Opinion
No. X04-CV-02-0127361S
December 19, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE THIRD-PARTY COMPLAINT
1. Facts and Procedural History
The plaintiff, Laura Evans ("Evans"), commenced this product liability action against four defendants, Yamaha Motor Corporation ("Yamaha"), Skeeter Products, Inc. ("Skeeter"), Teleflex Corporation ("Teleflex") and Reynolds Garage Marine, Inc. ("Reynolds Garage"), for injuries allegedly sustained on May 15, 2000, when the steering wheel on a fishing boat in which she was a passenger came off, causing the boat to turn hard to the right.
By motion dated September 3, 2002, Skeeter moved to implead Uflex USA, Inc. ("Uflex") as a third-party defendant, claiming Uflex may be liable for all or part of the plaintiff's claim under the Connecticut Product Liability Act ("PLA"). Its motion was granted by the court on September 17, 2002, and Skeeter's third-party complaint dated September 20, 2002, seeking indemnification from Uflex for all sums for which Skeeter may be held liable to the plaintiff, was filed with the court on October 1, 2002. By amended complaint dated November 11, 2002 Evans added a claim against the third-party defendant Uflex pursuant to Section 52-102a of the General Statutes.
By motion dated December 20, 2002, Uflex moves to strike the third-party complaint of Skeeter in its entirety, claiming that common-law indemnification between co-defendants is legally insufficient under the PLA. As additional grounds for striking the third-party complaint, Uflex claims that Skeeter failed to allege the necessary elements for a cause of action based on common-law indemnification. A hearing on the subject motion was held on October 28, 2003. For the reasons set forth in detail below, the court grants the motion to strike.
2. Legal Standard
"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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, 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). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
3. Discussion
Uflex's basic claim is that, because the plaintiff amended her complaint to assert direct claims under the PLA against Skeeter and Uflex, common-law indemnification is not a viable cause of action by one first-party defendant against another first-party defendant. Uflex cites Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 535 A.2d 357 (1988), in support of its position. In its opposition to Uflex's motion, Skeeter claims that the subsequently decided case of Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989), is controlling law under the circumstances of this case.
In Kyrtatas, our Supreme Court set aside the judgment for Stop Shop, Inc. on its cross complaint for indemnification from the defendant Shield Packaging, Inc. The Court concluded that common-law indemnity principles do not apply in the context of a statutory product liability action. As in the present case, no contractual indemnity claims were presented. In holding that the PLA abrogated common-law indemnification principles in this area, the Court noted in footnote 2 of its decision:
Our holding applies to situations in which all potential defendants are parties to the suit. In such a situation, a jury's findings concerning the relative responsibility of the parties are conclusive, and are entitled to res judicata status. On some occasions, a plaintiff may not sue all potential defendants. A defendant may implead a third party who may be liable for all or part of the plaintiff's claim against him. Practice Book 117. In this case we need not consider the effect of a jury's findings concerning comparative responsibility in a subsequent indemnification suit against a joint tortfeasor who had not been made a party in the suit in which the verdict and findings of the jury were rendered.
Id., 702 n. 2.
One year later, the Malerba case was decided by our Supreme Court. In Malerba, the plaintiff brought an action against Cessna Aircraft Co. for personal injuries sustained in an airplane accident. Cessna, after its motion to implead was granted, filed a third-party complaint against the aircraft's owner and the aircraft's mechanic seeking recovery based upon common-law principles of indemnification. The plaintiff did not add a claim against the third-party defendants, as in the present case. Instead, the plaintiff moved to strike the third-party complaint and the trial court granted the motion, concluding that common-law principles of indemnification were abrogated by virtue of the PLA.
The Malerba Court reversed the trial court. "Based on the implicit language of the foregoing statutes, we conclude that common law indemnification continues as a viable cause of action in the context of product liability claims and that the comparative responsibility principles that serve as its foundation do not bar a later determination of liability as between an indemnitee and an indemnitor." Id., 198-99. In footnote 9 of the Malerba decision, however, the Court stated: "We note that our holding in Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 702 n. 2, 535 A.2d 357 (1988), was specifically limited to its factual circumstances which are different from the procedural posture in which we find this case." Id., 198.
Given the holdings in the Kyrtatas and Malerba decisions, there is a split of authority in the lower courts as to whether or not common-law principles of indemnification are abrogated by the PLA. The following superior courts found Kyrtatas to be controlling when the parties are first-party defendants: Grenier v. New Haven Scaffolding, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-00-0590933 (July 26, 2001); Terry v. Palace Aids, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV-99-0078989 (June 20, 2001); Mirabella v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven at New Haven, Docket No. 0326943 (July 5, 1994) ( 12 Conn. L. Rptr. 65); Buda v. Valley Diner, Inc., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV-92-0040631 (January 20, 1993) ( 8 Conn. L. Rptr. 258); U.S. Fidelity v. McDonnell Leasing, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV-90-0112492 (June 1, 1992) ( 6 Conn. L. Rptr. 495).
Citing to Malerba, the following superior court decisions allowed common-law claims for indemnification among existing defendants in product liability cases: Sebastiano v. Grundfos Pumps Corp., Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV-00-0160299 (September 13, 2001); Rotonto v. Access Industries, Superior Court, judicial district of Hartford at Hartford, Docket No. CV-98-0582691 (January 20, 2000) ( 26 Conn. L. Rptr. 274); Brenner v. Laboratoire Biosthet, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV-92-0511978 (May 7, 1993).
The court finds that Kyrtatas is controlling law under the circumstances of this case. A majority of the lower court decisions follow Kyrtatas when the defendants in a case are first-party defendants. The superior court decisions following Malerba do not focus on the different procedural positions of the two cases or the fact that both opinions contain footnotes addressing the difference in the conclusions, stressing that the defendants in Kyrtatas were first-party defendants whereas the defendants in Malerba were not.
Regardless of some general language in the Malerba opinion concerning the principles of indemnification as they relate to the PLA, the fact remains that Malerba did not overrule Kyrtatas, it simply limited its holding "to situations in which all potential defendants are parties to the suit." Kyrtatas, supra, 702 n. 2. Malerba, decided only a year later, holds that common-law indemnification continues as a viable cause of action in a product liability case in which a named defendant has filed a third-party complaint against a third-party defendant. The holdings are not inconsistent.
In the present case, as in Kyrtatas, the plaintiff has asserted direct claims against Skeeter and Uflex. Skeeter claims the situation is different than Kyrtatas because Uflex was not an original party defendant, but was only made a first-party defendant by Evans after Skeeter filed its third-party complaint against Uflex. Skeeter gives no reason why that fact is significant and this court finds it to be a distinction without a difference. Skeeter and Uflex are both defendants and, after trial, if the plaintiff prevails, a verdict will be returned assigning a percentage of liability to all named defendants.
For the foregoing reasons, the court concludes the holding in Kyrtatas v. Stop Shop, Inc. applies in this case and grants Uflex's motion to strike Skeeter's third-party complaint.
Additionally, the court notes that Skeeter's third-party complaint does not allege the requisite elements of a cause of action for common-law indemnification between joint tortfeasors. Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416, 207 A.2d 732 (1965).
BY THE COURT BARBARA M. QUINN, JUDGE.