Opinion
No. CV 98 0354780
July 9, 2003
MEMORANDUM OF DECISION RE (#147) DEFENDANT'S MOTION TO STRIKE
This action was commenced by the plaintiff Stefan Martisek on July 7, 1998. Upon Martisek's death, the executor of his estate, Richard A. Jonson, was substituted as plaintiff.
On December 12, 2002, Johnson filed an amended complaint in two counts against the defendant, Tadeusz Showron, M.D. — count one alleges medical malpractice and count two alleges breach of implied warranty, pursuant to General Statutes Section 42a-2-315, a provision of the Connecticut Uniform Commercial Code.
In count one, medical malpractice, the plaintiff alleges that the decedent consulted the defendant beginning in March 1997, at which time the defendant initially failed to correctly diagnose that the decedent had lung cancer and then failed to provide him with proper treatment and instead sold him herbal pills to treat the disease.
In count two, breach of implied warranty under General Statutes § 42a-2-315, the plaintiff alleges that on July 31, 1997, the defendant informed the decedent that he had lung cancer and sold him the herbal pills for the treatment of his disease at a mark up of more than 100 percent.
On August 4, 1999, the decedent died as a result of his disease.
On April 14, 2003, the defendant filed a motion to strike count two on the grounds that the plaintiff fails to allege facts that would support a cause of action for breach of implied warranty of fitness, or, in the alternative, that the cause of action is barred by the applicable statute of limitations. The defendant filed a memorandum in support of his motion.
The plaintiff filed a memorandum in opposition to the motion on April 30, 2003. The plaintiff contends that he has adequately alleged a cause of action for breach of implied warranty and that it is not barred by limitations because it relates back to the date of the decedent's original complaint.
"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 . . . [The court] takes the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [Conversely] a motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
The defendant first argues that the plaintiff fails to allege facts sufficient to support a cause of action under § 42a-2-315 because the statute only applies to transactions for the sale of goods. According to the defendant, the primary purpose of the transaction between the parties in this case was for medical services, and the defendant's sale of pills to the plaintiff was merely incidental thereto. In addition, the defendant argues that count two is deficient because the plaintiff fails to allege that he was harmed by using the pills. The plaintiff counters that the cases the defendant relies upon for his arguments are not applicable because they do not pertain to the Uniform Commercial Code.
Section 42a-2-315 provides: "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under section 42a-2-316 an implied warranty that the goods shall be fit for such purpose." "To establish a cause of action for breach of the implied warranty of fitness for a particular purpose, a party must establish (1) that the seller had reason to know of the intended purpose and (2) that the buyer actually relied on the seller." (Internal quotation marks omitted.) Morin v. Wilton Motors, Corp., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 01 0182082 (May 23, 2001, D'Andrea, J.).
This provision is found in the article entitled "Uniform Commercial Code — Sales"; General Statutes § 42a-2-101; which governs the sale of goods in Connecticut. State v. Cardwell, 246 Conn. 721, 730 (1998). As to its scope, the article states: "Unless the context otherwise requires, this article applies to transaction in goods . . ." Section 42a-2-102. The article provides the following definitions for the term "goods": "`Goods' means all things, including specially manufactured goods, which are movable at the time of identification of the contract for sale other than the money in which the price is to be paid . . ." Section 42a-2-105 (1). Thus, it is generally agreed that article two of the Uniform Commercial Code applies to the sale of goods and does not apply to the sale of services. See Incomm, Inc. v. Thermo-Spa, Inc., 41 Conn. Sup. 566, 569 (1991); Lucid, Inc. v. Disanto Technology, Superior Court, judicial district of Ansonia/Milford at Derby, Docket No. CV 98 060934 (November 22, 2000, Mancini, J.).
When, however, the transaction that forms the basis for a breach of warranty claim under the statute involves both goods and services, the trial courts have adopted differing views. One line of cases holds that in "such hybrid transactions, the question becomes whether the dominant factor or essence of the transaction is the sale of the materials or the services." Myrtle Mills Associates v. Bethel Roofing, Inc., Superior Court, judicial district of Danbury, Docket No. CV 0298734 (September 14, 1993, Moraghan, J.) ( 10 Conn.L.Rptr. 49, 50). See also Epstein v. Giannattasio, 25 Conn. Sup. 109 (1963).
