Opinion
No. X01-CV-04-0185513 S
March 1, 2005
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (#129 #130)
Factual Background
The plaintiffs have brought suit as parents of their minor child Nicole and on behalf of themselves and all other persons similarly situated who have purchased children's bedroom furniture said to be sold by defendant Kids Bedtime Furniture, LLC and manufactured by defendant P.J. Kids, LLC. Specifically, the claim is that the furniture contained formaldehyde. Eight (8) counts are asserted in the First Revised Complaint — two (2) alleging violation of this state's Product Liability Act, two (2) stating violation of the Connecticut Unfair Practices Act (CUTPA), two (2) for unjust enrichment, and two (2) for an injunction.
Kids Bedtime Furniture, LLC has moved to strike only Count Four — the CUTPA claim as asserted against it — on the ground the exclusivity provision of the Connecticut Products Liability Act ("CPLA") precludes recovery where a plaintiff seeks to recover damages under CUTPA for personal injuries caused by a defective product. P.J. Kids, LLC mirrors that claim in moving to strike the CUTPA claim against it in Count Three. Additionally, it moves to strike Count Five for unjust enrichment, Count Seven for an injunction, and the Prayer for Relief's claim for punitive damages pursuant to common law, CUTPA, and CPLA — to all of which the plaintiffs have objected. All parties have filed appropriate memoranda and the necessary Request for Adjudication and have waived oral argument thereby consenting to the court's adjudication of the motions on the papers.
The memoranda filed were well-written, concise, helpful to and appreciated by the court.
Applicable Law
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Citation omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). It tests whether the complaint states a claim upon which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002); P.B. § 10-39. The trial court's role is to examine the complaint and construe it in favor of the pleader. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772 (2002). Specifically, the court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder" and "read the allegations broadly, rather than narrowly." Craig v. Driscoll, 262 Conn. 312, 321 (2003). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." Forbes v. Ballaro, 31 Conn.App. 235, 239 (1993). The motion is to be tested by the allegations of the pleading, which allegations cannot be enlarged by the assumption of any facts not therein alleged. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549-50 (1980). The motion is properly granted if the complaint alleges mere conclusions of law unsupported by the facts alleged. Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720 (2002); Donar v. King Associates, Inc., 67 Conn.App. 346, 349 (2001). If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action, the complaint is not vulnerable to a motion to strike. Bouchard v. People's Bank, 219 Conn. 465, 471 (1991).
Counts Three and Four (CUTPA)
The defendants argue the CPLA creates a consolidated cause of action against product sellers for claims sounding in "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." C.G.S. § 52-572m(b). The exclusivity provision provides, "A product liability claim . . . 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." (Emphasis added.) § 52-572m(a). All parties then argue the judicial gloss put on the "shall be in lieu of all other claims" language of the statute by our Supreme Court in Gerrity v. R.J. Tobacco Company, 263 Conn. 120 (2003)-with differing conclusions. In Gerrity, the plaintiff-executor of his mother's estate sued tobacco companies for her death from lung cancer and alleged causes of action based on both the CPLA and CUTPA. The U.S. District Court certified to our Supreme Court the question whether the exclusivity provision of the CPLA precluded a cause of action under CUTPA. The Court's answer was "NO." Id., at 132. It reached that conclusion because the complaint before it alleged, in addition to the claim the cigarettes were defective and unreasonably dangerous because addictive and causative of lung cancer, the defendants designed and manufactured their cigarettes to enhance their addictive nature, engaged in an industry-wide scheme to defraud consumers into believing there was a legitimate dispute regarding the addictive nature of cigarettes and associated health hazards, issued false statements regarding the same, failed to disclose evidence known to them regarding the addictive nature of smoking while they increased the nicotine levels and targeted minors in their advertising, etc. Id., at 123-24. Affirming the product liability statute was the exclusive remedy against product sellers for claims "within the scope of" the Act ( Id., at 126), it concluded the CUTPA claim before it fell outside the purview of the CPLA and thus the exclusivity provision was not a bar to the CUTPA claim. Relying largely on the CPLA's definition of "harm" to include "damage to property, including the product itself, and personal injuries including wrongful death" (§ 52-572m[d]), it concluded a product liability claim under the CPLA was one seeking to recover damages for personal injuries or for property damage but the exclusivity provision did not bar an additional claim such as one 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 . . .'" Id., at 128. It also relied on legislative history and the words of a state senator the CPLA was "not intended to affect other state statutory schemes such as anti-trust acts or the state unfair trade practice act." Id., at 129, citing to 22 S.Proc., Pt. 14, 1979 Sess., pp. 4636-37. Reconciling its conclusion the plaintiff's CUTPA claim could be asserted in conjunction with a claim under the CPLA and cognizant the plaintiff before it had asserted a wrongful death claim, the Court reasoned, "In part, at least, the plaintiff's CUTPA claim does not seek a remedy for personal injury, death or property damage" but seeks "to use CUTPA so as to redress merely a financial injury . . . of a kind that has never been regarded as part of the traditional tort remedy for harm caused by a defective product." (Emphasis in original.). Id., at 129-30.
