Opinion
No. CV06-5002130S
July 13, 2007
MEMORANDUM RE MOTION TO STRIKE #109 ISSUE AND SUBMISSION
The issue is whether the court should grant the apportionment defendant's motion to strike the plaintiff's direct complaint against it on the grounds that it is derived from an improperly filed apportionment complaint and it does not properly allege a product liability claim pursuant to General Statutes § 52-572m.
FACTUAL AND PROCEDURAL HISTORY
On July 19, 2006, the plaintiff, Damien Caruso, filed a two-count complaint alleging claims for negligence and product liability against the defendant, Willow's Kawasaki, Inc. The plaintiff alleges the following facts in the complaint. The plaintiff purchased a Yamaha Raptor 660 all terrain vehicle (vehicle) from Willow's Kawasaki and later returned it to the defendant's shop for repairs. When the plaintiff went to the defendant's shop to retrieve the vehicle, Willow's Kawasaki instructed him to drive it onto his truck by using a pair of ramps that the defendant had set up. As the plaintiff was driving the vehicle up the ramps, the throttle became stuck, which caused the vehicle to fall off the ramps, damaging the plaintiff's truck and injuring him.
On December 5, 2006, Willow's Kawasaki filed a two-count apportionment complaint against the apportionment defendant, the Yamaha Motor Corporation (Yamaha), which, it alleges, manufactured, distributed and/or sold the plaintiff's vehicle and is liable to Willow's Kawasaki for the plaintiff's injuries. On February 5, 2007, Yamaha filed a motion to strike the apportionment complaint on the ground that it alleges claims that are prohibited by statute. It is not apparent that the motion has been heard by the court.
On February 26, 2007, the plaintiff filed a direct one-count complaint against Yamaha pursuant to General Statutes § 52-102b(a). Therein, the plaintiff repeats his allegations of negligence against Willow's Kawasaki and adds that his injuries and damages were caused by Yamaha's negligence and carelessness in that the throttle on his vehicle was not functioning properly at the time of the accident. On April 23, 2007, Yamaha filed a motion to strike the direct complaint on the ground that it is premised on Willow's Kawasaki's improperly filed apportionment complaint, and that the plaintiff should have brought his claim against Yamaha as a product liability claim. Neither the plaintiff nor Willow's Kawasaki has opposed either of Yamaha's two motions to strike. The motion was on the short calendar on May 14, 2007.
DISCUSSION
"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). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
Yamaha first argues that the viability of the plaintiff's direct complaint is dependent upon the viability of Willow's Kawasaki's apportionment complaint. It contends that in both counts of the apportionment complaint, Willow's Kawasaki alleges product liability claims, pursuant to the Product Liability Act (act), General Statutes §§ 52-572m et seq., and that, under General Statutes § 52-572h(o), a party that is a defendant to a negligence claim cannot bring a product liability claim against a third party by way of an apportionment complaint. Yamaha contends that, as the apportionment complaint was improper, it is not a legally cognizable party, and the plaintiff's direct complaint, brought pursuant to § 52-102b(d) must be stricken.
General Statutes § 52-572h(o) provides in relevant part: "[T]here shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to . . . strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence . . ."
Section 52-102b(d) provides: "Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint." In Carpenter v. Law Offices of Dressler Associates, LLC, 85 Conn.App. 655, 660-61, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004), the court found that a direct claim filed by a plaintiff against an apportionment defendant pursuant to § 52-102b(d) while the apportionment complaint is pending may stand even though that underlying apportionment complaint is later stricken. The court stated that, while the apportionment complaint was "still in place, there was no reason that the plaintiff could not `plead over' pursuant to § 52-102b(d) and assert direct claims against the apportionment defendants." Id., 661. See also Taricani v. Cary's Real, LLC, Superior Court, judicial district of New Britain, Docket No. CV 04 5000087 (January 23, 2007, Shapiro, J.) (42 Conn. L. Rptr. 817, 818) (denying summary judgment as to direct complaint while granting summary judgment as to apportionment complaint); New Canaan v. Brooks Laboratories, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4006797 (August 7, 2006, Tobin, J.) (41 Conn. L. Rptr. 794) (interpreting Carpenter to mean that the "lack of viability of the apportionment complaint is not fatal to a direct claim asserted by the plaintiff").
