Opinion
AANCV116008392S.
11-21-2012
Timothy A. BISHOP v. AMERICAN HONDA MOTOR CO., INC. et al.
UNPUBLISHED OPINION
RICHARD E. ARNOLD, Judge.
The plaintiff has moved to strike several special defenses of the defendant, American Honda Motor Co., Inc., which were filed on January 11, 2012. The plaintiff moves to strike the second special defense to each of Counts Five, Six, Seven and Eight. The second special defense to these counts allege that the plaintiff is barred from recovering from the defendant American based on acts or omissions of third persons over whom American exercised no control and for whose conduct American is not responsible, including but not limited to the installation of aftermarket components in the subject vehicle. The plaintiff argues that this special defense is insufficient because it pleads facts inconsistent with those alleged in the Complaint.
The plaintiff moves to strike the Third Special Defense to each of Counts Five, Six, Seven and Eight. The Third Special Defense alleges that the vehicle was misused pursuant to General Statutes § 52-572l. The plaintiff claims this special defense is insufficient because it does not allege that any misuse was not foreseeable.
Sec. 52-5721 reads as follows:
The plaintiff also moves to strike the Fourth Special Defense to each of Counts Five, Six, Seven and Eight as legally insufficient in that this special defense alleges that third parties altered or modified the product by installing " aftermarket components" which caused damage pursuant to General Statutes § 52-572p. The plaintiff argues that no party alleges facts to suggest that anyone other than the plaintiff or defendants modified or altered the subject vehicle and the statute per its terms, excludes the plaintiff.
Sec. 52-572p. Limitation of liability of product seller reads as follows:
The plaintiff moves to strike the Fifth Special Defense to each of Counts Five, Six, Seven and Eight. This special defense alleges that the plaintiff is barred from recovery based upon his alleged spoliation of evidence. The plaintiff argues that while spoliation of evidence may give rise to a jury instruction and an adverse inference, it is not a claim that the plaintiff has no cause of action.
The plaintiff also moves to strike the Sixth, Seventh, Eighth, Ninth and Tenth Special Defenses to Count Five. These Special Defenses relating to the plaintiff's claims for punitive damages. The plaintiff argues they are legally insufficient because punitive damages awards are constitutionally valid. They cannot be attacked by special defenses claiming otherwise and such special defenses are not a claim that the plaintiff has no cause of action.
The plaintiff lastly moves to strike the Seventh Special Defense to Count Eight, which alleges that the plaintiff's claim in unjust enrichment is barred because there is no privity of contract. The plaintiff argues that this special defense is also legally insufficient because privity of contract is not required to recover on the legal theory of unjust enrichment.
I
The Complaint
The plaintiff has filed an eight-count complaint against the defendants American Honda Motor Company, Incorporated (" American") and Milford Imports, Incorporated, doing business as Courtney Honda (" Courtney). The first four counts are against Courtney and allege: (1) negligent misrepresentation; (2) a breach of the implied covenant of good faith and fair dealing; (3) a claim pursuant to the Connecticut Unfair Practices Act (" CUTPA"); and (4) breach of warranty. Counts Five through Eight are brought against American and allege: (1) a violation of CUTPA; (2) breach of implied warranty of merchantability; (3) breach of express warranties; and (4) unjust enrichment. This memorandum of decision relates only to Counts Five through Eight as against American.
A similar motion to strike has been brought as to special defenses filed by Courtney and will be addressed in a separate memorandum of decision.
II
General Statement of Alleged Facts
On or about July 13, 2007, the plaintiff purchased a new 2007 Honda Civic Hybrid motor vehicle from Honda of Westport, an affiliate of American. The plaintiff alleges the reason for his purchase of this model vehicle was specifically for the advertised gas mileage and environmental impact of this vehicle. The cost of the vehicle was approximately $27, 000.00. At the time of the purchase the vehicle contained a window sticker containing information relating to the vehicle's fuel economy, which stated that the vehicle's fuel economy ranged from 49 miles per gallon in the city to 61 miles per gallon on the highway. The sticker also stated that the annual fuel cost for the vehicle was $795.00. In addition to the three-year factory warranty offered by American, the plaintiff purchased an extended warranty at a cost of $1, 429.00.