Neither defendant denies it is a "product seller."
The "financial injury" there consisted of the allegation the decedent was forced to pay more for cigarettes than would have been necessary in the absence of the defendants' wrongful conduct. Id., at p. 130.
Paragraph 24 of the Third Count (addressed to P.J. Kids, LLC) asserts that defendant misled the public that its furniture was safe for use by children in stating its products: a) are designed to meet the highest voluntary and mandatory safety standards set forth by the CPSC and ASTM and built to exacting quality standards; b) are suitable for use by children; and c) provide no warning the furniture was manufactured with formaldehyde, that formaldehyde is a known carcinogen, and that exposure to formaldehyde poses serious health risks to children. Paragraph 24 of the Fourth Count (addressed to Kids Bedtime Furniture, LLC) repeats allegations (b) and (c) above. Paragraph 32 of each count alleges the plaintiffs and class have each sustained an "ascertainable loss of money and have been damaged." These counts do not, as defendants urge, constitute a personal injury claim and the suggestion the claim of "ascertainable loss" in Paragraph 32 of each count is nothing "more than the personal injury damages claimed under the CPLA (p. 5 of memorandum of P.J. Kids, LLC and re-alleged on pp. 1-2 of its Reply) is baffling. Only the minor claims personal injuries and a fair reading of these counts suggests the "ascertainable loss," when one considers the alleged product defect and alleged trade practices, is a financial loss to consumers who did not receive what they believed they had purchased. The minor is not the appropriate party to assert a claim for either the absence of consideration or the failure to obtain the benefit of the bargain. As is often the case, defendants simply ask a motion to strike to do too much. Its function is solely to test the legal sufficiency of the pleading; it requires the court to make no factual findings. The court must, however, assume the truth of both the specific factual allegations and any facts fairly provable thereunder, reading the allegations broadly. The claimed financial injury and for which the plaintiffs seek a CUTPA remedy cannot reasonably be construed as a claim for "personal injury, death or property damage" under § 52-572m(b) of the CPLA and they are therefore not precluded from asserting their CUTPA claims. The motion to strike Counts Three and Four is denied.
Paragraph 24a asserts the defendant's website advertised it designed and manufactured "great" furniture for children and that the furniture created a "fun environment" which "challenges the imagination" and "enhances creativity." None of these allegations go to product safety and are not appropriately included.
Count Five
Only P.J. Kids, LLC moves to strike this count. Re-asserting the allegations of earlier counts, Paragraph 34 asserts that, as a result of the defendant's unfair and deceptive conduct, the defendant was paid for its furniture which was not safe for children and thus got something of value from the plaintiffs and class to which it was not entitled and was unjustly enriched. Paragraph 36 seeks disgorgement of profits by the defendant and an order of restitution. Defendant has moved to strike this count for failure to allege the existence of a contract between the parties and the failure to allege the plaintiffs directly conferred a benefit upon the defendant.
The same count is asserted against the co-defendant in Count Six but that defendant, though clearly subject to this ruling, failed to move to strike that count.