If the essence of the transaction is the sale of goods, the statute applies; if the essence is the sale of services, it does not.
As explained by the court in one decision, "[i]t is clear that where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods under the UCC." Gulash v. Stylarama, Inc., 33 Conn. Sup. 108, 111 (1975).
"In determining whether a contract is one of sale or to provide services, the court looks to the essence of the agreement to see whether service predominates over any sale aspect, such as supply of materials by the principal to the service entity . . . Whether a contract is one for the sale of goods, or for work and labor to be rendered may depend on whether the primary intent is merely to provide for the delivery of goods, or whether the essential consideration is work and labor to be performed at the employer's instance and for his use rather than for the producer's benefit . . . It is of no moment that the materials to be processed [were] transferred from the defendant's possession to the plaintiff's: where service predominates, and the transfer of personal property is only incidental to the transaction, it is a contract for work, labor and materials and not a sale." Lucid, Inc. v. Disanto Technology, supra, Superior Court, Docket No. CV 98 060934.
The other line of cases notes "the absence of a decision of the Connecticut Supreme Court limiting the effect of a breach of warranty to the goods themselves as opposed to services directly connected to such goods, and in view of the ever increasing policy towards the imposition of liability upon a manufacturer for any conduct on his part causing damage to another . . . [adopts] the more liberal trend which appears based upon reason and logic. There is no sound reason why a manufacturer who either incidentally or as an integral part of his operations renders services in the installation of his goods, who knows the use and purpose for which they are intended, and who knows that the user thereof is relying on his skill and judgment, should not be held liable under the theory of breach of warranty for each and every step of the process under his control, including services rendered, by him, by which the goods are transferred to the ultimate user . . . The contract for sale of a product . . . under such circumstances should be considered as a unified whole and not divided into separate and independent parts . . ." Paint Products Co. v. AA-1 Steel Equipment Co., 35 Conn. Sup. 52, 53-54 (1977); see also Brown v. Triangle Pacific Corp., Superior Court, judicial district of New Haven, Docket No. CV. 01 0450979 (July 9, 2002, Robinson-Thomas, J.) ( 32 Conn.L.Rptr. 467) (motion to strike denied because "complaint clearly and plainly alleges . . . [facts] specific enough to make a legally sufficient claim for breach of warranty").
In the instant case, the defendant's motion to strike fails under both lines.
Under the second line of cases, all that is required is that the plaintiff plead facts that satisfy the elements of the statute. The plaintiff does so in count two: specifically, he alleges that: the defendant sold the pills to the decedent for the treatment of the decedent's lung cancer; the defendant knew the purpose for which the decedent intended to use the pills; the decedent relied on the defendant's skill and judgment to select or furnish him with goods suitable for this purpose; the defendant breached the implied warranty in that the pills were not fit for this purpose; and the decedent was damaged because his reliance caused him to delay effective treatment of his condition, his chance for recovery was diminished, and he died as a result of disease and the delay.
Under the first line of cases, the determining factor for the court is the intentions of the parties, which may have changed over the course of the relationship, and cannot be determined from the facts alleged in the complaint. Reading the complaint in the manner most favorable to the plaintiff, as the court is required to do in the context of a motion to strike, the court cannot determine whether the primary purpose of the relationship between the parties was for service or for the sale of pills.
On the issue of limitations, the defendant argues that count two is time-barred because the plaintiff failed to plead it until he filed his amended complaint on December 12, 2002, which is outside the four-year limitations provision of General Statutes § 42a-2-725.
The plaintiff counters that the issue of limitations is not appropriately decided in the context of a motion to strike and, in any case, count two relates back to the date he commenced this action, July 10, 1998, and is, therefore, timely.