In November 2010, the plaintiff began noticing an issue with the Vehicle Integrated Motor Assist (" IMA") battery. The IMA indicator light came on notifying the plaintiff of a problem. The additional insurance purchases by the plaintiff covered the IMA battery in the event a replacement was needed. The plaintiff took the vehicle to Courtney Honda for service of the IMA issue. Courtney replaced the vehicle's regular battery and found no other problems in the vehicle regarding the IMA battery.
On or about December 28, 2010, the plaintiff again brought the vehicle to Courtney, as the IMA light came on again. Courtney told the plaintiff a software update was necessary in order for the IMA system to perform properly and for the vehicle to achieve the advertised gas mileage. The plaintiff initially refused, citing his own independent research which indicated that the software update essentially made the IMA battery ineffective and significantly reduced the gas mileage of the Honda Civic Hybrid. Courtney's representative or employee assured the plaintiff that the software upgrade would fix the IMA issue and provide the vehicle with better gas mileage than the plaintiff was currently getting. Based on this representation, the plaintiff agreed to the software upgrade.
Following the upgrade of the IMA battery software, the plaintiff again noticed issues with the IMA system. The IMA did not " kick-in" and was registering dashboard readings of 0 miles per gallon while the vehicle was going downhill, whereas the vehicle had previously registered a very high miles per gallon reading under similar conditions. In addition, the vehicle's mile per gallon calculator indicated that the vehicle under normal driving conditions was achieving considerably less miles per gallon than was advertised, as well as considerably less miles per gallon than the vehicle had previously attained prior to the IMA battery software upgrade.
The plaintiff again brought the vehicle to Courtney for service due to the gas mileage problem. The plaintiff spoke with the same individual who had recommended the software upgrade at a previous visit. This representative/employee of Courtney made additional representations to the plaintiff. The employee told the plaintiff to disregard the miles per gallon information on the dashboard as fluctuations in the price of gasoline affected the miles per gallon readings. This representative of Courtney at the service desk also stated that the gauges reflecting the gas mileage and the IMA's battery charge were unreliable and that the plaintiff should trust the representations of this employee/representative that the vehicle was performing as it should. Lastly, for the first time, this employee advised the plaintiff that the software upgrade did, in fact, prevent the IMA system from working until the vehicle had been driven for at least 10 miles.
The plaintiff claims that, to date, the subject vehicle continues to get significantly less fuel efficiency as compared to the advertised gas mileage, and the vehicle no longer gets the gas mileage that it did get prior to the software upgrade. The plaintiff also claims that the vehicle periodically suffers from a low battery, loss of power and other abnormalities that did not exist when the vehicle was new.
III
Standard of Law
The standard of review on a motion to strike is well established. " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." Connecticut Coalition For Justice In Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
" [W]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a [pleading] challenged by a ... motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition For Justice In Education Funding, Inc. v. Rell, supra, 295 Conn. 252-53, 990 A.2d 206 (2010). Legal conclusions in a pleading are not deemed to be admitted. See Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).
" As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. No facts may be proved under either a general or special denial except such as to show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged ... If a party seeks to introduce evidence under a denial which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the new matter must be affirmatively pleaded as a special defense." (Citations omitted) (Internal quotation marks omitted.) Mitchell v. Guardian Systems, Inc., 72 Conn.App. 158, 166-67, 804 A.2d 1004 (2002), cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).
IV
Second Special Defense: Counts Five, Six, Seven and Eight
The plaintiff moves to strike the second special defense to each of Counts Five, Six, Seven and Eight. The second special defense to these counts allege that the plaintiff is barred from recovering from the defendant American based on acts or omissions of third persons over whom American exercised no control and for whose conduct American is not responsible, including but not limited to the installation of aftermarket components in the subject vehicle. The plaintiff argues that this special defense is insufficient because it pleads facts inconsistent with those alleged in the Complaint. The plaintiff notes that Practice Book § 10-50 on special defenses provides that " [n]o facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged ..." Practice Book § 10-50; see Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005); also see Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn.App. 775, 781, 871 A.2d 1057, cert. granted on other grounds, 274 Conn. 909, 876 A.2d 1201 (2005) (appeal withdrawn, February 3, 2006).
