DocketNumber: No. CV 97-0575612
Citation Numbers: 1999 Conn. Super. Ct. 13641
Judges: MULCAHY, JUDGE.
Filed Date: 10/7/1999
Status: Non-Precedential
Modified Date: 4/18/2021
The operative complaint contains eight counts, four of which are pleaded as class action counts against two defendants, Raymond Crane, Jr. (Crane) and the Ray Crane Construction Company (Crane Construction) (collectively "the defendants"). The four class action counts allege negligence (count five), reckless conduct (count six), breach of contract (count seven), and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §
The facts alleged in the class action counts are essentially as follows. The plaintiffs are all residents of Connecticut who own or inhabit buildings containing potable water systems installed by the defendants over three years prior to this action. On January 3, 1997, the Department of Consumer Protection initiated administrative proceedings against the defendant Crane. The Department claimed that solder containing greater than 0.2 percent lead was used in violation of General Statutes §
An administrative determination found that Crane violated statutory and regulatory provisions. Crane provided the Department with a list of properties where Crane had installed or repaired water systems since 1993. The complaint alleges that the class action plaintiffs include persons on said list and persons who have consumed water from potable water systems on said list, including the representative plaintiffs, the Maltagliatis.2
Count five alleges that the defendants' use of solder containing lead in excess of 0.2 percent in the plaintiffs' buildings, in violation of General Statutes §
The plaintiffs reclaimed for oral argument an earlier motion CT Page 13643 for class certification. The plaintiffs initially filed this motion on August 31, 1998, and the defendants filed an objection thereto on October 1, 1998. This court conducted a hearing on the motion for class certification. The plaintiffs then filed a supplement to their motion for class certification, to which the defendants responded by filing a further objection. An additional hearing on the class certification motion (and the supplement thereto) was scheduled as an arguable matter on the June 21, 1999 short calendar; on that date, the parties appeared and counsel were granted leave to file additional documentation relative to the class certification issue, if they wished to do so. The defendants then filed an additional objection (File #152) (with legal and factual arguments) to the plaintiffs' motions for class certification, and its supplement, on July 20, 1999 (the last filing with regard to the class certification issue).
"The plaintiff bears the heavy burden of establishing that each requirement of the rule is met. . . . Although a trial court must undertake a rigorous analysis to determine whether the plaintiff has borne this burden successfully it has broad discretion in determining whether a suit should proceed as a class action." (Citations omitted.) Arduini v. Automobile Ins.CT Page 13644Co. of Hartford, Connecticut,
"Because rule 23 of the Federal Rules of Civil Procedure is substantially similar to Practice Book §§ [
Numerosity
The first requirement is that the proposed class be "so numerous that joinder of all members is impracticable." Practice Book §
"A conclusory allegation that joinder is impractical, or speculation about the size of the class, will not suffice to meet the requirement." Arduini v. Automobile Ins. Co. of Hartford,Connecticut, supra,
The defendants contend that plaintiffs' allegations relating to the size of the class are exaggerated. Plaintiffs allege that the class consists of the 118 homeowners on the list submitted to the Department of Consumer Protection of past or present owners of buildings on which Crane or Crane Construction worked since 1993. Defendants argue that because the claims asserted in the class action counts are based on a violation of the 0.2 percent lead limit under General Statutes §
Defendants' argument seems to implicate the merits of the litigation. Whether each class member establishes that defendants used solder with more than 0.2 percent lead on his or her property would present a disputed issue of fact. "[W]hether a class action is proper does not depend on the merits of the litigation. There will almost invariably be disputed questions of fact or law on the merits."4 (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., supra,
Understandably, defendants have not argued that a proposed class size of 118 would be too small to meet the test for certification. But, plaintiffs have not established that joinder necessarily would be impracticable. They have alleged that 118 property owners are possibly class members, and have attached to their motion the list of the 118 properties with respect to which the defendants have performed plumbing since 1993. They have not produced evidence that any appreciable number of these property owners are interested in pursuing a class action. See Kohn v.American Housing Foundation, Inc.,
Even assuming that a sunstantial number of the homeowners on the list would have an interest in joining the class, such may not constitute so great a number that joinder would necessarily be impracticable, absent other considerations. See, e.g., In reAnthracite Coal Antitrust Litigation,
Commonality
"[C]ommonality is satisfied where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." Marr v. WMX Technologies, Inc., supra,
Plaintiffs' complaint includes a class action count under CUTPA. One of the issues central to a CUTPA claim is whether the defendants engaged in an unfair or deceptive practice. Resolution of this issue is central to the CUTPA claim of each individual class member. See Walsh v. National Safety Associates, Inc.,
CT Page 13648
Issues of damages unique to certain class members do not defeat commonality. Marr v. WMX Technologies, Inc., supra,
Typicality
"The third requirement, typicality, is similar to commonality. Typicality is satisfied when the representative party's claim arises out of the same event or practice that gives rise to the claims of the class members and is based on the same legal or remedial theory." (Internal quotation marks omitted.)Walsh v. National Safety Associates, Inc., supra,
