs twenty-two, twenty-three, and twenty-four from count six into count three of the third amended complaint.
Although there is contrary authority, the court agrees with the majority position in relevant Superior Court decisions that a plaintiff may not foreshorten the pleading procedures set forth in Practice Book § § 10-6, 10-8, and 10-44 that give a party the right to replead within fifteen days of the granting of a motion to strike or avoid the court ruling on legal sufficiency. See Practice Book § § 10-6, 10-8, and 10-44; see also Metromedia Energy, Inc. v. Mansei, Inc., Superior Court, judicial district of New Haven, Docket No. CV-13-6041399-S, (November 3, 2014, Wilson, J.); Haj v. Your Chauffeur Limousine Service, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-11-6010832-S, KAVITA (February 6, 2012, Jennings, Jr., J.T.R.) (53 Conn.L.Rptr. 375); Flores v. Viveros-Velazquez, Superior Court, judicial district of Windham, Docket No. 063971, (November 21, 2000, Foley, J.); Dilettante Enterprises, Inc. v. Metro Realty Group, Superior Court, judicial district of New Britain, Docket No. CV-91-0445207-S, KAVITA (February 27, 1992, Sheldon, J.) (6 Conn.L.Rptr. 137, 138).
Therefore, the defendant's objection to the plaintiff's request to amend is sustained without prejudice. The plaintiff shall be afforded the opportunity to amend count three of his second amended complaint and replead his legal theories within the framework of the Connecticut Products Liability Act.