The court is unpersuaded by these arguments. Again, the allegations of the complaint must be broadly construed when adjudicating a motion to strike and, further, this court must favorably construe all facts " necessarily implied and fairly provable" under the factual allegations (Emphasis added.) Forbes, supra, 31 Conn.App., at 239. Paragraph 34 of the Fifth Count clearly states this defendant "received remuneration for its furniture." Paragraph 35 asserts the defendant "was not entitled to the money received from plaintiffs." The defendant's citation to United Coastal Industries v. Clearheart Constr. Co., 71 Conn.App. 506, 511 (2002) is in error since nowhere there is it stated the plaintiff must allege he/she directly paid the defendant. That case stands for the proposition the plaintiff must, inter alia, prove the defendant received a benefit in an unjust enrichment claim. A plaintiff seeking damages under this very broad and flexible equitable doctrine "must establish that the defendant received a benefit." Morgan Building Spas v. Dean's Stoves Spas, 58 Conn.App. 560, 563 (2000); see also Gagne v. Vaccaro, 255 Conn. 390, 409 (2001). Nor is the court persuaded by other superior court decisions which have concluded the parties must have a direct relationship (as opposed to buying from a retailer as here) since, as this court said in Zeigler v. Sony Corp. of America, 48 Conn.Sup. 397, 404 (2004) ( 36 Conn. L. Rptr. 531), that is to engraft a requirement not imposed by our higher courts.
This inattention to detail not only dis-serves the court but is an impediment to legal scholarship and renders suspect every other citation in the body of work.
While Granito v. IBM, D.N. 080440, judicial district of Tolland, CLD, April 17, 2003, does in fact conclude no action for unjust enrichment lies "absent the conferring by the plaintiff directly" ( 2003 Ct.Sup. 488, at 4885), it cites — as did the defendant — to United Coastal, 71 Conn.App. at 511, and United Coastal simply doesn't say that. It is sufficient under that case for the plaintiff to recover "if the defendant was benefitted, did not pay for that benefit, and the failure of payment operated to plaintiff's detriment." Id., at 512. The defendant's flaw is its imposing a requirement our law does not impose — and representing it as this state's law.
As Paragraph 36 of the Fifth Count states, the plaintiffs seek restitution damages. Under our case law, unjust enrichment applies when no remedy is available based on contract. Gagne, supra, 255 Conn. 401. The lack of remedy under a contract "is a precondition to recovery based on unjust enrichment . . . it would be contrary to equity and fairness to allow a defendant to retain a benefit at the expense of the plaintiff." Id. Although the defendant is correct in stating this court may not, in adjudicating a motion to strike, consider facts not stated in the complaint or necessarily implied or provable thereunder, there are sufficient assertions of a benefit received by this defendant to withstand this motion.
The defendant, in its Reply, states "unjust enrichment applies wherever justice requires that compensation be given for property and services pursuant to contract and no remedy is available on the contract." (Emphasis in original.) Reply, at p. 4. It goes on, however, to conclude the doctrine therefore contemplates "that there will have been some type of a contractual relationship . . ." Id. Burns does not so hold. To say, as our case law has said, that this theory is not available when one has a remedy under a contract is not to conclude that, before one can recover for unjust enrichment there must be "a contractual relationship." Burns specifically provides that, for a plaintiff to recover under this doctrine, the defendant must have received a benefit, that the benefit was unjust in that it was not paid for by the defendant, and that the failure of payment operated to plaintiff's detriment. The availability of restitution based on a theory of unjust enrichment is "based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained, or appropriated . . . The question is: Did he, [the party liable] to the detriment of someone else, obtain something of value to which he was not entitled?" Id., at 384. In the case before the court, the only contract is as between the plaintiffs and the co-defendant furniture seller with whom they dealt. There is, as to P.J. Kids, LLC, neither the allegation of a contract nor a remedy available pursuant to a contract. The plaintiffs' allegations are under the decisional law of this state sufficient to state a cause of action for unjust enrichment and the motion to strike Count Five is denied.
Count Seven
This count re-asserts all of the allegations of Count Five and, in Paragraph 38, states a preliminary and permanent injunction is necessary to alleviate the health risk to children and parents as created by this defendant. Specifically, it asks: (a) the defendant, its agents, "and all others acting in concert with them" from selling this furniture; (b) the defendant be required to "adequately test" the furniture; (c) it be required to place "suitable" warnings on the furniture; (d) that purchasers be notified of product hazards; and (e) that defendant be required to create a "plan of relief" for purchasers. The defendant has moved to strike this count for failure to allege irreparable harm and an inadequate remedy at law.