The defendants contend that the Maltagliatis' claim is not typical because solder samples from their home have not tested positive for having greater than 0.2 percent lead. However, that argument relates to the merits of the case. "[T]here is a distinction between identifying issues that the case will present for the purpose of deciding if class action status is warranted and deciding those issues on their merits." Walsh v. NationalSafety Associates, Inc., supra,
The defendants also note that the Maltagliatis, unlike the other members of the proposed class, refused to permit the Department of Consumer Protection to implement corrective measures with respect to the plumbing done by Crane in their home. However, that circumstances does not alter the reality that CT Page 13649 the Maltagliatis' claim arises from the same pattern of events — the defendants' alleged use of solder with excessive lead — that gives rise to the claims of the class in general. "When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims." Robidoux v. Celani,
Adequacy
"Adequacy, the fourth and final requirement of Practice Book §
"The issue of whether the plaintiff and his attorney will fairly and adequately protect the interests of the class has due process ramifications. As expressed by one court, `[t]he potential res judicata, or at least collateral estoppel effect of any judgment in the [class] action makes it imperative that the absent members on whom it works will not be deprived of their day in court.' Harriss v. Pan American World Airways, Inc.,
The defendants do not question the competence or diligence of counsel with respect to representing a certified class; the court is familiar with the outstanding professional qualifications and experience of counsel, and considers him a particularly able advocate to promote the interests of members of the proposed class. The defendants, however, emphasize that the Maltagliatis,on advice of counsel, refused to permit the Department of Consumer Protection to implement remedial measures on their home. It is my opinion, that advising the Maltagliatis regarding remediation offered by the Department bears only remotely, if at all, on counsel's adequacy to effectively represent class CT Page 13650 members. This motion for class certification should not be denied on that basis.
The second prong of this requirement relates to the adequacy of the Maltagliatis as class representatives. The plaintiffs must be members of the class they seek to represent. See Fetterman v.University of Connecticut,
The plaintiffs allege that they are members of the putative class. There is conflicting evidence as to whether Crane or Crane Construction used solder with excessive lead in the Maltagliatis' home. As previously indicated, whether the Maltagliatis ultimately prove that illegal solder was used on their property is a question relating to the merits which the court need not resolve at this time. In my view, the Maltagliatis have sufficiently demonstrated, for present purposes, that they are members of the proposed class.
The class representative may not have interests that are in conflict with the class as a whole. See, e.g., Walsh v. NationalSafety Associates. Inc., supra,
Predominance
The plaintiffs must demonstrate that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members . . . ." Practice Book §
In arguing that the questions common to the entire proposed class predominate, plaintiffs identify the issues of whether the defendants breached contracts with the class members, whether the defendants acted negligently and/or recklessly, and whether they violated CUTPA by using solder with excessive lead. The plaintiffs argue, with respect to the four counts, that issues of liability common to the entire class turn primarily on questions pertaining to the established practices of the defendants in using solder with excessive lead. It is this single course of conduct, plaintiffs contend, that forms the basis for this action.
Defendants assert that most of the broad issues identified by the plaintiffs as being common, upon analysis, give rise to several issues which are entirely individual in nature. Such individual issues include whether Crane used solder with excessive lead on each class member's property, when such solder was used, whether such solder was later removed, whether anyone else worked on each home's water system, and whether such other persons used solder with excessive lead.
While central issues may be common to the entire class, it would seem that the resolution of those issues will involve evidence unique to each member of the proposed class. "When the resolution of a common legal issue is dependent upon factual determinations that will be different for each purported class plaintiff . . . courts have consistently refused to find commonality and have declined to certify a class action." LibertyLincoln-Mercury, Inc. v. Ford Marketing Corp.,
While the plaintiffs characterize the cause of each class member's damage as the defendants' "course of conduct," the harm allegedly caused each member of the proposed class resulted from some separate, distinct act or incident involving these defendants. The class members were not all injured as a result of one single act or event. See Kohn v. American Housing Foundation,Inc., supra,
Similarly, in Hum v. Dericks, supra, the plaintiffs alleged that the defendant implanted defective artificial ligaments within each plaintiff. The plaintiffs argued that common issues predominated over individual issues on the basis that each plaintiff's injury resulted from the defendant's course ofconduct. The court disagreed and held that while the defendant's actions could be described as a single course of conduct, the alleged injuries each resulted from separate acts. Although the action included a claim of unfair and deceptive trade acts and practices based on the defendant's course of conduct, the court, nevertheless, concluded that the plaintiffs had not satisfied the predominance requirement and declined to certify the proposed class.