Practice Book § 10-50 reads in relevant part as follows:
" Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway. Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., supra, 274 Conn. 456.
The plaintiff states that the only parties alleged in the Complaint to have worked on the subject vehicle are employees of the defendants. No other third parties are alleged to have performed work on the vehicle. The plaintiff claims, therefore, that American's special defense regarding acts or omissions of third parties reaches outside the factual allegations of the complaint. American in its objection to the motion to strike this special defense argues that it has pleaded additional facts, not inconsistent facts. Additionally, American argues that Practice Book § 10-50, which governs the pleading of special defenses does not specifically prohibit special defenses which allege inconsistent facts.
" Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., supra, 274 Conn. 456; Practice Book § 10-50; see also, Coughlin v. Anderson, 270 Conn. 487, 502, 853 A.2d 460 (2004). " The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973); DuBose v.. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971). " Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." Almada v. Wausau Business Ins. Co., supra, 274 Conn. 456; Pawlinski v. Allstate Ins. Co., supra, 6-7; DuBose v. Carabetta, supra, 259-61." Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994).
" The distinction between matters which may be proved under a general denial and matters constituting special defenses, which must be specially pleaded, was enunciated in Pawlinski v. Allstate Ins. Co., supra, 165 Conn. 1, where [our Supreme Court] observed ... that [t]he issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact ... If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would [independently] destroy the cause of action, the new matter must be affirmatively pleaded as a special defense." (Citations omitted; internal quotation marks omitted.) Barrows v. J.C. Penney Co., Inc., 58 Conn.App. 225, 233, 753 A.2d 404 (2000); Bernier v. National Fence Co., 176 Conn. 622, 629, 410 A.2d 1007 (1979). " The court in Pawlinski clarified the complexity of this theory using the following illustration from 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.1970) § 127(c) p. 521: " D is liable to P if a, b, and c are true unless d is also true. If d contradicts a, b, or c, then evidence of d may be admitted under a denial. If, however, the existence of d does not negate the existence of a, b, or c, but independently destroys liability, then evidence of d may be admitted only under a special defense." Barrows v. J.C. Penney Co., Inc., supra, 58 Conn.App. 233 n. 6, quoting, Pawlinski v. Allstate Ins. Co., supra, 165 Conn. 7.
Given this reasoning set forth in Pawlinski, the defendant's special defense simply seeks to restate its denial, and is, in fact, inconsistent with the allegations of the complaint. " When the facts alleged in the defendant's special defense are inconsistent with the facts alleged in the complaint, the defense is legally insufficient and the court should grant the motion to strike. See 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 more appropriate method of pleading facts that are inconsistent with the allegations of the complaint is through a denial of the specific allegations of the complaint. Doing so adequately apprises the court and the parties of the contested issues while avoiding the potential for jury confusion.’ Standard Fire Ins. Co. v. Drummey, Superior Court, judicial district of Hartford, CV 06 5002071 (January 25, 2007, Hale, J.T.R.) (42 Conn. L. Rptr. 717, 719)." Benoit v. Edington, Superior Court, Judicial District of Fairfield, Docket No. CV06 5006056 (March 13, 2009, Bellis, J.); see also, SJ Partners, LLC v. Assur. Co. of Am., Superior Court, judicial district of New Haven at Meriden, No. CV08 5003126-S (Jun. 12, 2009, Fischer, J.) (striking defendant's eighth special defense as legally insufficient because it merely made allegations inconsistent with those in the amended complaint.). The motion to strike the second special defense as to counts five, six, seven and eight is granted.
V
Third Special Defense: Counts Five, Six, Seven and Eight
The plaintiff moves to strike the third special defense to counts Five, Six, Seven and Eight. This special defense alleges that the plaintiff is barred from recovery " because the vehicle was misused pursuant to General Statutes § 52-572l. The plaintiff argues that this special defense is legally insufficient because it does not allege that any alleged misuse was not foreseeable.
General Statutes § 52-572l states as follows:
In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery. The provisions of this section shall apply to all actions pending on or brought after June 7, 1977, claiming strict tort liability notwithstanding the date on which the cause of action accrued. Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability.
