DocketNumber: No. CV 96 0474249 S
Citation Numbers: 1999 Conn. Super. Ct. 11839, 25 Conn. L. Rptr. 463
Judges: ROBINSON, JUDGE.
Filed Date: 8/23/1999
Status: Non-Precedential
Modified Date: 4/17/2021
ACMAT, as the assignee of any claims of Russell Dawson,3 on June 11, 1996, in a five count complaint, brought suit against the defendant, Jansen Rogan, alleging that Jansen Rogan breached its contract for engineering services with Russell Dawson by negligently performing the contracted engineering services.
On October 16, 1996, Jansen Rogan filed an apportionment complaint pursuant to General Statutes §§
Thereafter, on January 14, 1997, ACMAT filed an amended complaint in which it realleged the negligence and breach of contract claims against Jansen Rogan and added an additional negligence claim against Landis Gyr. Count one of the amended complaint states that Jansen Rogan entered into a contract with Russell Dawson for the overall schematic design work for the rehabilitated and new HVAC systems in a building owned by ACMAT. (Amended Compl., 12/26/96, Count One, ¶¶ 5, 7). In performing its services, Jansen Rogan was purportedly responsible for providing "the technical information for the HVAC design, while Russell Dawson coordinated this information and incorporated it CT Page 11841 into final drawings and specifications for use by ACMAT and its subcontractors and suppliers." (Amended Compl., 12/26/96, Count One, ¶ 9.) ACMAT further claims that Jansen Rogan "continually failed to provide adequate design and specifications of the HVAC systems; . . . continually failed to detect defects in the design and specifications; . . . continually failed to warn ACMAT of, and continually failed to correct, the consequences of their errors, omissions and inadequacies in the design and shop drawing review of the HVAC systems; . . . continually failed to correct the consequences of improper design and shop drawing review once notified of the problems encountered by ACMAT in the [b]uilding; . . . continually failed to assist ACMAT in formulating and undertaking effective remedial steps to properly correct the consequences of the improper design and shop drawing review; and . . . [Jansen Rogan] undertook to perform engineering assignments on the [b]uilding, including the pre-purchase specifications of certain HVAC systems components, without first fully performing all necessary field inspections." (Amended Compl., 12/26/96, Count One, ¶ 15.) For these reasons, ACMAT contends that it has incurred out-of-pocket expenses in making the HVAC system operational. (Amended Compl., 12/26/96, Count One, ¶ 16.)
Count six of the amended complaint, which ACMAT withdrew on May 17, 1999, incorporated paragraphs one through fifteen of count one and further alleged that Landis Gyr was negligent in performing the contract with ACMAT "to provide the automatic control system for the HVAC systems for ACMAT's building." (Amended Compl., Count Six, ¶¶ 16, 19.) Count six also alleged that because Landis Gyr provided a defective and improper temperature control system, ACMAT cannot "properly and effectively control the HVAC systems and the temperature of its building."4 (Amended Compl., 12/26/96, Count Six, ¶ 18.)
Landis Gyr contend that it is a product seller, as a matter of law, and therefore, the apportionment complaint cannot be CT Page 11842 brought against it. Jansen Rogan counters that whether or not an entity is a product seller under the CPLA is an issue of fact which should not be resolved in a motion for summary judgment.
This court is not persuaded to adopt either of these conclusions. For reasons more fully set forth in this decision, this court holds that Landis Gyr is not a product seller, as a matter of law.
"Practice Book §
B. Apportionment Statute and the Connecticut Products Liability Act
General Statutes §
In its memorandum in opposition, Jansen Rogan responds that the amended complaint and the apportionment complaint each sound in negligence. It also argues that Landis Gyr contracted with ACMAT to provide services and that neither an HVAC system nor its components are products. Jansen Rogan concludes that it properly impleaded Landis Gyr as an apportionment defendant pursuant to §§
General Statutes §
Any defendant in any civil action to which section
52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.