Yamaha cites Currier v. Fieldstone Village Condominium Ass'n, Inc., Superior Court, judicial district of Tolland, Docket No. CV 99 0069258 (September 13, 2000, Sferrazza, J.) (28 Conn. L. Rptr. 90), for the proposition that "the viability of a complaint under § 52-102b(d) is dependent upon the validity of the apportionment complaint under § 52-102b(a)." This assertion, however, is invalid, as Currier was effectively overruled by the Appellate Court's decision in Carpenter. Carpenter v. Law Offices of Dressler Associates, LLC, supra, 85 Conn.App. 660-61.
General Statutes § 52-102b(a) provides, in relevant part: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability."
In the present case, the court has not yet decided upon the viability of Willow's Kawasaki's apportionment complaint. Even if the court were to later come to the conclusion that Willow's Kawasaki's apportionment complaint is not viable, in accordance with the holding in Carpenter, such a conclusion would not require this court to strike the plaintiff's direct complaint against Yamaha, which was filed pursuant to § 52-102b(d) while the apportionment complaint was still pending. Accordingly, the court does not grant the motion to strike based upon this reasoning.
Yamaha also argues that the plaintiff's direct complaint should be stricken because, although he purports to allege a claim in negligence, his allegations actually pertain to Yamaha's conduct as a product seller, and thus, the claim is barred by the exclusivity provision of the act found in General Statutes § 52-572n(a). Section 52-572n(a) provides, in relevant part: "A product liability claim as provided in [section] 52-572m . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence . . . for harm caused by a product." This provision "provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000). Thus, a party may not avoid the exclusivity provision of the product liability act merely "by casting his pleading in common-law terms . . ." Id. Accordingly, if the plaintiff's claim amounts to a product liability claim against a product seller, it must be brought pursuant to the act, as a plaintiff "cannot bring a common law cause of action for a claim within the scope of the [product liability] statute." Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986).
General Statutes § 52-572m(b) defines a product liability claim as including "all claims or actions brought for personal injury, death or property damages caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort . . . [or] negligence . . ." Section 52-572m(a) provides, in relevant part: "`Product seller' means any . . . entity . . . who is engaged in the business of selling such products whether the sale is for . . . use or consumption."
The court in Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 806, contrasted negligence claims from product liability claims, stating that the latter "do not rest on notions of fault. They rest on more generalized notions of allocation of the plaintiff's loss to the product seller who puts a defective product into the stream of commerce, and therefore ordinarily is able to spread the loss by price adjustments." Thus, "[t]he doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce, not with the specific conduct of the defendant." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 195, 700 A.2d 38 (1997).
In the present case, in his direct complaint against Yamaha, the plaintiff makes numerous allegations regarding the conduct of Willow's Kawasaki, and then adds a sentence alleging that his injuries and damages were "caused by the negligence and carelessness of Yamaha . . . in that [the] throttle on the Yamaha ATV did not properly function on the date of the accident." The plaintiff does not, however, allege any specific conduct by Yamaha that would amount to a cause of action for negligence. Instead, the plaintiff's allegations focus on the events that occurred at Willow's Kawasaki's shop as well as on the condition of the vehicle's throttle. It is apparent that his claim against Yamaha is premised on its status as an upstream seller of the vehicle. Nothing in the complaint suggests that Yamaha's relationship to the plaintiff is anything other than that of a product seller pursuant to the act.
The plaintiff's allegations against Yamaha essentially amount to a claim for product liability, as a consequence of which, his exclusive remedy against Yamaha is through a product liability claim pursuant to the act. The plaintiff's direct complaint is legally insufficient to invoke the act, however, as it is well established that "[t]o maintain a product liability action under § 52-572m et seq., the plaintiff must establish and prove, inter alia, that . . . the defendant was engaged in the business of selling the product . . . [and] the defect existed at the time of the sale . . ." (Internal quotation marks omitted.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). The plaintiff does not mention the Product Liability Act at all, and does not allege that Yamaha "was engaged in the business of selling the product . . . [or that] the defect existed at the time of the sale . . ." Id.
Therefore, the complaint does not state a claim upon which relief can be granted. Accordingly, the court grants Yamaha's motion to strike the plaintiff's direct complaint.