" [U]nder our common and statutory law, misuse by the claimant is a defense to a product liability action." Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994); General Statutes 52-5721. " Misuse" occurs when a product is not used " in a manner which should have been foreseen by the defendant." Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987). " 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.) Lemaire v. Farmington Ready Mix, Superior Court, judicial district of Litchfield at Litchfield, No. LLI-CV-04-4000443S (Jan. 30, 2006, Pickard, J.); Kuzoian v. Saybrook Country Barn, Inc., Superior Court, judicial district of New Britain, Docket No. CV 000501052 (Jan. 22, 2001, Shapiro, J.).
" The role of the trial court [in ruling on a motion to strike is] to examine the [special defense], construed in favor of the [defendant] ..." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). The court must " take the facts to be those alleged in the [special defense] ... and construe the [special defense] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522-23, 753 A.2d 927 (2000). " [W]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a [special defense] challenged by a [plaintiff's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
Here American has pleaded consumer misuse of the vehicle under a specific statute, and has identified the manner in which it believes the subject vehicle has been misused. The special defense sufficiently apprises the court and the opposing counsel of the issues to be tried. See Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). The motion to strike the third special defense as to counts five, six, seven and eight is denied.
VI
Fourth Special Defense: Counts Five, Six, Seven and Eight
The fourth special defense alleges that the plaintiff cannot recover " to the extent the plaintiff, and/or third parties over whom AHM [American] had no control and for whom AHM [American] bears no responsibility, altered and/or modified the product ..." The plaintiff claims this is legally insufficient to the extent that it alleges any actions on the part of the plaintiff because General Statutes § 52-572p excludes the plaintiff by its terms. It is also legally insufficient in regards to third parties because the pleadings are devoid of any facts suggesting that any third party made any modifications or alterations to the vehicle.
General Statutes § 52-572p(a) provides:
(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller.
Courts have consistently stated that if the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395, 618 A.2d 1340 (1993). " By its own terms, 52-572p limits its application to alterations and modifications made by a third party." Elliot v. Sears, Roebuck & Co., supra, 229 Conn. 508. " The term third party is not defined in the act. Where a statute ... does not define a term, it is appropriate to focus upon its common understanding as expressed in the law and upon its dictionary meaning." (Internal quotation marks omitted.) (Internal quotation marks and internal citations omitted.) Id. " The dictionary definition of ‘ third party’ is ‘ [o]ne not a party ... to ... an action’; Black's Law Dictionary (6th Ed.1990); and therefore does not include a plaintiff." Id.
The court also agrees that the fourth special defense is legally insufficient to the extent it suggests alterations by third parties. Neither the complaint or the special defenses allege any facts to suggest any third parties altered or modified the subject vehicle. See. Stevenson v. Kettler, Intl., Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, No. FST CV 05 5000357 (Aug. 14, 2006, Lewis, J.T.R.); 42 Conn. L. Rptr. 69. The plaintiff's motion to strike American's fourth special defense as to counts five, six, seven and eight is granted.
VII
Fifth Special Defense: Counts Five, Six, Seven and Eight
The fifth special defense alleges that the plaintiff is barred from recovery based upon his alleged spoliation of evidence. The plaintiff argues that this is legally insufficient because, while spoliation of evidence may give rise to a jury instruction and an adverse inference, it is not a claim that a plaintiff has no cause of action. Accordingly, the issue raised is whether spoliation of evidence is properly pleaded as a special defense.
" In Beers v. Bayliner Marine Corporation, 236 Conn. 769, 675 A.2d 829 (1996), the Supreme Court held that the trial court committed error in granting the plaintiff's motion for summary judgment based on the defendant's spoliation of evidence. The court held that a party may not be put out of court or effectively defaulted on the issue of liability for spoliation of evidence. Id., 775 and n. 9. Rather, the court held that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it. Id. " (Internal quotation marks omitted.) Barnum v. Ford Motor Company, Superior Court, judicial district of Fairfield, No. 325240 (Jan. 10, 1997, Levin, J.); 18 Conn. L. Rptr. 425. " Thus, spoliation of evidence may give rise to a jury instruction and to an adverse inference. However, spoliation of evidence is not a claim that the plaintiff has no cause of action. For this reason it is not properly pled as a special defense." Id. The motion to strike the fifth special defense as to Counts Five, Six, Seven and Eight is granted.
