Opinion
No. CV-07-5012193S
August 13, 2009
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The defendant, Caflon Company ("Caflon"), has moved to strike Count One of the Amended Third-Party Complaint of the co-defendant/third-party plaintiff, Kassoy, LLC, on the grounds that a claim for common-law indemnification between co-defendants is legally insufficient under the Products Liability Act.
Factual and Procedural History
This is a product liability action brought by Keysa Mateo and Keila Colon for injuries allegedly sustained by the minor plaintiff, when she had her left ear cartilage pierced by the defendant, Luis Pereira. The plaintiffs allege that Pereira purchased the ear piercing equipment and earrings designed, manufactured, distributed and/or sold by Kassoy, LLC ("Kassoy").
Kassoy filed a Motion to Implead Caflon as a third-party defendant. Thereafter the plaintiffs amended their complaint to bring a direct action against Caflon based on products liability.
Kassoy's Amended Third-Party Complaint is in three counts. Count One seeks common-law indemnification. Count Two seeks contribution on the Products Liability Act. Count Three claims that Caflon breach express and implied warranties of fitness.
Discussion of the Law and Ruling
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., CT Page 13974 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
"It is incumbent on a Plaintiff to allege some recognizable cause of action" in the complaint and it is not the burden of the defendant to attempt to correct the deficiency. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). A motion to strike is an appropriate means of presenting to the court legal issues at the outset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "Whenever a party wishes to contest . . . the legal sufficiency of any such complaint . . . or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleadings or part thereof." George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980).
Caflon asserts that the plaintiffs have filed a direct action against it under the Products Liability Act and, therefore, common-law indemnification as alleged in the First Count of Kassoy's Third-Party Complaint (which is really a cross claim) is not a viable cause of action.
In Krytatas v. Stop Shop, Inc., 205 Conn. 694, 535 A.2d 357 (1988), the Connecticut Supreme Court concluded that common-law indemnity principles do not apply in the context of a statutory product liability action. In Kyrtatas, the plaintiff was injured when an aerosol can of Stop Shop brand window cleaner exploded. The plaintiff brought a products liability action against Stop Shop, Shield Packing Co. And Crown Cork Seal Co. Stop Shop filed a cross-claim for common-law indemnification against Shield. In considering whether Shield was required to indemnify Stop Shop for its liability arising out of the judgment in the case, the Court concluded that "the common law doctrine of indemnification is inconsistent with provisions of the Products Liability Act concerning comparative responsibility, award of damages, and contribution under General Statutes § 52-572o." Kyrtatas v. Stop Shop, supra, at 699. The Court further explained that:
These three subsections cannot be reconciled with the common-law doctrine of indemnification. Comparative responsibility is inconsistent with indemnification because the former allows a jury to assign liability in specific proportion among several defendants on the basis of the evidence presented while the latter doctrine arose in response to the common law prohibition against contribution, and applies only in situations in which a passive joint tortfeasor has no actual responsibility for a tort. Indemnification is also irreconcilable with the product liability act because the legislature in subsection (e) of 52-572o has abolished the common law prohibition against contribution in the context of these suits. Kyrtatas v. Stop Shop, supra, at 700.
One year after Kyrtatas, the Supreme Court decided the case of Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989). In Malerba, the plaintiff brought an action against Cessna Aircraft Co. for personal injuries sustained in an airplane accident. Cessna filed a third-party complaint against the aircraft's owner and the aircraft's mechanic seeking recovery based upon common-law principles of indemnification. The plaintiff did not bring a direct action against the third-party defendants, as in the present case. Instead, the plaintiff moved to strike the third-party complaint and the trial court granted the motion, concluding that common-law principles of indemnification were abrogated by virtue of the Products Liability Act.
The Malerba Court reversed the trial court. "Based on the implicit language of the foregoing statutes, we conclude that common-law indemnification continues as a viable cause of action in the context of product liability claims and that the comparative responsibility principles that serve as its foundation do not bar a later determination of liability as between an indemnitee and an indemnitor." Id., 198-99. In footnote 9 of the Malerba decision, however, the Court stated: "We note that our holding in Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 702 n. 2, 535 A.2d 357 (1988), was specifically limited to its factual circumstances which are different from the procedural posture in which we find this case." Id., 198.
In light of the holdings in the Kyrtatas and Malerba decisions, there is a split of authority in the lower courts as to whether or not common-law principles of indemnification are abrogated by the Products Liability Act. The following superior courts found Kyrtatas to be controlling when the parties are first-party defendants: Evans v. Yamaha Motor Corp., 2003 Conn.Super. . LEXIS 3536 (December 19, 2003, Quinn, J.) [ 36 Conn. L. Rptr. 221]; Grenier v. New Haven Scaffolding, 2001 Conn.Super. . LEXIS 2130 (July 26, 2001, Peck, J.); Parziale v. Salvatore, 1998 Conn.Super. . LEXIS 2395 (August 14, 1998, Carroll, J.); Mirabella v. Yale-New Haven Hospital, 1994 Conn.Super. LEXIS 1750(July 5, 1994, Fracasse, J.); Buda v. Valley Diner, Inc., 1993 Conn.Super. . LEXIS 94 (January 20, 1993, Flynn, J.) [ 8 Conn. L. Rptr. 258]; U.S. Fidelity v. McDonnell Leasing, 6 Conn. L. Rptr. 495 (June 1, 1992, Rush, J.).
Other trial courts have allowed a cross claim for common-law indemnification based on Malerba: Rotonto v. Access Industries, Inc., 26 Conn. L. Rptr. 274 (Jan 20, 2000, Fineberg, J.); ITT Semiconductors v. Matheson Gas Products, 6 Conn. L. Rptr. 276 (April 8, 1992, Flynn, J.). Kassoy has cited the decision of this court, Brenner v. Laboratoire Biosthet, 8 CSCR 603 (May 7, 1993), as falling within this group. However, the cross-claim in that case was ordered stricken.
The court finds that Kyrtatas is controlling law under the circumstances of this case. A majority of the lower court decisions follow Kyrtatas when the defendants in a case are first-party defendants. Although there is general language in the Malerba opinion concerning the principles of indemnification as they relate to the Products Liability Act, Malerba did not overrule Kyrtatas. It limited its holding "to situations in which all potential defendants are parties to the suit." Kyrtatas, supra, 702 n. 2. Malerba holds that common-law indemnification continues as a viable cause of action in a product liability case in which a named defendant has filed a third-party complaint against a third-party defendant. The holdings are not inconsistent.
In the present case, as in Kyrtatas, the plaintiff has asserted direct claims against Kassoy and Caflon. Therefore, after trial, if the plaintiffs prevail, a verdict will be returned assigning a percentage of liability to all named defendants.
For the foregoing reasons, the court concludes the holding in Kyrtatas v. Stop Shop, Inc. applies in this case and grants Caflon's motion to strike Count One of Kassoy's third-party complaint/cross claim.