Opinion
No. CV 07 5009725 S
October 17, 2008
MEMORANDUM OF DECISION
This is a personal injury action brought by the plaintiff, Roberto Martir, arising out of a slip and fall that allegedly occurred on the rear steps of premises owned by one of the defendants, Town and Country Club. The plaintiff alleges in his complaint that he fell, in part, because the steps had been recently painted with a "glossy slick paint" that made the stairs unreasonably dangerous. Because the plaintiff at the time of the accident was delivering uniforms to Town and Country Club on behalf of his employer, Mayflower Laundry and Dry Cleaning Company ("Mayflower"), he subsequently received workers' compensation benefits for his injuries and losses from the fall. Mayflower and its workers' compensation carriers (hereinafter, the "Intervening Plaintiffs") have intervened as plaintiffs in the action pursuant to the Connecticut Workers' Compensation Act to recover the benefits the intervening plaintiffs have paid or will pay to the plaintiff for his injuries.
The other defendants are Enterprise Builders, Inc., a general contractor for Town and Country Club, and W.A. Crosscup, Inc. ("Crosscup"), a painting contractor. Subsequent to the filing of the plaintiff's action, Crosscup filed an apportionment complaint against the Glidden Company ("Glidden Paints"), pursuant to General Statutes § 52-102(b). The apportionment complaint alleges that Glidden Paint was negligent and careless by, among other things, recommending the use of a particular paint for the steps in question, failing to consider or recommend other paints for the project, failing to warn Crosscup that surfaces coated with the paint would become slippery when wet, and failing to advise Crosscup that it should add texturing material to the paint if the paint is used in pedestrian areas to make the surface more slip resistant. Accordingly, Crosscup's complaint asks the court to apportion liability, if any, for damages recovered by the plaintiff between itself and Glidden Paints.
After Glidden Paints was cited in as an apportionment defendant, the plaintiff and the intervening complaints amended their complaints to cross claim an additional count of negligence against Glidden Paints.
Glidden Paints now moves to dismiss the apportionment complaint on the basis that the claims asserted therein are, in essence, product liability claims and, pursuant to Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 805, 756 A.2d 237 (2000), may not be brought pursuant to the apportionment statute. In its motion, Glidden Paints also asserts that the court lacks personal jurisdiction over it because the apportionment complaint was not served within 120 days of the return date specified in the plaintiff's original complaint. At oral argument, Glidden Paints withdrew this claim in light of Crosscup's reliance on General Statutes § 52-593a.
Finally, Glidden Paints moves to dismiss Count Four of both the plaintiff's complaint and the intervening plaintiffs' complaint on the grounds that because the court lacks jurisdiction over Glidden Paints as an apportionment defendant, Glidden Paints is not a proper party to the action, and therefore are not subject to cross claims filed by the plaintiff and intervening plaintiff.
For the reasons set forth below, the court agrees with Glidden Paints with respect to its claim that the apportionment complaint improperly asserts product liability claims.
Standard of Review
As a preliminary matter, Crosscup contends that the primary issue raised in Glidden Paints' motion to dismiss to the apportionment complaint does not implicate the court's subject matter jurisdiction and therefore should have been raised in a motion to strike rather than a motion to dismiss. It is important to note in this regard that Glidden Paints' motion to dismiss involves two separate claims: (1) the apportionment complaint was not sewed on it within 120-days of the return date as required by statute; and (2) the apportionment complaint improperly attempts to assert claims sounding in product liability.
Glidden Paints' first claim plainly relates to whether the trial court has personal jurisdiction over it and therefore is the proper subject of a motion to dismiss. See Practice Book § 10-31; Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 26, 848 A.2d 418 (2004) (failure to comply with 120 day rule found in apportionment statute implicates personal jurisdiction). As noted above, however, this claim has been withdrawn.
The second and remaining basis of the motion to dismiss, however, does not implicate the court's subject matter jurisdiction as Glidden Paints appears to contend. It is true, as a general matter, that the right to bring an apportionment claim exists solely pursuant to statute. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 26. It is not true, however, as Glidden Paints argues, that every alleged lack of compliance with a statutory cause of action implicates the court's subject matter jurisdiction. Indeed, the Connecticut Supreme Court's decision in Lostritto makes clear that a failure to comply strictly with the terms of the apportionment statute does not necessarily implicate the court's subject matter jurisdiction over an apportionment claim.