Subsection (f) further provides that §
"Thus, the statute unambiguously provides that a defendant may implead apportionment defendants under §
In determining whether a case is a negligence action, "§
Count one of ACMAT's amended complaint clearly alleges a common law negligence claim against Jansen Rogan.8 Besides alleging generally that "Jansen Rogan [was] negligent in the performance of [its] professional obligations and duties owed to ACMAT and Russell Dawson by contract", ACMAT specifically alleges particular negligent acts for which Jansen Rogan purportedly is responsible. (Amended Compl., 12/26/96, Count One, ¶ 15.) Although count six of Jansen Rogan's apportionment complaint could have been pleaded more clearly, it sufficiently meets the requirements of §
Nowhere in the underlying complaint did ACMAT allege that it is proceeding against Jansen Rogan solely on the breach of contract claims; nor did Jansen Rogan in the apportionment complaint allege that it was proceeding against Landis Gyr solely on a breach of contract claim.9 Nevertheless, Landis
Gyr argues that as the manufacturer and installer of the automatic temperature control system, it is a product seller under §§
Landis Gyr cites several cases for the proposition that whether a claim is based on product liability or negligence depends on the substance of the allegations and not on the language used in the complaint. See Plateroti v. Sylvan KnollSection I, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 161060 (September 29, 1998, Karazin, J.) (no impleader of swing set manufacturer under §
These cases, however, do not support Landis Gyr's argument. In none of these cases was the court called upon to determine whether the instrumentality in question was a "product" as that term is used in the product liability act, nor does it appear that the parties themselves disputed these facts. The court in each action assumed that the respective instrumentality, whether a swing set, oil drum or tank and ladder, was a product and that each apportionment defendant was a manufacturer or seller of such within the meaning of §
Neither Landis Gyr nor Jansen Rogan have cited any Connecticut cases in which a court has considered the issue of whether an HVAC system or an automatic temperature control system is a product or whether a manufacturer or seller of such is a product seller for the purposes of a product liability action. This court has found no such cases in Connecticut, either.10
For the reasons stated herein, the court finds that Landis Gyr is not a product seller for purposes of the CLPA.
1. "Product", Under the CLPA
The Product Liability Act does not define what constitutes a product. Hines v. JMJ Construction Co., supra, Superior Court, Docket No. 506329. "However, the [Uniform Product Liability Act], on which the Connecticut Act is based, defines `product' as any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce." (Internal quotation marks omitted.) Hines v. JMJ Construction Co., supra, Superior Court, Docket No. 506329. Rather than rely on the UPLA definition of "product", which is not specifically adopted in the CPLA, Connecticut courts have turned to defining "product" through case law. Id. and Lang v. Brom, Superior Court, judicial district of New Haven at New Haven, Docket No. 96-0369766 (February 3, 1998,Hartmere, J.) "Courts have defined [product] as any item, thing, or commodity which, upon acquiring its physical existence and identity, through the process of manufacture or otherwise, is put CT Page 11846 in the stream of commerce either by sale, for use, consumption or resale or by lease or bailment." (Citations omitted; internal quotation marks omitted.) New England Variety Distributors. Inc.v. Alarm Sec. Protection Co., Inc., supra, Superior Court, Docket No. 545381.
Courts in other jurisdictions have considered the issue of whether the HVAC system is a product within the meaning of their state's product liability statute. Fennell v. Nesbitt, Inc.,
This court finds that the HVAC system and its components are manufactured items. Therefore, Landis Gyr may well be able to prove to a trier of fact that the HVAC system and its components are products. Consequently, the factual issue of whether the HVAC system and its components are products is one in dispute. Thus, this court must turn next to address the question of whether or not Landis Gyr is a product seller.
2. "Product Seller", under the CLPA
Whether an entity is a product seller is an issue that may be determined by the court, as a matter of law. See, Burkett v.Petrol Plus of Naugatuck,
A "`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." General Statutes §
"[T]he [Uniform Product Liability Act] excluded from the definition of a `product seller' [a] provider of professional services who utilizes or sells products within the legally authorized scope of its professional practice and [a] nonprofessional provider of services is not included unless the sale or use of a product is the principal part of the transaction, and the essence of the furnishing of judgment, skill, or services. . . ." Hines v. JMJ Construction Co., supra, Superior Court, Docket No. 506329.
"Where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods". Gulash v. Stylorama,
In support of its argument that it is a seller of a product under the product liability act, Landis Gyr offered the affidavit of Russell Tanguay, operations manager for Landis Gyr, who "was involved in the day-to-day involvement of the subcontract [work] performed at the Acmat Building." (Tanguay Affid., 2/18/99, ¶ 5.) Tanguay attested that "Landis' scope of work was to manufacture certain parts for the modification to Acmat's HVAC system, to assemble other manufacturer's parts into the Landis equipment, to install the equipment in the building, CT Page 11848 test the equipment, label the equipment as Landis manufactured equipment and to provide the operating instructions for the use of said equipment."11 (Tanguay Affid., 2/18/99, ¶ 6.)
While this affidavit is somewhat helpful in unraveling the tangled web of factual issues, the language of Landis Gyr's contract with ACMAT provides a more complete understanding of Landis Gyr's contractual responsibilities. The contract provided that "[Landis Gyr] shall furnish . . . all plant, labor, materials, supplies and equipment to perform such work . . . The work includes [a]utomatic temperature controls in accordance with Landis Gyr Powers, Inc. proposal dated October 27, 1989, No. J-281R . . . submittals of controls, drawings diagrams to Russell and Dawson for approvals and provid[ing] a complete operating system for this project." Landis Gyr's proposal offered "to furnish and install a Landis Gyr Powers, Inc. environmental control, energy management and/or building automation system." An attached "List of Clarifications", which was incorporated into, the contract, provides further evidence that Landis Gyr was hired for its judgment and expertise. The list specified the actual work for which Landis Gyr would be responsible under the contract, including monitoring room air, outside air, mixed air, and supply air discharge temperatures, in addition to monitoring fan status, low and high temperatures, pump status, and hot and chilled water temperatures and monitoring the differential pressure of water temperatures. The contracted work also included submittals and as-built diagrams, electrical installation guidelines, and programming. These monitoring and engineering services far surpass the mere selling or manufacturing of a product.
Nowhere in the contract between Landis Gyr and ACMAT does it state or indicate that the contract is merely for the sale of a good or an already manufactured temperature control system. Thus, this court holds that the apportionment defendant will not be able to establish that the contract was strictly for the sale of a product.
As Landis Gyr's agreement with ACMAT clearly demonstrates, Landis Gyr was hired to perform various services, not to simply sell ACMAT a product identified as an automatic temperature control system. Landis Gyr, pursuant to the agreement, was to furnish judgment and skills, in addition to building a complete temperature operating system for ACMAT's building. The "work" that Landis Gyr was required to perform is indicative of a services contract rather than a transaction in goods. Although CT Page 11849 Landis Gyr provided materials by way of purchasing and installing some parts from different manufacturers in the performance of its work, the essence of the contract was basically for the rendition of services.
3. Hybrid Sales-Service Transaction
Based upon the evidence produced for this court, the apportionment defendant, at best, will be able to establish that the transaction between Landis Gyr and ACMAT was a hybrid transaction, involving the provision of both a product and a service. The Connecticut Product Liability Act does not give clear guidance as to how a hybrid sales-service transaction should be labeled. "When distinguishing between a service and a product, some courts focus on the object of the contract. SeePaul v. McPhee Electrical Contractors, supra,
In considering the evidence in the light most favorable to Jansen Rogan, the nonmoving party, the court holds that while it may be proven that the HVAC system and/or its components are "products" as defined by the CPLA and that the work performed by Landis Gyr under its contract with ACMAT constituted a combination of the provision of services product and the sale of goods, the hybrid transaction is dominated by the service component and not the manufacturing and furnishing of a product CT Page 11850 component. Therefore, Landis Gyr can not be deemed to be a product seller under the CPLA.
IV. CONCLUSION
For all of the above reasons, this court holds that the contract between Landis Gyr and ACMAT was not solely for the sale of a product, nor is Landis Gyr a product seller for purposes of the product liability act, General Statutes §
Angela Carol Robinson, Judge, Superior Court.