Opinion
CV186098398S
01-02-2020
Abdul Valiula v. Driving Range 349 Main Street, LLC et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.T.R.
MEMORANDUM OF DECISION ON MOTION TO STRIKE
ROBERT SHAPIRO JUDGE TRIAL REFEREE
This matter is before the court concerning the third-party defendant, Amusement Products, LLC’s (Amusement Products) August 19, 2019 motion to strike (#119) the defendant/third-party plaintiff, Driving Range 349 Main Street LLC’s (Driving Range), single-count, third-party complaint. On October 23, 2019, Driving Range filed its objection to the motion to strike and a memorandum in support. On October 30, 2019, Amusement Products filed its reply. Oral argument was heard on November 4, 2019.
I
Background
This case arises out of a claim by the plaintiff Abdul Valiula (plaintiff) for personal injuries he allegedly suffered on June 20, 2018, when the wheel of the go-kart in which he was driving came loose, causing the go-kart to flip over and land on top of him. The plaintiff commenced a civil action against Driving Range. In the plaintiff’s complaint, he alleges that he sustained serious and debilitating injuries, including injuries to his left and right arms and wrists, and a fracture of his left elbow, some or all of which are likely to be permanent in nature, as a result of the defendant’s negligence. See Pl. Compl. ¶7.
On May 23, 2019, Driving Range filed a third-party complaint against Amusement Products alleging the following. Amusement Products is the manufacturer and seller of the go-kart at issue; it was aware of how Driving Range planned to use the go-karts; and, the wheel that allegedly caused the plaintiff’s injuries became loose due to either a manufacturing defect and/or a design defect. Driving Range also alleges that, pursuant to The Connecticut Product Liability Act (CPLA), General Statutes § 52-572o, et seq, Amusement Products is liable for plaintiff’s claimed injuries. See Third-Party Compl. ¶¶15-16.
General Statutes § 52-572o provides: "(a) In any claim under sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant. (b) In any claim involving comparative responsibility, the court may instruct the jury to give answers to special interrogatories, or if there is no jury, the court may make its own findings, indicating (1) the amount of damages each claimant would receive if comparative responsibility were disregarded, and (2) the percentage of responsibility allocated to each party, including the claimant, as compared with the combined responsibility of all parties to the action. For this purpose, the court may decide that it is appropriate to treat two or more persons as a single party. (c) In determining the percentage of responsibility, the trier of fact shall consider, on a comparative basis, both the nature and quality of the conduct of the party. (d) The court shall determine the award for each claimant according to these findings and shall enter judgment against parties liable on the basis of the common law joint and several liability of joint tortfeasors. The judgment shall also specify the proportionate amount of damages allocated against each party liable, according to the percentage of responsibility established for such party. (e) If a judgment has been rendered, any action for contribution must be brought within one year after the judgment becomes final. If no judgment has been rendered, the person bringing the action for contribution either must have (1) discharged by payment the common liability within the period of the statute of limitations applicable to the right of action of the claimant against him and commenced the action for contribution within one year after payment, or (2) agreed while action was pending to discharge the common liability and, within one year after the agreement, have paid the liability and brought an action for contribution."
Amusement Products seeks to strike Driving Range’s third-party complaint on the ground that it failed to state a cause of action upon which relief can be granted because third-party claims for indemnification are not permitted under the CPLA.
II
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). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] 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 ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
"A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
Amusement Products argues that Driving Range’s third-party complaint fails to state a cause of action because third-party claims for indemnification or apportionment under the CPLA and Connecticut law are permitted in limited circumstances, none of which are present in this situation. Driving Range counters that there is no restriction on the ability of a non-seller to bring a claim for common-law indemnification as a claimant under the CPLA.
The court notes that, at oral argument, Driving Range conceded that it is solely proceeding on a theory of common-law indemnification. Therefore, the court will only focus on the claim for common-law indemnification and will not address any additional arguments.
Pursuant to General Statutes § 52-577a(b), only a product seller, as is defined in § 52-572m(a), may implead a third party in a products liability claim. A "product seller" is defined as "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. The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products." General Statutes § 52-572m(a).
The Supreme Court, in Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000) (Allard), stated: "It is now beyond dispute that [the CPLA] provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common-law causes of action for the same claim." (Internal quotation marks omitted.)
Here, Driving Range is seeking indemnification from Amusement Products based on the sale, manufacturing and/or design defect of the product. Its third-party complaint is based entirely on the CPLA, not common-law principles. Therefore, the claim is premised on the CPLA. The CPLA limits indemnity relief to product sellers and Driving Range has failed to allege in its third-party complaint that it is a "product seller" within the meaning of § 52-572m(a). "Driving Range is the owner and operator of a recreational facility ... [which] operates] electric go-karts around a monitored go-kart track." Third-Party Compl. ¶1. The third-party complaint alleges that Driving Range is in the business of operating electric go-karts, not selling them. Therefore, Driving Range is clearly not a "product seller" within the meaning of the CPLA and cannot implead Amusement Products pursuant to the terms of the Act. Driving Range cannot ground a third-party complaint in products liability, and then seek relief from the court through a claim for common-law indemnification.
Moreover, Driving Range’s argument that common-law indemnification claims are not abrogated by the CPLA is unavailing because it is not a "product seller." In support of its proposition, Driving Range cites to Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989). In Malerba, the plaintiff filed an action under the CPLA and as a result, the Supreme Court permitted the defendant, a product seller as defined by § 52-572m(a), to file a claim for common-law indemnification under the CPLA against a third-party defendant. As discussed above, Driving Range is not a product seller and therefore the court’s decision in Malerba is not applicable.
Other courts have held that only product sellers may file claims for common-law indemnification against a third party defendant under the CPLA. See Ewers v. Big Y Foods, Inc., Superior Court, judicial district of New London, Docket No. CV-16-60227847-S (January 9, 2018, Frechette, J.) (granting a third-party defendant’s motion to strike where the defendant has not alleged it was a product seller under the CPLA); Davey v. Professional Props. II, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-06-5004272-S (March 20, 2009, Eveleigh, J.) (citing Allard; granting a third-party defendant’s motion for summary judgment where the allegations of negligence fell within the purview of the CPLA and the defendant was not a product seller).
CONCLUSION
For the foregoing reasons, the motion to strike the third-party complaint is granted.