Count Eight asserts the same as against the co-defendant who has not addressed the same.
The plaintiffs seek the extraordinary remedy of a mandatory injunction. "Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances." (Internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480 (1982). A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598 (2002). "These elements are so crucial that a party's failure to allege and prove them is a sufficient ground for sustaining the refusal to grant an injunction, even where a court's conclusions on the merits are erroneous." Hartford v. American Arbitration Assn., 174 Conn. 472, 476-77 (1978). The allegations and proof are conditions precedent to the granting of an injunction. Id., at 476. Even where the danger of irreparable harm is shown, the granting of an injunction lies within the sound discretion of the court. Koepper v. Emanuele, 164 Conn. 175, 178 (1972). While citing to Scinto v. Sosin, 51 Conn.App. 222, 245 (1998), for the proposition these two elements must be alleged and proven, the plaintiff cites to a superior court case which denied a motion to strike for the same reason because the facts there established in the court's view that the plaintiffs would be irreparably harmed and would be without an adequate remedy at law. This court does not agree. The words chosen consistently by our Supreme Court very clearly indicate the allegations are necessary to the granting of this relief. Nor does the plaintiffs' citation to Doe v. Yale University, 252 Conn. 641 (2000) for the proposition that, in determining the sufficiency of a complaint, "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted" ( Id., at 667.) meet their burden. When it is incumbent upon them to "allege" and prove irreparable harm and the absence of an adequate remedy at law, the court cannot "imply" these elements from the facts without ignoring the mandate of decisional law.
There are additional impediments to sustaining the plaintiff's objection. As to these named plaintiff's and the class of plaintiffs that may eventually be certified, there can be no doubt regarding the existence of an adequate remedy at law. The plaintiffs have a remedy in our products liability statute, our Unfair Trade Practices Act, and in restitution. Further, the plaintiffs ask this court to enjoin all those "acting in concert" with the defendant in making this furniture available to consumers. It is a fundamental limitation on a court's power that it may only adjudicate with regard to the parties before it. Here, the relief sought is impermissibly broad because it requests adjudication extend to — and bind — unknown third parties and that the order which issues embrace "consumers" not either before the court or represented by plaintiffs' counsel. Additionally, the court is mindful the purpose to be served by a complaint is to state a "cause of action." "It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought." P.B. § 10-20. "A `cause of action' is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief." (Emphasis added.) Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 129 (2002). "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." Id. The distinction between "rights and causes of action" on the one hand and "remedies" on the other hand is a distinction the Practice Book consistently observes. See e.g., P.B. § 10-21 ("[T]he plaintiff may include in the complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies). An injunction is a form of equitable relief. It is not a "cause of action." What is sought in Count Seven (and Count Eight) is injunctive relief and, as such, it is appropriately part of a Prayer for Relief when the required elements are pled.
For all of the above reasons, the motion to strike Count Seven is granted.
Punitive Damages
The motion to strike the request for punitive damages is denied. Both the CPLA and CUTPA provide for such award. The further claim the plaintiffs have failed to allege "that the defendant acted in reckless disregard of the rights of the plaintiffs or that the defendant acted wantonly" (Memorandum, at 9.) is without merit. The defendant does not accurately cite to Alaimo v. Royer, 188 Conn. 36 (1982) or to C.G.S. § 52-240b. "Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . ." (Emphasis added.) CT Page 3972 Alaimo, 188 Conn., at 42. "Punitive damages may be awarded if the claimant proves . . . (Emphasis added.) C.G.S. § 52-240b. The motion is, therefore, denied.
The court agrees the language "knew or should have known" in Paragraph 20(h) is inappropriate — as is much of the other language contained in that paragraph. The defendant's remedy for the removal of that language is a Request to Revise — not a motion to strike.
The motion to strike Counts Three, Four, Five, and for punitive damages is denied. It is granted as to Count Seven.
Sheedy, J.