Opinion
No. HHB CV08 6001451
January 20, 2011
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The plaintiffs bring this negligence action against the defendants. The claim is that the minor plaintiff, two-year-old Alison Chen, was injured while on the premises of the defendants when a step stool fell over on her, severing one of her fingers. In addition to contesting the allegations of negligence, the defendants have filed a third-party complaint against Birmingham Restaurant Supply, Inc. ("Bresco"). In the First Count, the third-party plaintiffs allege that they acquired the step stool from Bresco, that Bresco designed and manufactured the step stool and placed it in the stream of commerce, and that the step stool was unreasonably dangerous, defective, and unsafe. They claim damages under the Connecticut Products Liability Act ("CPLA"), Conn. Gen. Stat. § 52-572m et seq. for any losses they suffer as a result of the defective product. In the Second Count, the third-party plaintiffs allege that they and Bresco were parties to an indemnification agreement regarding the step stool, so that they are entitled to contractual indemnification for any losses they suffer. In the Third Count, they claim a breach of the indemnification contract. In the Fourth Count, they make a claim for common-law indemnification. In the Fifth Count, they claim a breach of the warranty of merchantability. In the Sixth Count, they claim a breach of the implied warranty of fitness for a particular purpose.
The third-party defendant Bresco moves to strike the Fourth Count for common-law indemnification, which Brescoe construes as making a claim for commercial loss under the CPLA. The third-party plaintiffs assert that the definition or doctrine of commercial loss is not implicated by their indemnification claim. The court agrees with the third-party plaintiffs.
Although courts in Connecticut and elsewhere have struggled to define the boundaries of the commercial loss exclusion under the products liability act — Conn. Gen. Stat. § 52-572n(c) in the CPLA — case law in Connecticut holds that contribution against a third-party defendant is permitted under CPLA when the claim is based on common-law indemnification. In Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989), a case indistinguishable in its material facts from the instant case, the Connecticut Supreme Court held that it was error to strike counts sounding in indemnification against a third-party defendant in a products liability case. The Court analyzed Conn. Gen. Stats. §§ 52-102a, which generally permits the filing of a third-party complaint, and 52-577a(b) which specifically permits the filing of a third-party complaint in a products liability case, and concluded that common-law indemnification continues as a viable cause of action in the context of product liability claims. Id., 198.
While it is true that the court did not focus on the definition of "commercial loss" in its analysis in Malerba, in a later case, the Court explicitly rejected the view that the commercial loss language of the Act prohibited indemnification claims. Sylvan R. Shemitz Designs, Inc. v. Newark Corporation, 291 Conn. 224, 235-36, 967 A.2d 1188 (2009).
The holding in Malerba controls the outcome of this motion. The Motion to Strike is denied.