DocketNumber: No. CV 95-0469048 S
Citation Numbers: 1996 Conn. Super. Ct. 2705, 16 Conn. L. Rptr. 375
Judges: FINEBERG, J.
Filed Date: 3/13/1996
Status: Non-Precedential
Modified Date: 7/5/2016
The Defendant Chrysler has moved to strike the Third Count on the ground that the CUTPA claims therein set forth "are improper as pled and are precluded by the exclusivity provision of the Product Liability Act, §
A motion to strike tests the legal sufficiency of a pleading. Practice Book § 151; Ferryman v. Groton,
The CPLA is the exclusive remedy for claims falling within its scope. Winslow v. Lewis-Shepard, Inc.,
(b) "Product liability claim" includes 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. "Product liability claim" shall include, but is not limited to, all actions based on the following theories: Strict ability CT Page 2707 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.
Section
The parties acknowledge that this issue of whether a CUTPA claim may be pleaded in conjunction with a CPLA claim has not as yet been addressed by the Connecticut appeals courts. Further, the parties agree that there is a split of authority among the Superior Courts that have addressed this issue, where three prevailing views have been expressed. The first view is to strike the CUTPA count as barred by the CPLA. The second view is to permit both the CUTPA and CPLA claims to stand irrespective of how pleaded. The third view applies a "functional analysis" test.
Courts adopting the preclusionary first view cite to the language of CPLA §
Courts adopting the permissive second view have held that the CPLA does not bar an action under CUTPA because both statutes seek to compensate for different types of harms. This view holds that the CPLA redresses harm caused from defective products, and while the CUTPA redresses harm from unfair or deceptive business practices. See, e.g.: Cunningham v. Chainsaws Unlimited, Inc., 4 Conn, L. Rptr. 506 (September 11, 1991, Susco, J.); Skerritt v.Sandoz Nutrition Corporation, judicial district of New Haven, Docket No. 305253 (March 26, 1991, Berdon, J.).
The "functional analysis" third view holds that the CPLA precludes any claim that is "basically co-extensive with" or "functionally identical to" a simultaneously pleaded product liability claim. This view involves an analysis of the subject CT Page 2708 pleadings. See, e.g.: Palmieri v. Hi-Way Campers Inc.,
The "functional analysis" test recognizes the distinction between the issues of manufacture, design and marketing addressed by the CPLA and the issues of conduct addressed by CUTPA, while at the same time acknowledging the exclusivity of the CLPA where warranted. This Court will adopt the "functional analysis" test, and apply it to the counts here in issue.
The factual bases for the CUTPA allegations set forth in the Third Count are identical to those in the CPLA First Count. The specifications of CPLA violation are alleged in Paragraph 8a-h of the First Count. These run the gamut of claims within the purview of CPLA §
The specifications of CUTPA violation are set forth in Paragraph 7a-j of the Third Count. Subparagraphs a-h are identical to the foregoing corresponding Subparagraphs a-h of Paragraph 8 of the First Count. The only difference in specifications between the two counts is the addition of Subparagraphs i and j in the CUTPA count. Subparagraphs i and j state in full:
i. The defendant engaged in misleading advertising of its motor vehicles and misrepresented the nature, characteristic, use, benefits and qualities of the motor vehicle and more specifically its supplemental restraining system.
j. In that the defendant knew or should have known that the representations or CT Page 2709 statements it made regarding the motor vehicle and more specifically its supplemental restraining system were false or misleading or the defendant did not have sufficient information upon which a reasonable belief in the truth of the representation could be based.
These additional allegations restate claims of misrepresentation, negligence and duty to warn and disclose, all within the purview of a "product liability claim" as defined in §
The motion to strike the Third Count should be granted. Since the claim for attorney's fees against Chrysler is dependent upon the Third Count, it too should be stricken.
The motion to strike is granted.