Zarikos v. Signature Bldgs. Sys.

Full title: ANTONIOS ZARIKOS ET AL. v. SIGNATURE BUILDING SYSTEMS, INC

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford

Date published: Mar 24, 2009

2009 Ct. Sup. 5846 (Conn. Super. Ct. 2009)

Opinion

No. X-08-CV04-4000284S

March 24, 2009

Memorandum of Decision on Motion to Strike (No. 152)

ALFRED J. JENNNINGS, JR., JUDGE.

Procedural and Factual Background

This case is brought by the plaintiff homeowners against Signature Building Systems, Inc. ("Signature"), the manufacturer of their prefabricated modular home which was erected in 2002 on a lot in New Canaan by a non-party construction company, Luongo Construction Co., LLC. ("Luongo"). The plaintiffs are not the first owners of the home. They bought the partially constructed home and the lot on which it is situated in July of 2002 from the original owners Joseph and Diane Mannetti, who were the purchasers of the eight modules from Signature and the parties who originally contracted with Luongo Construction to assemble and erect the modular home at the site.¹ After, and even before, moving into the home in January 2004 the plaintiffs discovered significant structural and functional problems with the home for which they seek redress in this action.

1 The plaintiffs have also sued the Mannettis and Luongo Construction in a separate action pending in this court: Zarikos v. Mannetti et al., Docket No. X08-CV-03-0196069S. The case is reported by counsel to have been stayed due to a bankruptcy petition filed by Luongo Construction.

The case is brought against Signature in eight counts. The First Count states a claim for product defect under the Connecticut Products Liability Act, Conn. Gen. Stat. § 52-572m et seq., by alleging that the modules and associated hardware and other parts were a "product" and Signature was a "product seller" and a "manufacturer" under CPLA and that the modules were "defective" in that they were too large, not installed properly, improperly cut or drilled, lacking certain "bearing walls" and fire stopping and unaccompanied by adequate warnings and instructions. The Second Count is a "CUTPA" (Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a, et seq.) claim charging Signature with deceptive and unfair trade practices in that the alleged defects to the home are violations of the Connecticut State Building Code. The Third Count incorporates the allegations of the First Count and alleges that Signature thereby acted in reckless disregard of the safety of plaintiffs and their children. The Fourth Count alleges common-law negligence of Signature "in that it failed to use reasonable care in manufacturing and selling the defective modules, and in failing to provide adequate instructions and warnings . . ." The Fifth Count alleges negligence per se in that the defects in the Signature models amount to violations of the Connecticut State Building Code. The Sixth, Seventh, and Eighth counts are premised on the acts and omissions of non-party Luongo Construction for which it is alleged that Signature is vicariously liable on a theory of agency. The Sixth Count alleges negligence of Luongo; the Seventh Count negligent infliction of emotional distress by Luongo; and the eighth Count CUTPA violations by Luongo, all by incorporating claims of improper and defective assembly of the Signature modules in the erection of the home.

Now before the court is defendant Signature's motion pursuant the Practice Book § 10-39(a)(4)² to strike the Second though the Eighth Counts of the Revised Complaint on the ground that, the First Count being a CPLA claim, all the other counts are in violation of the exclusive remedy provision of CPLA, Conn. Gen. Stat. § 52-572n(a). The motion to strike alternatively challenges the sufficiency of the allegations of the Second Count to state a CUTPA cause of action against Signature, seeks to strike the Sixth through Eighth Counts for failure to join the Mannettis and Luongo Construction as indispensable parties, and seeks to strike the Eighth Count "as it appears to be directed at Luongo Construction, and not Signature." Because the court agrees that the Second through the Eighth Counts violate the statutory exclusivity of the product liability claim of the First Count, it will not be necessary to discuss those alternate grounds of the motion.

2 Section 10-39(a)(4) authorizes a motion to strike the portions of a complaint which represent ". . . the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts . . ."

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 (2003). "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 (2007). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited, however, to a consideration of the facts alleged in the complaint." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, cert. denied, 273 Conn. 916, (2005). "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 necessarily implied from the allegations are taken as admitted." Violano v. Fernandez, 280 Conn. 310, 907 A.2d 1188 (2006). "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 in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party] has stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner, 240 Conn. at 580. "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Hollister v. Thomas, 110 Conn.App. 692, 698 (2008).

Product Liability Act/Exclusivity

The Connecticut Product Liability Act, Conn. Gen. Stat. § 52-572(m) et seq., ("CPLA") became effective on October 1, 1979. Elliot v. Sears Roebuck and Co., 229 Conn. 500, 505 n. 6, (1994). "In adopting the act, the legislature intended to incorporate in a single cause of action an exclusive remedy for all claims falling within its scope . . . In doing so, the legislature was merely recasting an existing cause of action and was not creating a wholly new right for claimants harmed by a product." (Citations omitted; internal quotation marks omitted.) Id. at 504-05. "The intent of the legislature was to eliminate the complex pleading provided at common law." Id. "A claim may be asserted successfully under [CPLA] not withstanding the claimant did not buy the product from or enter into any contractual relationship with the product seller." Conn. Gen. Stat. § 52-572n(b). "`Product seller' means 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." Conn. Gen. Stat. § 52-572m(a). A "product liability claim" is defined as "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." Conn. Gen. Stat. § 52-572m(b). A `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 non-disclosure, whether negligent or innocent." Conn. Gen. Stat. § 52-572m(b).

This motion to strike implicates the exclusive remedy provision of CPLA: "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." Conn. Gen. Stat § 52-572n(a). "It is now beyond dispute that this provision 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." Mazurek v. Great American Insurance Co., 284 Conn. 16, 27 (2007). "[T]he CPLA exclusivity provision [General Statutes § 52-572n(a)] makes the Act the exclusive means by which a party may secure a remedy for an injury caused by a defective product." Hurley v. Heart Physicians, P.C., 278 Conn. 305, 324, (2006), citing Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120 (2003). In opposition to this motion to strike the plaintiffs have cited several pre- Gerrity Superior Court decisions which construed § 52-572n(a) as a ban on recovery on both CPLA and other theories, but permitted alternative pleading³ on CPLA and common law or other statutory counts to survive a motion to strike. See, e.g. Fusaro v. Waldbaum, Inc., Docket No. 74280, Superior Court, Judicial district of Middlesex at Middletown (August 2, 1995, Arena, J. ( 1995 WL 476575 (Conn.Super.)) where the court denied a motion to strike a negligence count pleaded alternatively to two CPLA counts ("At this stage of the proceedings, however, the court has insufficient facts before it to conclusively determine the issues of whether [the defendant] is a `product seller' under the Act and whether the injuries allegedly sustained by the plaintiff were caused by a `product'".) Gerrity, however, puts the focus squarely on the case as pleaded. "Given this contextual framework [of CPLA] we conclude that a product liability claim under the act is one that seeks to recover damages for personal injuries . . . or for property damages, including damage to the product itself, caused by the defective product." (Emphasis added.) Gerrity, at 128. "We conclude that plaintiff's CUTPA claim may be asserted in conjunction with the product liability act claim. We reach this conclusion based on the following analysis of the plaintiff's second amended complaint." (Emphasis added.) Id., 129. Likewise, the Hurley court, which had before it an extensive factual record on the Superior Court ruling on a motion for summary judgment, nonetheless found that the CUPTA count in that case was banned by the CPLA exclusivity rule "[a]fter reviewing carefully the allegations in the plaintiffs' CUTPA count . . ." Hurley, at 326.⁴ The plaintiffs argue that they should not be put to the dilemma of gambling their entire case on the outcome of the determination of whether or not the modules in question are "products" for purposes of CPLA by pleading solely a product liability claim or solely non-product liability claims. Aside from the fact that-in this court's opinion — our legislature⁵ and our Supreme Court have put that burden on a pleading party (subject, of course, to our liberal rules on amendments), the argument rings hollow in a case such as this where the challenged counts are set forth in a second revised complaint filed more than four years after this case was commenced and some six years after the construction and assembly of the modular home.

3 Practice Book § 10-25 provides: "The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action."

4 This focus on allegations of the pleadings, rather than any determination of facts or conclusion of law, moots the discussion at oral argument which resulted in counsel for defendant Signature stipulating that Signature was a "product seller" for purposes of CPLA. The fact that plaintiffs have alleged "product seller" status (First Count, ¶ 5) sufficiently casts the First Count as a product liability count.

5 It was the intent of the legislature in enacting CPLA ". . . to cut down the number of counts in a complaint for injuries caused by a product." Testimony of Senator Salvatore C. DePiano, as quoted by the Supreme Court in Gerrity, 263 Conn. at 128.

The Gerrity test of product liability exclusivity was stated by the Supreme Court as follows:

Therefore, the language of the exclusivity provision makes clear that the product liability act 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, . . . 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. Gerrity, at 128.

The issues raised by this motion, therefore, are whether or not each of the Second through Eighth Counts, as pleaded by the plaintiffs, "seeks recompense for injuries caused by a product defect" and, if so, whether or not the plaintiffs are pursuing a claim for "personal injury, death or property damage." It is clear to the court that all the challenged counts other than the seventh seek compensation for "property damage" as defined under CPLA. Exclusivity under § 52-572n(a) bans all other claims against product sellers ". . . for harm caused by a product." "Harm" is defined in § 52-572m(d) as including "damage to property, including the product itself, and personal injuries . . ." Here each of the challenged counts other than the seventh seek damages for "repair costs" to remedy the alleged defects to the modular home — the "product itself." Plaintiffs in the Second Count also seek relocation expenses which are consequential to the claim of damage to the home itself. The Seventh Count seeks damages for alleged emotional distress allegedly caused to the plaintiffs and their children because of fear of alleged fire danger at the home because of the alleged defects. The court considers this claim as a claim for "personal injuries"⁶ which is included in the above definition of "harm." All of the challenged counts therefore seek damages for "harm" covered by CPLA. There is nothing akin to the "financial injury" (being forced to pay a higher price for cigarettes because of the defendants' deceptive course of conduct) which the Supreme Court in Gerrity found to be something more than and different from a claim of personal injury or property damage. Gerrity, 130-31. The remaining issue is therefore whether or not the harm alleged in each challenged count is claimed to be "caused by a product defect," which calls for a count by count review.

6 Under Connecticut law one of elements of a claim of negligent infliction of emotional distress is "that the defendant should have realized an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily injury." Civil Jury Instructions, Connecticut Judicial Branch § 3.12-2, citing Larobina v. McDonald, 274 Conn. 394, 410 (2005). Recognizing this requirement, the plaintiffs have alleged in ¶ 32 of the Seventh Count that the emotional distress they are claiming "was severe enough that it might result in illness or bodily harm."

Second and Eighth Counts (CUTPA)