Subject matter jurisdiction "is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy." (Internal quotation marks omitted.) Rayhall v. Akim, Co., 263 Conn. 328, 339, 819 A.2d 803 (2003). Pursuant to the apportionment statute, this court plainly has jurisdiction to hear apportionment claims brought before it in a negligence action. The issue raised by Glidden Paints here is whether Crosscup's apportionment complaint is a legally sufficient negligence claim that is permitted by the apportionment statute. This is precisely the type of assertion that should be brought as a motion to strike pursuant to Practice Book § 10-39.
Although the court agrees with Crosscup that Glidden Paints should have raised this claim in a motion to strike, the court is permitted to construe the motion to dismiss as a motion strike and reach the merits of the issue. See, e.g., McCutcheon Burr, Inc., v. Berman, 218 Conn. 512, 527, 590 A.2d 438 (1991); Commissioner v. Lake Phipps Land Owners Corp., 3 Conn.App. 100, 102, 485 A.2d 580 (1985). Such a course is appropriate here because the parties have fully briefed the issue, and no party is prejudiced by the court's consideration of the issue at this time.
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 624, 910 A.2d 209 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id., 625. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Analysis
Glidden Paints claims that the apportionment complaint is legally insufficient because its allegations, even though couched in the terms of negligence, sound in product liability and therefore may not be brought as apportionment claims. The court agrees.
General Statutes § 52-572n of the Products Liability Act provides: "A product liability claim, as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a, may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." The products liability statute "provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim. Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 463, 562 A.2d 517 (1989) (plaintiff cannot avoid product liability statute of limitations by pleading product liability claim in common-law terms); Daily v. New Britain Machine Co., 200 Conn. 562, 571-72, 512 A.2d 893 (1986) (common-law claim based on product liability barred by § 52-572n[a]) . . . Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 21, 698 A.2d 354 (1997) (no apportionment claim permitted based on allegations of product liability)." (Citations and internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 805, 756 A.2d 237 (2000).
By statute, a "[p]roduct liability claim includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent . . ." General Statutes § 52-572m.
In Allard v. Liberty Oil Equipment Co., supra 253 Conn. 787, the Connecticut Supreme Court squarely held that the apportionment statute may not be utilized by a defendant in a negligence action to assert product liability claims against an apportionment defendant. Moreover, the court concluded that the exclusivity provision of the products liability statute, as well as the statutory limitation on apportionment claims to negligence only, cannot be avoided in an apportionment complaint simply by casting or limiting product liability claims in an apportionment complaint to those sounding in negligence only. Id., 800.
It is not seriously disputed by Crosscup that Glidden Paints is a "product seller" as defined in General Statutes § 52-572m. Instead, Crosscup argues that the allegations of contained in its apportionment complaint are not product liability claims within the meaning of the products liability statute because the claims "concern the negligent conduct of [Glidden Paints] and not the paint itself [and] there is no claim that the paint itself was defective." (Emphasis added.) (Crosscup's Objection to Motion to Dismiss Apportionment Complaint, at p. 7.) Crosscup's argument, however, is belied by the plain language of its own apportionment complaint and relies on a distinction without a difference.
First, it is important to note that the statutory definition of products liability claim include claims that necessarily involve conduct on behalf of the product seller. For example, product liability claims in § 52-572m include allegations that the product seller expressly or impliedly warranted that the product could be used for a particular purpose, made negligent or innocent misrepresentations regarding the product, and failed to warn or instruct regarding the product. These types of product liability claims necessarily involve the conduct (or lack thereof) of the product seller and may exist even if the underlying product is not per se defective.
