DocketNumber: No. CV 97 0073322 S
Citation Numbers: 1999 Conn. Super. Ct. 9717, 25 Conn. L. Rptr. 162
Judges: FRAZZINI, JUDGE.
Filed Date: 7/26/1999
Status: Non-Precedential
Modified Date: 4/17/2021
Plaintiff Vincent Ives owns a gas station and garage in Washington, Connecticut. He claims that a socket he purchased from the defendant Michael Bowe broke and injured him. He also claims that the defendant NMTC, Inc., either manufactured the socket or distributed it to Bowe. The first count of the amended complaint dated March 25, 1999, is brought under the Product Liability Act and alleges that the socket was defective and unreasonably dangerous when sold. The second and third counts, seeking damages under Connecticut Unfair Trade Practices Act, sections 42-100a et seq. of the General Statutes ("CUTPA"), alleges that the socket was sold as a new tool when it was actually used.2
In February 1999 the defendant NMTC filed a third-party complaint seeking indemnification from the manufacturer of the socket, White Industrial Tool Inc. ("White")3 White's motion to strike under consideration here claims that the exclusivity provision of the Product Liability Act bars indemnification claims brought under theories of active-passive negligence (second count of third-party complaint), breach of warranty of merchantability under General Statutes section
"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. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint CT Page 9719 most favorably to the plaintiff." (Internal quotation marks omitted.) Novametrix Medical Systems, Inc. v. BOC Group. Inc.,
It is undoubtedly true that "our products liability statute, General Statutes
The court in Malerba specifically permitted a product liability defendant to bring a third-party complaint alleging active-passive negligence; thus the third-party defendant White's motion here to strike the second count of the third-party complaint alleging active-passive negligence must fail. While the court in Malerba did not directly address the exclusivity issue, this court agrees with those lower court decisions that have readMalerba to permit third-party defendants for indemnification actions claiming active-passive negligence. See, e.g., TorringtonCountry Club v. Ply Gen, et al.),
Permitting indemnification claims for active-passive negligence in such actions is entirely logical and consistent with the purposes of the Product Liability Act, moreover. While a seller or distributor originally sued by a plaintiff may, by virtue of the Act's strict liability, be legally responsible to the plaintiff for damages caused by an unreasonably dangerous product, they may nonetheless have had no part in creating or allowing the defects that injured a plaintiff The law of strict liability has removed from consumers the burden of showing fault or negligence on the part of product sellers for sound policy reasons cited many times elsewhere by courts, legislatures, and commentators. As the court recognized in Malerba, there is no reason to prohibit such a "passively negligent" defendant from seeking reimbursement through indemnification from an "actively negligent" manufacturer who is wholly responsible for the defect that injured the plaintiff:
An indemnitee, however, must prove "that the negligence with which it had been found chargeable was passive or secondary, while the indemnitor had been negligent and in a manner which was active and primary." . . . Thus, a finding that a given defendant was liable to the plaintiff does not necessarily determine whether that responsibility was based on a passive negligence which might, therefore, entitle that defendant to a full reimbursement from other defendants based upon indemnification principles.
Malerba v. Cessna Aircraft Co.,
A common law indemnification claim can be based not only on negligence, however, but also, as the court held in Burkert v.Petrol Plus of Naugatuck, Inc.,
The breach of warranty allegations in the third and fourth counts here are that the third-party defendant breached warranties of suitability and merchantability implied pursuant to the Uniform Commercial Code. This court's analysis of the motion to strike is the same for both counts. None of the cases cited by "White directly address the joint applicability of Malerba andBurkert to the present situation. While the court in Jordan v.Yankee Gas Service Co. did strike a breach of warranty count for indemnification based on the Product Liability Act's exclusivity provision, the court there did not consider the holding inBurkert. Since Malerba held that the legislature did not intend to abrogate common law claims for indemnification in product liability cases, this court agrees with those cases allowing such claims based on breach of warranty. See, for example, Gelorminov. J.C. Penney Co. Inc.,
The key to allowing such indemnification claims for breach of warranty lies in the exclusivity statute itself As the Supreme Court has held, "[t]he legislature clearly intended to make our products liability act an exclusive remedy for claims fallingwithin its scope." (Emphasis added.) Winslow v. Lewis-Shepard,Inc.,
That seems to be the only sensible result given the purposes of our Product Liability Act. The act was passed to expedite the handling of the claims of consumers injured by defective products released into the stream of commerce by manufacturers and distributors of that product. Given that purpose and once the adjudication of such a consumer claim has been made what difference does it make for any of the purposes with which the Product Liability Act is concerned that an indemnification claim must be sorted our between manufacturer and distributor of a defective product?
The particular claims for breach of warranty here, for example, derive from Connecticut's adoption of the Uniform Commercial Code's warranties of merchantability and of suitability for a particular purpose. The two Code provisions relied on by NMTC here affect the relationship, rights and obligations between two commercial entities, manufacturer (White) and seller (NMTC). The Code represents a national effort to standardize the law of sales and commerce for manufacturers and merchants alike that we should not assume that the legislature has silently repealed. The purpose of the Product Liability Act, on the other hand, is to protect consumers and users of defective products who are injured by products that are unreasonably dangerous.
This court agrees those cases holding that breach of warranty claims for indemnification by a seller against a manufacturer do not fall under the Product Liability Act but are, rather, claims for commercial losses explicitly exempted by section
"As between commercial parties, commercial loss caused by a product is not harm and may not be recovered by a claimant in a product liability claim. An action for commercial loss caused by a product may be brought only under, and shall be governed by Title 42a, the Uniform Commercial Code."
See, e.g., Thiverge v. Fortress,
As White points out, the term "commercial loss" has not yet been defined by our appellate courts; neither of the views of that term adopted by decisions in the Superior Court, however, compels a different decision here. Even the "narrower" definition of this term articulated by the court in American ManufacturersMutual Ins. Co. v. Harrington Hoists, Inc., 15 CLT 29, (Judicial District of New Haven, June 13, 1989) (Berdon, J.) would seem to include the lost profits that NMTC would incur should it incur liability to the plaintiff. That court's exclusion of claims between commercial parties for "property damage and personal injuries" applied only to claims made by the commercial entities themselves for such damages, not to a commercial party's claim that it might suffer consequential commercial loss because it had to pay a judgment awarded under the Product Liability Act for personal injuries suffered by a consumer.
White claims, however, that the prospect of future lost profits because of a possible judgment does not establish "commercial loss" and relies on the holding in Lopez v. GeneralMotors Corp. ,
General Statutes
52-102a (a), which authorizes the impleading of third parties by a defendant in a civil action without such preconditions. This latter provision states in relevant part: "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plains claim against him."
This court rejects third-party defendant White's argument CT Page 9724 that the defendant must choose between claiming indemnification either under the Product Liability Act or the Uniform Commercial Code. The courts have long allowed the pleading of claims, to the extent that they may be inconsistent, in the alternative. Any suggestion that defendant must file indemnification claims under the Uniform Commercial Code in a separate action because the exclusivity provisions of the Product Liability Act bar those claims here would ignore those considerations of judicial economy that call for trying these claims, having a common factual core, together. The motion to strike the third and fourth counts is, therefore, denied.
Accordingly, the motion to strike is denied.
STEPHEN F. FRAZZINI, JUDGE