Opinion
No. 4001712
March 24, 2006
MEMORANDUM OF DECISION
On July 19, 2005, the plaintiffs, Raina Spaziani, Keith Burns, and Markel American Insurance Company (Markel), filed an amended two-count complaint against the defendant, Overhead Door of Norwich, Inc. Both counts assert product liability claims pursuant to the Connecticut Product Liability Act, General Statutes § 52-572m, et seq. Count one, on behalf of Spaziani and Burns, alleges that the defendant sold to Spaziani and Burns an electric garage door opener that, due to its defective condition, caused a garage fire. This fire allegedly damaged or destroyed the garage, as well as personal property contained therein. In count two, Markel, the insurer of a motorcycle owned by Burns, alleges that the defendant is liable to Markel. Markel indemnified Burns for the motorcycle, which was one of the personal property items destroyed during the fire.
On July 18, 2005, the court granted a motion to intervene as an additional plaintiff filed by Quincy Mutual Fire Insurance Company.
On August 17, 2005, the defendant filed a motion to strike paragraph eleven of count one of the amended complaint. The motion was accompanied by memorandum of law. On November 23, 2005 the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. The matter was heard on the short calendar on November 28, 2005.
The defendant filed a supplemental memorandum of law on November 28, 2005.
DISCUSSION
"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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, CT Page 5830 823 A.2d 1202 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
Paragraph eleven of count one of the amended complaint states: "As a further foreseeable result of the fire, the plaintiffs suffered severe emotional distress, mental pain, anguish and anxiety." The defendant moves to strike this paragraph on the ground that it states a claim for emotional distress based solely on property damage, which the defendant argues is not a legally cognizable claim. The plaintiffs counter by arguing that the motion to strike should be denied on procedural, as well as substantive grounds. On procedural grounds, the plaintiffs first argue that the defendant waived its right to have this paragraph stricken by not challenging a similar paragraph contained in the original complaint. The plaintiffs then argue that this motion to strike is improper because it challenges an individual paragraph of a count. Finally, the plaintiffs argue that a claim for emotional distress damages in a product liability case is actionable provided the emotional distress was foreseeable. The plaintiffs' arguments will be discussed in turn.
The plaintiffs contend that the defendant had an opportunity to challenge paragraph eleven of count one when it filed a motion to strike the original complaint on May 17, 2005. That motion to strike was never adjudicated because the plaintiffs filed an amended complaint on July 19, 2005. The plaintiff now urges the court to hold that the absence of a possible ground in an unadjudicated motion to strike bars the plaintiff from moving to strike a subsequent amended complaint on that ground. This court declines to do so for two reasons. First, there is a possibility that the defendant may have sought to amend its motion to strike to include additional grounds before it was argued. See, e.g., Smith v. Christoforo, Superior Court, judicial district of New Haven, Docket No. CV 990425766 (July 25, 2000, Alander, J.) (holding that new grounds raised by amendment to motion to strike before argument or decision were appropriate); Byrum v. Pratt Whitney Aircraft, Superior Court, judicial district of Hartford, Docket No. CV 92 0509063 (June 1, 1994, Corradino, J.) ("A defendant should be allowed to amend its motion to strike before argument . . ."). Second, substituted complaints have been viewed as "trigger[ing] a new beginning to the order of pleadings as set forth in Practice Book [§ 10-6]." (Internal quotation marks omitted.) DeOliveira v. Ross Roberts, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 0278480 (March 27, 1992, McGrath, J.) ( 6 Conn. L. Rptr. 223); BRT Corporation v. New England Masonry Co., Superior Court, judicial district of Litchfield, Docket. No. 0048920 (October 25, 1991, Pickett, J.) ( 5 Conn. L. Rptr. 205, 206). Accordingly, this court finds that the defendant did not waive its right to file this motion to strike.
Contrast these cases involving substitute complaints with cases that prohibit a party from filing two motions to strike the same pleading. See, e.g., Barasso v. Rear Still Hill Road, LLC, Superior Court, judicial district of New Haven, Docket No. CV 980417927 (October 15, 2001, Jones, J.) ( 30 Conn. L. Rptr. 546); Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. CV 92 0331912 (March 15, 1994, Hodgson, J.) ( 11 Conn. L. Rptr. 203).
