Opinion
No. CV 01 0557761
November 30, 2005
MEMORANDUM OF DECISION RE WHETHER TREE CONTRACTOR WORKING UNDER STATE CONTRACT IS ENTITLED TO SOVEREIGN IMMUNITY
The plaintiff alleges in his amended complaint that he was driving his motor vehicle northbound on Interstate 95 between exits 72 and 73 on March 15, 2000 at about one o'clock in the afternoon when he observed signs restricting travel in the right lane. The plaintiff alleges that the purpose of the restriction was to allow defendant Asplundh Tree Expert Company to trim and remove trees in an area north of exit 75. The plaintiff further alleges that as he was driving he traversed a graded, blind curve and came upon stopped traffic causing him to stop suddenly, and that the motor vehicle traveling behind his vehicle was unable to stop. The vehicle traveling behind struck the plaintiff's vehicle with tremendous force, causing the plaintiff to suffer substantial injuries.
The plaintiff alleges that defendant Asplundh Tree Expert Company was negligent by not maintaining a safe traffic pattern, not erecting clear and appropriate signs and warnings of lane restrictions, not monitoring traffic backup caused by the lane restriction, and that the defendant's negligence caused the accident and his injuries.
In a Second Special Defense defendant Asplundh Tree Expert Company denies that it was responsible for the maintenance of a safe traffic pattern, erection of appropriate signs and warnings of lane restrictions, monitoring traffic backup caused by the lane closure, and the danger posed to oncoming vehicles traveling on Interstate 95. In the special defense the defendant alleges that the plaintiff's action is barred by the government contractor defense because the Commissioner of Transportation for the State of Connecticut, or his agents, approved and dictated reasonably the precise specifications in this instance, the defendant performed to those specifications, the commissioner, or his agents, knew about the problems alleged by the plaintiff, and the defendant did not withhold any additional information about the alleged problems. It is undisputed that the defendant had a contract with the Connecticut Department of Transportation.
The plaintiff has filed a motion to strike the Second Special Defense of defendant Asplundh. The plaintiff asserts that the government contractor defense has no application where defendant Asplundh, a public works contractor, was hired by the State to remove trees along the highway.
Standard for Motion to Strike
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 325 n. 21, 709 A.2d 1089 (1998). "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005).
The Government Contractor Defense
The plaintiff argues that the government contractor defense does not apply in the present case because, as a federal common-law doctrine, it applies to a narrow group of independent contractors that work for the United States government. The defendant argues that the doctrine has been recognized by Connecticut courts as a valid defense involving state contractors.
Our Supreme Court in Miller v. United Technologies Corp., 233 Conn. 732, 660 A.2d 810 (1995), discussed the doctrine concerning the government contractor defense. The threshold issue on appeal from a granting of a motion for summary judgment was whether a "government contractor defense, which affords United States government contractors immunity from state tort liability, can apply in a case involving military equipment that the United States government had purchased for resale to a foreign government." Id., 735. The court found that
[t]he United States Supreme Court first recognized the government contractor defense in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940), in which the court, relying on agency theory, barred suits against government contractors performing public works projects. The defense was eventually construed to cover product liability actions brought by United States government employees against independent government contractors . . . These cases recognized the defense as an extension of the United States government's sovereign immunity from tort liability on claims brought by government employees who had been injured in the course of their employment.
Miller v. United Technologies Corp., supra, 746 (citations omitted). "The government contractor defense is intended to protect the discretionary decisions of the United States government from judicial scrutiny and to permit the government to acquire from its independent contractors equipment of any specifications that it requires." Id., 747.
The court stated that "[l]iability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States . . . The defense applies to negligence and strict product liability actions as well as to related state tort claims." (Citation omitted; internal quotation marks omitted.) Id., 740-41.
The court in Miller ultimately concluded, inter alia, that the government contractor defense "applies to all contractors that satisfy the Boyle test, regardless of the intended destination of the military equipment." Id., 750. What it significant about the discussion and holding of Miller is that our Supreme Court did not hold, consider, or allude to whether the government contractor defense may be applied to Connecticut state contractors. The defendant in the present case does not direct the court to any language within the Miller case that could support such a claim. The plaintiff, however, argues that the language supplied in Miller applies to federal contracts concerning military products and cannot be relied on to create a governmental contract defense for Connecticut state contractors within the circumstances of the present case.
The defendant, however, cites to Matlack, Inc. v. White Oak Corp., CV 93 0529539 (January 25, 1996, Berger, J.) ( 16 Conn. L. Rptr. 68), and Cunningham v. Northern Insurance Co. of New York, CV 01 0806941 (September 8, 2004, Sheldon, J.) ( 37 Conn. L. Rptr. 855), for the proposition that the government contractor defense applies in the present case. In Matlack, the Superior Court applied the test annunciated in Miller to a case where an independent state contractor conducting road construction on Interstate 91 was sued by the plaintiff who alleged, inter alia, that the contractor was negligent in providing inadequate lighting and inadequate warning of the dangerous construction area, and said negligence caused damage to the plaintiff. The court found that the defendant had satisfied all three components of the Miller test, and, finding no genuine issues of material fact, the court granted the defendant's motion for summary judgment.