Each allegation made by Crosscup in its apportionment complaint falls squarely with the definition of a products liability claim as set forth in § 52-572m. Subparagraphs (a)-(c), and (f)-(g) of paragraph 12 in the apportionment complaint all allege, in one form or another, that Glidden improperly recommended a paint that was not appropriate for the particular purpose for which Crosscup intended to use the product. These types of allegations fall squarely within the language of § 52-572m that product claims include those arising out of a "breach of warranty, express or implied." Indeed, the allegations made by Crosscup here are best characterized as a claim of breach of an express or implied warranty of fitness for a particular purpose, one of the most traditional product liability claims in our common law. See, e.g., Wagner v. Clark Equipment Co., 259 Conn. 114, 788 A.2d 83 (2002); 1 D. Owen, M. Madden M. Davis, Products Liability (3d ed. 2000) § 4:8, p. 159-62; cf. General Statutes § 42a-2-315 (governing claims for commercial harm).
In subparagraphs (d) and (e) of paragraph 12 of the apportionment complaint Crosscup alleges that Glidden Paint was negligent in that it failed to warn Crosscup that the particular paint in question would become slippery when wet and that it should add texturing materials to the paint before using it in high pedestrian areas. These allegations are obviously failure to warn claims that are explicitly included within the statutory definition of product liability claims.
Crosscup relies on two superior court decisions: New Haven Terminal, Inc. v. Hungerfords, Inc., judicial district of New Haven, Docket No. CV 05 000015 (August 8, 2007, Cosgrove, J.) [44 Conn. L. Rptr. 258]; and Alevras v. United Builders Supply Co., Inc., judicial district of New London, Docket No. CV 05 002473 (June 21, 2006, Jones, J.) [414 Conn. L. Rptr. 499]; to support its assertion that conduct based negligence claims are not within the statutory definition of product liability claims. Neither of these cases supports Crosscup's position.
In each of these cases, the plaintiff alleged that the defendant supplied the plaintiff with a different product than what had been ordered or purchased by the plaintiff. Under those circumstances, both courts found that the gravamen of the plaintiff's claim did not involve an assertion: (1) that either the ordered product ordered by the plaintiff, or the product that was actually supplied by the defendant, was defective in some manner; or (2) that the manufacturer or seller failed to warn of the product dangerous propensities. New Haven Terminal, supra, Superior Court, Docket No. CV 05 000015; Alevras, supra, Superior Court, Docket No. CV 05 002473. Instead, the plaintiff's allegations of wrongdoing related to the commercial activities in supplying a product different from what had been ordered and therefore did not involve any claim regarding a defective product.
A failure to warn, by itself, constitutes a product defect. See, e.g., Sharp v. Wyatt, 31 Conn.App. 824, 833, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).
In this case, Crosscup does not allege that Glidden Paints received a different paint from what they had ordered or purchased. Instead, Crosscup's contention is that the product ordered from and supplied by Glidden Paints was defective because it was not accompanied by appropriate warnings or that it was not fit for the purpose for which Glidden Paints had expressly or impliedly warranted that it would be fit. These are claims that fall squarely with the definition of a products liability claim and therefore may not be brought in an apportionment complaint. Because the apportionment complaint is legally insufficient, it must be stricken.
Having concluded that the apportionment complaint is legally insufficient, the court next turns to Glidden Paints' motion to dismiss Count Four of both the plaintiff's and intervening plaintiffs' complaints. As noted above, Glidden Paints moves to dismiss these counts on the grounds that because the court lacks jurisdiction over Glidden Paints as an apportionment defendant, Glidden Paints is not a proper party to the action, and therefore is not subject to cross claims filed by the plaintiff and intervening plaintiff.
In light of the court's conclusion that Glidden Paints has not raised an issue relating to the court's jurisdiction over the apportionment complaint, the underlying premise of Glidden Paints' motion no longer exists. Under these circumstances, the Court believes that the parties should be given the opportunity to file supplemental briefs regarding what effect the striking of the apportionment complaint has on the court's jurisdiction over the cross claims filed by the plaintiff and the intervening plaintiffs. The parties should file simultaneous, supplemental briefs on this issue on or before November 6, 2008.
CONCLUSION
Glidden Paints' motion to strike the apportionment complaint is granted (#131). Glidden Paint's motion to dismiss Count Four of the plaintiff's and intervening plaintiffs' complaints is marked off and should be reclaimed after the filing of the supplemental briefs.