The plaintiffs next argue that their claim for emotional distress damages should not be stricken because it is set out in a separate paragraph as part of a product liability claim. The defendant counters by arguing that the claim for emotional distress is not immune from a motion to strike simply because the plaintiffs chose not to set it forth in a separate count. "[M]ost trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense." (Internal quotation marks omitted.) Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV 99 0431868 (February 4, 2002, Zoarski, J.T.R.) ( 31 Conn. L. Rptr. 380); see also Zamstein v. Marvasti, 240 Conn. 549, 553, 692 A.2d 781 (1997) (trial court "struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium . . .")
A claim for emotional distress within a product liability claim is subject to the same requirements as an emotional distress claim brought outside of the product liability act. See Fisher v. McDonald's Corp., 47 Conn.Sup. 525, 528 n. 2, 810 A.2d 341 (2002) ("negligent infliction of emotional distress . . . principles should apply to the allegations of emotional harm under the Connecticut Products Liability Act . . ."); Dujack v. Brown Williamson Tobacco Corp., Superior Court, judicial district of Windham, Docket No. CV 99 0060703 (February 16, 2000, Sferrazza, J.) ( 26 Conn. L. Rptr. 620, 623) (testing legal sufficiency of claim for bystander emotional distress within product liability action); Ritchie v. Gerber Products Co., Superior Court, judicial district of New Haven, Docket No. CV 0413399 (November 20, 1998, Hartmere, J.) ( 23 Conn. L. Rptr. 420, 421) (same); see also LaMontagne v. E.E. Du Pont De Nemours Co., Inc., 41 F.3d 846, 856 (2d Cir. 1994) ("Since the [Connecticut Product Liability Act] was not meant to eliminate common-law substantive rights . . . [courts should] assess plaintiffs' theories of recovery in light of the Connecticut common-law requirements.").
As in Fisher v. McDonald's Corp., supra, 47 Conn.Sup. 525, the allegations in the present case of emotional distress would have to meet the requirements of a cause of action for negligent infliction of emotional distress, which are: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). In paragraph eleven of count one, the plaintiffs allege that "[a]s a further foreseeable result of the fire, the plaintiffs suffered severe emotional distress, mental pain, anguish and anxiety." Although concise, this allegation can be construed as setting forth the elements of a claim for negligent infliction of emotional distress.
In fact, when attacking the merits of the motion to strike in their memorandum of law, the plaintiffs argue that they "have properly alleged in count one, paragraph eleven that their respective emotional damages were foreseeable consequences of the fire, which destroyed [their property] . . . If a pleading contains the necessary elements of a cause of action, it will survive a motion to strike. In that regard, the plaintiffs have pled that the emotional damages were a foreseeable result of the fire . . ." Viewing paragraph eleven in light of the pleading requirements of a claim for negligent infliction of emotional distress, in addition to the plaintiffs' argument regarding what was accomplished by paragraph eleven, the court agrees with the defendant that paragraph eleven is an attempt to set forth the allegations of a claim for emotional distress. Accordingly, this court will address the substantive ground of the motion to strike.
In Myers v. Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), our Appellate Court addressed a claim for emotional distress for the death of a pet dog. The court held that the plaintiff could not recover for emotional distress due to the death of a pet. In so holding, the court stated: "Our common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet." (Emphasis added.) Id., 402. The court stated that "[l]abeling a pet as property fails to describe the emotional value human beings place on the companionship that they enjoy with such an animal. Although dogs are considered property . . . this term inadequately and inaccurately describes the relationship between an individual and his or her pet. That having been said, there is no common-law authority in this state that allows plaintiffs to recover noneconomic damages resulting from a defendants alleged negligent or intentional act resulting in the death of a pet, nor does the plaintiff refer us to any." (Citation omitted.) Id.
The reasoning by the court in Myers v. Hartford indicates that the basis of its holding was that damage or destruction solely to property, despite sentimental attachment to the property, cannot be the basis of recovery for emotional distress. Furthermore, "[e]very Superior [C]ourt case that has addressed this issue . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property." Burke v. Boatworks, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 044001838 (July 26, 2005, Jennings, J.). In the present case, the plaintiffs' claim of emotional distress damages under the Connecticut Product Liablity Act is based solely on damage to property. Based on the foregoing authority, the defendant's motion to strike paragraph eleven of count one of the amended complaint is granted.