The court in Cunningham noted that the ruling in Matlack was made "without first analyzing the propriety of extending Miller to claims against state public works contractors based upon injuries allegedly resulting from their compliance with workplace safety requirements set forth in their state contracts." Cunningham v. Northern Insurance Co. of New York, supra, 37 Conn. L. Rptr. 859. In Cunningham, the defendant moved for summary judgment, in part, on the ground that there was no genuine issue of material facts as to any essential element of its government contractor defense. The plaintiff alleged that the defendant was the proximate cause of her injuries sustained in a vehicle accident on Interstate 395. The plaintiff alleged that the defendant intentionally erected and maintained a signing pattern on the Interstate that blocked her lane of travel and forced her to slow and stop just before two vehicles struck her from behind.
The court, in finding that there were genuine issues of fact, denied the motion for summary judgment and expressed its concern as to whether the government contractor defense was available for state public works contractors.
The court in Cunningham stated that:
there is substantial reason for questioning whether the government contractor defense should be available to state public works contractors, especially in cases involving claimed compliance with safety requirements set forth in their government contracts. This is so for at least three reasons . . .
First, the defense, as originally articulated by the United States Supreme Court in Boyle, applies only to design defect claims against government contractors which supply specially designed military equipment to the United States government. Miller v. United Technologies Corp. supra, 233 Conn. [748] ("The rule articulated in Boyle applies to federal procurement contracts for military equipment").
Cunningham v. Northern Insurance Co. of New York, supra, 37 Conn. L. Rptr. 861 n. 3.
Second, the underlying rationale for the defense, so limited, is that federal policymakers making sensitive military procurement decisions must not be second-guessed or interfered with by the courts when attempting to maintain the delicate balance between the need to explore and develop new technologies to promote the national defense and competing concerns such as protecting the safety of citizens who may be injured by as-yet-unperfected applications of such new technologies . . . (The government contractor defense is intended to protect the discretionary decisions of the United States government from judicial scrutiny and to permit the government to acquire from its independent contractors equipment of any specifications that it requires. In the military context, this immunity serves the . . . important purpose of shielding sensitive military decisions from scrutiny by the Judiciary, the branch of government least competent to review them. Application of ordinary tort law to military design and procurement decisions is not appropriate, for the government is required by the exigencies of our defense effort to push technology towards its limits and thereby incur risks beyond those that would be acceptable for ordinary consumer goods . . . Furthermore, if such contractors were liable for damages resulting from design requirements imposed on them by the government, they might refuse to manufacture products that would put them at risk. In the alternative, the costs associated with any judgments against such contractors and the resulting increase in insurance costs would ultimately be passed on to the United States government . . .)
Id. (citations omitted; internal quotation marks omitted).
Third, it is well settled that the government contractor defense is only available to manufacturers who make products in accordance with quantitative specifications that detail particular requirements to be met in manufacturing military hardware, . . . [not to those whose products are compliant with] [q]ualitative remarks, precatory goals and safety guidelines set forth in their government contracts . . . (The reasonably precise specifications that the government must approve and with which a contractor must comply have been described as quantitative specifications that detail particular requirements to be met in manufacturing military hardware. Kleemann v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir. 1989), cert. denied, 495 U.S. 953, 110 S.Ct 2219, 109 L.Ed.2d 545 (1990) . . . Qualitative remarks, precatory goals and safety guidelines are not the type of reasonably precise quantitative specifications to which the Boyle test refers. Sundstrom v. McDonnell Douglas Corp., 816 F.Sup. 577, 584-85 (N.D.Cal. 1992); . . . see In re Aircraft Crash Litigation Frederick, Maryland, 752 F.Sup. 1326 (S.D.Ohio 1990).
Id., 861-62 n. 3 (citations omitted; internal quotation marks omitted).
Although the court in Cunningham did not have occasion to utilize its discussion in its holding as to whether the government contractor defense applied in that case, the articulation of the court's concern as to the applicability of the defense is, nevertheless, compelling, and this court finds it persuasive. This court agrees with Cunningham that the government contractor defense, as articulated in Boyle and Miller "applies only to design defect claims against government contractors which supply specially designed military equipment to the United States government." Id. Moreover, the defense "is only available to manufacturers who make products in accordance with quantitative specifications that detail particular requirements to be met in manufacturing military hardware . . ." Id.
In accord with the discussion in Cunningham, this court finds that the government contractor defense may not shield the defendant Asplundh from claims of liability in the present case.
Conclusion
For all the foregoing reasons, the plaintiff's motion to strike defendant Asplundh's second special defense is granted.