Opinion
No. CV07 5002325-S
January 24, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #116
The plaintiff, Helen Jordan, has filed a revised complaint against the defendant, Maxim Mobility, LLC (Maxim), which alleges the following facts. On December 30, 2003, the plaintiff purchased a motorized scooter from Maxim that Pride Mobility Products Corp. (Pride) manufactured. In July 2004, Pride voluntarily recalled the scooter, notifying the United States Food and Drug Administration, but not the plaintiff. On October 19, 2004, the scooter moved forward and struck the plaintiff in the leg, resulting in injuries. Pride notified Maxim of the scooter's recall and defective condition; Maxim, however, failed to notify, repair or replace the scooter it sold the plaintiff. In September 2005, Pride notified the plaintiff that the scooter had been recalled.
Maxim has moved to strike count two, which alleges a violation under General Statutes § 42-110b (CUTPA). The motion to strike is based on the ground that the plaintiff's CUTPA claim is barred by General Statutes § 52-572n(a), known as the Connecticut Product Liability Act (the CPLA). On November 9, 2007, the plaintiff filed an objection to the defendant's motion to strike together with a memorandum of law. On December 10, 2007, the court heard oral argument.
General Statutes § 42-110b provides in relevant part: "(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
DISCUSSION
"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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendant argues that the plaintiff's CUTPA claim is barred by § 52-572n because she failed to allege a harm or seek a remedy sufficient to remove her CUTPA claim from the exclusivity scope of the CPLA. The plaintiff argues that she "suffered harm that can be reasonably construed as falling outside [the CPLA] constituting legally sufficient claims under [CUTPA]."
The CPLA, General Statutes § 52-572n, provides in relevant part: "(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."
A "product liability claim" is defined to include "all claims or actions brought for personal injury, death or property damage 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; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." General Statutes § 52-572m(b).
A "product seller" is defined to mean, in part, "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." General Statutes § 52-572m(a).
"Harm" is defined to include "damage to property, including the product itself and personal injuries including wrongful death." General Statutes § 52-572m(d).
In Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 818 A.2d 769 (2003), the Supreme Court stated that: "[A] product liability claim under the [CPLA] is one that seeks to recover damages for personal injuries, including wrongful death, or for the property damages, including damages to the product itself, caused by the defective product." Id., 128. That court further stated that: "[T]he language of the exclusivity provision makes clear that the [CPLA] was intended to serve as the exclusive remedy for a party who seeks recompense for those injuries caused by a product defect. The language of the exclusivity provision, however, suggests that it was not designed to serve as a bar to additional claims, including claims brought under CUTPA, either for an injury not caused by the defective product, or if the party is not pursuing a claim for `personal injury, death or property damage . . .' General Statutes § 52-572m(b)." Id.
In Gerrity, the Supreme Court held that: "[T]he plaintiff's CUTPA claim may be asserted in conjunction with the [CPLA] claim. We reach this conclusion based on the following analysis of the plaintiff's second amended complaint. In part, at least, the plaintiff's CUTPA claim does not seek a remedy for personal injury, death or property damage. See General Statutes § 52-572m(b). The plaintiff seeks, rather, to use CUTPA so as to redress merely a financial injury suffered by the decedent, of a kind that has never been regarded as part of the traditional tort remedy for harm caused by a defective product. The plaintiff alleged that the decedent was forced to pay a higher price for the defendants' cigarettes than she would have had to pay in the absence of the wrongful course of conduct allegedly engaged in by the defendants. The financial injury allegedly suffered by the decedent and for which the plaintiff seeks to use CUTPA to provide a remedy, cannot reasonably be construed to be a claim for `personal injury, death or property damage . . .' General Statutes § 52-572m(b). For this reason, the plaintiff's CUTPA claim may be brought in conjunction with a claim under the [CPLA]." (Emphasis in original.) Id., 129-31.
Following the principles set down in Gerrity, the court must examine the operative complaint to determine whether the plaintiff's CUTPA claim falls within the scope of the CPLA. If the plaintiff's CUTPA claim falls under the CPLA, that claim would be barred by § 52-572n(a). If the CUTPA claim, however, falls outside of the CPLA's scope, § 52-572n(a) would not bar that CUTPA claim.
Count two of the revised complaint alleges that "Maxim's withholding of information regarding the recall from the plaintiff deprived the plaintiff of the ability to avail herself to certain remedies under the warranty." This allegation that Maxim withheld recall information fits squarely within the definition of a "products liability claim" as defined in § 52-572m(b) ("breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent . . ."). The plaintiff also has failed to specifically allege a financial harm caused by any "unfair or deceptive trade practice," separate from the personal injury allegations, that would bring count two outside the scope of the CPLA. Therefore, count two is barred by § 52-572m(b) and is stricken.