These counts can be considered together. Although the Second Count claims direct liability of Signature for its alleged deceptive and unfair trade practices and the Eighth Count claims vicarious liability of Signature for alleged deceptive and unfair trade practices of Luongo as the alleged agent of Signature, it is the nature of the alleged delict, not the theory of responsibility, which determines CPLA exclusivity. "If, however, a party brings a CUTPA claim and seeks to use that statutory scheme when the claim is, in reality, one falling within the scope of the product liability act, then the exclusivity provision applies." Gerrity, 129. The allegations of unfair or deceptive practices in the Second Count are incorporated from the product defect allegations of the First Count (the CPLA count). Plaintiffs suggest that their Second Count is based on conduct of the defendant Signature rather than product defect. But the "conduct" alleged is the failure to provide warnings or instructions (¶¶ 7, 8, and 9 as incorporated from the First Count). Claims relating to ". . . failure to discharge a duty to warn or instruct" is expressly within the statutory definition of a product liability claim. CPLA § 52-572m(b). Plaintiffs at oral argument contended that the Second Count cannot be a claim within the scope of CPLA because they very carefully avoided incorporating into the second Count the allegation of ¶ 5 of the First Count, alleging that Signature is a "product seller" and a "manufacturer" under CPLA. But even without those allegations the Second Count is clearly based exclusively on product defect claims and is not based on any claims outside the scope of CPLA. In this court's opinion the Second Count is ". . . nothing more than a product liability claim dressed in the robes of CUTPA." Gerrity, 129.

Although the Eighth Count does not expressly incorporate the allegations of the Second Count and it has the added aspect of alleged vicarious liability by agency, it is grounded in substance on alleged defects in the assembly and erection of the modular home (gaps between the modules; lack of fire stopping materials) which are within the definition of a "Product Liability Claim" under CPLA § 52-572m(b). There are no allegations of the Eighth Count outside the scope of CPLA.

For these reason the two CUTPA counts (Second and Eighth Counts) are stricken.

Third Count (Common-Law Recklessness)

The Third Count simply incorporates by way of the Second Count the product liability claims of the First Count and adds only conclusory allegations of recklessness. The claim stated is clearly a product liability claim and it falls within the exclusivity provision of CPLA. The Third Count is therefore stricken.

Fourth Count (Common-Law Negligence)

The Fourth Count incorporates paragraphs 1 through 7 of the Second Count which are all taken verbatim from the First Count (Product Liability), and tacks on a conclusive allegation of negligence. There are no different or additional allegations which would state a claim outside of CPLA. CPLA expressly provides that a product liability claim shall include claims of negligence. § 52-572m(b). The Fourth Count is also governed by the exclusivity provision of CPLA and is stricken.

Fifth Count (Negligence Per Se)

The substantive allegations of the Fifth Count come from the Second Count which come from the First Count (Product Liability), with the additional allegation of ¶ 8 that those "defects" violate certain enumerated provisions of the Connecticut State Building Code. There are no claims outside the scope of CPLA or which are not based on a claim of product defect. The Fifth Count is also covered by the CPLA rule of exclusivity and is stricken.

Sixth Count (Negligence of Luongo)

This count claims the negligence of Luongo as the alleged agent of Signature. The allegations of negligence all relate to claimed failures and shortcomings of Luongo in the erection and assembly of the Signature modules in setting up the modular home. But "`Product Liability Claim' includes all claims or actions brought for personal injury, death or property damage caused by the . . . preparation, assembly, installation . . . of any product" and "`Product Liability Claim' shall include, but is not limited to, all actions based on the following theories: . . . negligence . . ." CPLA § 52-572m(b). This count must also be stricken under the CPLA exclusivity provision.

Seventh Count (Negligent Infliction of Emotional Distress)

The liability allegations of this count are all based on the same allegations as the Eighth Count (gaps between the modules and lack of fire stopping material). The fact that these are product defect claims is evident from the plaintiff's repeated use of the word "defects" in this count, such as: ". . . gaps between Modules, and other construction defects" (¶ 23); ". . . improper assembly of the Home would cause it to contain numerous defects including, but not limited to, gaps, that, if not filled with fire stopping material would pose a danger . . ." (¶ 27); and ". . . improper assembly of the modules would result in . . . construction of the Home with numerous defects . . ." This count is a claim based on product defect and not based on any allegation that is outside the scope of CPLA, and it therefore must be stricken under the exclusivity provision of CPLA.

Order

The defendant's motion to strike the Second through Eighth Counts of the Revised Complaint is granted.

So Ordered.