Plaintiffs' argument minimizes the nexus between the claimed misconduct and the resulting harm. Each plaintiff did not suffer harm stemming from the same incident, at least with respect to the counts sounding in negligence, reckless disregard, and breach of contract. This case can be distinguished from those in which the same conduct caused all of the alleged injuries. See, e.g.,Sterling v. Velsicol Chemical Corp.,
The distinction is illustrated by two Superior Court decisions: Riggi v. Milford, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 047677 (March 29, 1995), and Tibbetts v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 153184 (February 27, 1997). The complaint in Riggi alleged that the defendant, the city of Milford, improperly overassessed each of the plaintiffs' properties in violation of General Statutes §
In Tibbetts v. Greenwich the Superior Court granted certification to a class of homeowners who alleged that the defendant, the town of Greenwich, had employed an improper method in assessing their properties, resulting in an overassessment. See Tibbetts v. Greenwich, supra,
Here, other issues identified by the plaintiffs, such as whether the defendants were negligent or reckless and whether the defendants breached contracts with the plaintiffs, are not entirely common to the entire class. Whether an issue is "common" does not merely depend on whether each class member must answer a similar question in order to establish his or her claim. Rather, the idea of commonality rests largely on whether that question can be resolved in a singular manner with respect to the entire class. See, e.g., Sterling v. Velsicol Chemical Corp., supra, 855 F.2d 1197 (stating that class action adjudication is appropriate in tort cases where a common set of facts is alleged to have caused the harm complained of, since resolution of the issue in a single inquiry "[avoids] duplication of judicial effort and [prevents] separate actions from reaching inconsistent results CT Page 13654 with similar, if not identical, facts"); cf. General TelephoneCo. of the Southwest v. Falcon,
The claims based upon negligence, recklessness, and breach of contract do not involve entirely common issues with respect to liability. Determination of whether the defendants are liable to each class member will involve an individualized inquiry. Each individual class member will need to establish that illegal solder was used on a potable water system in his or her property, and each class member will need to show that such use caused damage. Furthermore, because this action includes a claim based on negligence per se, each class member will have to establish than the injury he or she suffered is of the type General Statutes §
Also, as defendants point out, plaintiffs' class action negligence count includes an allegation that the defendants' conduct caused personal injuries to the minor children of the plaintiffs. With respect to claims for personal injuries, the causation inquiry would be unique for each individual claimant. See Parker v. Richardson Merrell Co., supra, (noting that in tort cases, class actions are often inappropriate in light of the numerous individual determinations necessary to each plaintiff's proof of liability). Each claimant would need to show that any claimed injury was caused by lead rather than something else. The causation issue would involve evidence concerning any possible exposure to lead other than that contained in the claimant's potable water system. See Reilly v. Gould, Inc.,
At this point, only the Maltagliatis have claimed that their minor children have sustained personal injuries from drinking water from their potable water system. However, the negligence count also includes a general allegation that the members of the proposed class suffered emotional distress. Establishing liability for emotional distress can only be accomplished through evidence particular to each person involved. See, e.g., D'Amicov. Sitmar Cruises, Inc.,
It is my view that plaintiffs have not met their burden of establishing that issues common to the entire class predominate over issues that affect only individual class members. Proof of liability will involve a series of individualized factual determinations. On the basis of the aforesaid, it is concluded that questions common to the putative class do not predominate.
Superiority
The final requirement for class certification is that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. "Where . . . common issues predominate and the parties are numerous, the superiority of a class action over individual lawsuits is obvious . . . ."Campbell v. New Milford Board of Education, supra,
The plaintiffs have not produced evidence to support a finding of any of the six factors listed above. There is no evidence that a large number of lawsuits will be filed if class certification is denied or that such lawsuits, if any are filed, CT Page 13656 would be scattered over a large geographic area. Furthermore, while the plaintiffs claim that the individual monetary claims would be small, there has been no proof in that regard. The superiority requirement essentially turns on the resolution of the predominance requirement. As stated, it is my opinion that plaintiffs have not met their burden of establishing that common issues predominate over individual issues; therefore, a class action is not the best or superior method for the adjudication of the underlying dispute.
Mulcahy, J.
Anne M. Makuc v. American Honda Motor Company, Inc., John D.... , 835 F.2d 389 ( 1987 )
julie-robidoux-individually-and-on-behalf-of-all-persons-similarly , 987 F.2d 931 ( 1993 )
Woodrow Sterling v. Velsicol Chemical Corporation , 855 F.2d 1188 ( 1988 )
Hector GARCIA, Etc., Plaintiff-Appellant, v. Alton v. W. ... , 618 F.2d 264 ( 1980 )
D'Amico v. Sitmar Cruises, Inc. , 167 Cal. Rptr. 254 ( 1980 )
Hector GARCIA, Etc., Plaintiff-Appellant, v. Alton v. W. ... , 609 F.2d 156 ( 1980 )
Fetterman v. University of Connecticut , 41 Conn. Super. Ct. 141 ( 1988 )
Campbell v. New Milford Board of Education , 36 Conn. Supp. 357 ( 1980 )
Walsh v. National Safety Associates, Inc. , 44 Conn. Super. Ct. 569 ( 1996 )
Sosna v. Iowa , 95 S. Ct. 553 ( 1975 )
General Telephone Co. of Southwest v. Falcon , 102 S. Ct. 2364 ( 1982 )