VIII
Sixth, Seventh, Eighth, Ninth and Tenth Special Defenses: Count Six
The Sixth, Seventh, Eighth, Ninth and Tenth special defenses to Count Six allege that the plaintiff's claim of punitive damages, pursuant to General Statutes § 42-110g, is unconstitutional, under the United States Constitution and the Connecticut Constitution. The court disagrees.
" Punitive damages have long been a part of traditional state tort law." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984). " Under the traditional common law approach, the amount of the punitive award is initially determined by a jury instructed to consider the gravity of the wrong and the need to deter similar wrongful conduct. The jury's determination is then reviewed by trial and appellate courts to ensure that it is reasonable. This Court more than once has approved the common law method for assessing punitive awards." Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 15, 111 S.Ct. 1032 (1991).
" The imposition of punitive or exemplary damages in such cases cannot be opposed as in conflict with the prohibition against the deprivation of property without due process of law. It is only one mode of imposing a penalty for the violation of duty, and its propriety and legality have been recognized ... by repeated judicial decisions for more than a century. Its authorization by the law in question ... cannot therefore be justly assailed as infringing upon the Fourteenth Amendment of the Constitution of the United States." (Citations omitted.) Id., 17. " So far as we have been able to determine, every state and federal court that has considered the question has ruled that the common law method for assessing punitive damages does not in itself violate due process ... In view of this consistent history, we cannot say that the common law method for assessing punitive damages is so inherently unfair as to deny due process and be per se unconstitutional." Id., 17-18.
Whatever the validity of the concerns about excessive punitive damages may be elsewhere, the risk of unfair and excessive punitive damages awards is substantially limited in Connecticut by routine constraints on the amount of punitive damages. Connecticut courts have consistently limited punitive or exemplary damage awards in Connecticut to costs in excess of taxable costs." (Citation omitted.) Freeman v. Alamo Management Company, 221 Conn. 674, 680, 607 A.2d 370 (1992); 6 Connecticut Practice, J. Fitzgerald & R. Yules, Connecticut Trial Practice (1987) 5.19, p. 196.
Additionally, our Supreme Court recognizes punitive damages as constitutional in actions for violations of the Connecticut Unfair Trade Practices Act (" CUTPA"). " [A]warding punitive damages and attorneys fees under CUTPA is discretionary ... and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done." (Internal quotation marks omitted.) Votto v. American Car Rental, Inc., 273 Conn. 478, 486, 871 A.2d 981 (2005); Metcoff v. NCT Group, Inc., 137 Conn.App. 578, 584-85 (2012). The motion to strike the sixth, seventh, eighth, ninth and tenth Special Defenses as to Count Six is granted.
IX
Seventh Special Defense: Count Eight
The seventh special defense to count eight alleges that the plaintiff's unjust enrichment claim is barred because there was no privity of contract between the plaintiff and American. The plaintiff argues that under Connecticut law, the elements of a cause of action for unjust enrichment do not require contractual privity. " A plaintiff seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiff's] detriment." (Internal citations omitted; internal quotation marks omitted.) Marlin Broadcasting v. Law Office of Kent Avery, 101 Conn.App. 638, 648-49, 922 A.2d 1131 (2007).
" A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ... With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ... Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ..." Schirmer v. Souza, 126 Conn.App. 759, 763 (2011). " [A] contractual relationship is not a prerequisite to recovery based on unjust enrichment." Id., 767. Privity of contract between the plaintiff and the defendant is not required. The motion to strike the seventh special defense to count eight is granted.
Orders
The motion to strike the second special defense as to counts five, six, seven and eight is granted. The motion to strike the third special defense as to counts five, six, seven and eight is denied. The plaintiff's motion to strike American's fourth special defense as to counts five, six, seven and eight is granted. The motion to strike the fifth special defense as to Counts Five, Six, Seven and Eight is granted. The motion to strike the sixth, seventh, eighth, ninth and tenth Special Defenses as to Count Six is granted. The motion to strike the seventh special defense to count eight is granted.
In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery. The provisions of this section shall apply to all actions pending on or brought after June 7, 1977, claiming strict tort liability notwithstanding the date on which the cause of action accrued. Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability.
(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third party unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; or (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller.
(b) For the purposes of this section, alteration or modification includes changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller.
No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged ...