Opinion
CV156062209S
05-03-2016
Amica Mutual Insurance Company v. Watts Water Technologies, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (#117)
Jane S. Scholl, J.
In this products liability case, the plaintiff moved to strike certain of the defendants' special defenses. The defendants have agreed to withdraw certain of their special defenses. Those remaining, to which the motion to strike is addressed, are the First, Second, Fourth, Seventh and Eighth.
The defendants' First Special Defenses allege that any damages sustained by the plaintiff were caused in whole or in part by the alteration and/or modification of the product. In the Amended Complaint the plaintiff alleges that the product " was not altered or modified in any way." Paragraph 11 . In Mitchell v. Guardian Systems, Inc., 72 Conn.App. 158, 167, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002), the court noted that the Practice Book required that a special defense be consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff had no cause of action. The court held that a special defense which alleged different facts than that alleged in the complaint was legally insufficient. Thus the First Special Defenses are also legally insufficient. The Motion to Strike is granted as to the First Special Defenses.
The Second Special Defenses allege the comparative fault of the plaintiff and/or its insured. In Pfizer, Inc. v. Mine Safety Appliances Co., Superior Court, judicial district of Hartford, Docket No. HHDX04CV044034705S (Shapiro, J., Feb. 11, 2008) , the court held that: " Nevertheless, this court concludes that, in Mahon [ v. B.V. Unitron Manufacturing, Inc., 284 Conn. 645, 935 A.2d 1004 (2007)] the Supreme Court appears to tacitly approve the pleading of comparative negligence as a special defense to a product liability claim." (Citation omitted.) See also, Bravo v. Ford Motor Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 00 0594807 (Berger J., April 16, 2001) . The Motion to Strike is denied as to the Second Special Defenses.
The Fourth Special Defenses allege that the plaintiff and/or its insured misused the product. " Misuse occurs when a product is not used in a manner which should have been foreseen by the defendant . . . To prevail on the defense of product misuse, [the defendants must] establish that [the product] was misused, that the misuse was not foreseeable and that the misuse was the proximate cause of the plaintiff's injuries." (Citations omitted; internal quotation marks omitted.) Stevenson v. Kettler International, Inc., Superior Court, judicial district Stamford-Norwalk, Docket No. FSTCV055000357 (Lewis, J.T.R., Aug. 14, 2006) . The Fourth Special Defenses do not set forth these elements nor do they recite any facts to support their claim. " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The Motion to Strike is granted as to the Fourth Special Defenses.
In the Seventh Special Defenses the defendants allege that the plaintiff is barred from recovery, in whole or in part, because it or its insured failed to mitigate its damages. In Wegryn v. Smith & Nephew, Inc., Superior Court, judicial district of New Haven, Docket No. CV075013243S (Cosgrove, J., Mar. 5, 2008) , the court stated: " The Supreme Court of Connecticut implicitly found failure to mitigate to be a valid special defense in Preston v. Keith, [217 Conn. 12, 22, 584 A.2d 439 (1991)] when the Court distinguished that case from a prior case . . . Connecticut Appellate Court also implied that failure to mitigate damages is a valid affirmative defense when that court held that the defendant was entitled to a jury charge of mitigation of damages because he asserted it as a special defense and produced some evidence to support the claim. Mauro v. Yale-New Haven Hosp., 31 Conn.App. 584, 593-94, 627 A.2d 443 (1993)." (Citation omitted.) In a later Appellate Court case not cited in Wegryn, Keans v. Bottiarelli, 35 Conn.App. 239, 243, 645 A.2d 1029 (1994), the court stated that the plaintiff need not specially plead a duty to mitigate damages. More recently Judge Bright in THCI Co., LLC v. Dickstein, Superior Court, judicial district of Tolland, Docket No. TTDCV 135005827S, (June 9, 2014) discussed the issue: " [O]ur appellate courts have never squarely addressed whether a failure to mitigate damages may be stricken because it is not an appropriate special defense. The issue has been raised in a number of superior court cases, and there is a split among the superior courts as to whether failure to mitigate damages is a valid special defense. Some courts have held that it is not because, even if proven, it does not defeat the plaintiff's cause of action. Mitigation of damages is not a valid special defense because it does not allege that a plaintiff has no cause of action [e.g. infancy, statutes of limitation, fraud or duress], but only that the damages, if any, should be decreased . . . Other courts have held that failure to mitigate damages should be pled as a special defense to provide the plaintiff with notice of a claim to which it will have to respond . . . The court agrees that mitigation of damages is not an appropriate special defense, and should be stricken if the plaintiff moves on that basis. Pursuant to Practice Book § 10-50, facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged . . . The Practice Book then provides a non-exhaustive list of special defenses, all of which, if proven, would defeat the plaintiff's claim in its entirety . . . Furthermore, the notice issue that has caused other courts to hold that failure to mitigate should be specially pled, can be addressed in other ways, particularly through proposed jury instructions. In fact, the Appellate Court has held that the court may charge the jury on the doctrine of mitigation of damages even though a failure to mitigate had not been pled as a special defense." (Citations omitted; internal quotation marks omitted.) Based on the above, the Motion to Strike is granted as to the Seventh Special Defenses.
The Eighth Special Defenses state: " The Plaintiff is barred from recovery because it has failed to plead sufficient facts to state a claim under a general malfunction theory of liability . . ." It has been held that a claim that the complaint fails to state a cause of action is not a proper special defense under Connecticut state court law. See cases cited in Deutsche Bank Trust Company Americas v. Porzio, Superior Court, judicial district of Stamford-Norwalk, Docket No. FSTCV116011134S, (Tierney, J.T.R., Apr. 29, 2014). This court agrees. Such a claim is more appropriately the subject of a motion to strike directed to the complaint. " 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." (Citation omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The Motion to Strike is granted as to the Eighth Special Defenses.