The court notes that the plaintiff also implies that the court already ruled on this issue when it overruled the defendant's objection to the plaintiff's request to amend the complaint. This implication is erroneous. On December 2, 2002, the court, Sheedy, J., overruled the defendant's objection for procedural reasons.
In general, the plaintiff is correct that "[a] claim that an action is barred by the lapse of the statute of limitation must be pleaded as a special defense, not raised by a motion to strike . . . In two limited situations, however, we will allow the use of a motion to strike to raise the defense of the statute of limitations." Forbes v. Ballaro, 31 Conn. App. 235 (1993).
The first situation, which is applicable here, "is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer." Id.
Section 42a-2-725 provides in pertinent part: "(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued . . . (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered."
According to the complaint, the defendant delivered the herbal pills to the decedent on July 31, 1997. On July 25, 2002, the plaintiff filed a request to amend and an amended complaint in which he, for the first time, alleged a cause of action for breach of the implied warranty of fitness for a particular purpose under § 42a-2-315. The plaintiff later withdrew that request and has subsequently filed two additional amended complaints, one on October 9, 2002, and the other on December 12, 2002, both of which also contain this cause of action. All of these complaints were filed more than four years after July 31, 1997. Thus, the plaintiff's breach of warranty claim is barred by limitations unless it relates back to the original complaint, which the decedent commenced on July 10, 1998, well within the limitations period.
According to our Supreme Court, "our relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure, which provides in pertinent part: . . .'Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.' Giglio v. Connecticut Light Power Co., [ 180 Conn. 230, 239-40 (1980)] . . . The policy behind rule 15(c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford." Gurliacci v. Mayer, 218 Conn. 531, 547 (1991).
Further, the court has explained that the doctrine is premised on the following: "A right of action at law arises from the existence of a primary right in the plaintiff and, an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." Alswanger v. Semego, 257 Conn. 58, 64-65 (2001).
For example, in Gurliacci v. Mayer, supra, 218 Conn. 531, a motor vehicle accident case, the court examined the relevant pleadings and determined that "[t]he new allegations [of recklessness] did not inject two different sets of circumstances and depend on different facts [than the negligence claim] . . . but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability . . . [The defendant] had adequate notice that a claim was being asserted against him arising out of the alleged motor vehicle accident." Id., 549.
Accordingly, the court held that the amended complaint related back to the initial complaint and thus was not barred by the statute of limitations. Id., 546.
In contrast, in Alswanger v. Semego, supra, 257 Conn. 58, a medical malpractice action, the court determined that the "the plaintiffs' amended complaint alleging lack of informed consent regarding a resident's participation in the surgery arose from a different set of facts than the allegations set forth in the original complaint" Id., 61. Thus, the amendment did not relate back to the original complaint. The court explained, "[a]lthough the focus of the original complaint was on the informed consent as it related to the surgical procedure itself, the amended complaint shifted the focus to consent by the patient to the participation of the individuals involved in the surgery." Id., 66. If the court had permitted the amendment, the defendant would be required "to gather different facts, evidence and witnesses to defend the amended claim." Id., 67.
In this case, the plaintiff's breach of warranty claim is premised on the same factual circumstances and general theories as his claim for medical malpractice, i.e., the decedent consulted the defendant, the defendant had a duty to the decedent to provide him with appropriate treatment for lung cancer and the defendant breached this duty by selling the decedent herbal pills to treat his cancer instead of recommending appropriate treatment. In the breach of warranty claim, the plaintiff expands on his malpractice claim and sets forth another theory under which the defendant may be liable for selling the pills to the decedent. Accordingly, the defendant had adequate notice from the start of this action that it is premised on the manner in which he provided treatment to the decedent and the appropriateness of his sale of herbal pills to the decedent. The facts, evidence and witnesses should be substantially the same for both claims.
Therefore, the plaintiff's claim for breach of an implied warranty of fitness for a particular purpose relates back to the commencement of the initial complaint and is therefore not barred by limitations.
For the foregoing reasons, the defendant's motion to strike count two of the plaintiff's amended complaint is denied.
By the Court,
JOSEPH W. DOHERTY, JUDGE