Opinion
No. CV 07 5013338
May 7, 2008
MEMORANDUM OF DECISION
FACTS
This action arises out of the plaintiff's purchase of a motor vehicle that was manufactured and warranted by the defendant, Daimler Chrysler Company, LLC. In the three-count complaint, the plaintiff, Christopher Meier, alleges that he purchased a 2002 Dodge Ram on April 29, 2002, for $28,000. In consideration therefor, the defendant issued one or more written warranties to the plaintiff on particular parts of the vehicle. The vehicle's transmission was "nonconforming," and the plaintiff reported this to the defendant on various dates, including May 11, 2007. The defendant attempted to repair the vehicle, but was not able to do so, and, as a result, the plaintiff is unable to use it for the purposes for which he intended. The plaintiff notified the defendant that he intended to revoke his acceptance of the vehicle and asked the defendant to return the money he paid for it. The defendant refused the plaintiff's request.
The plaintiff commenced this action on August 7, 2007, when a marshal served the writ, summons and complaint on the defendant. In counts one through three, respectively, the plaintiff alleges claims against the defendant for violation of the federal Magnuson-Moss Warranty — Federal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. § 2301 et seq., the Connecticut Uniform Commercial Code — Sales (UCC), General Statutes § 42a-2-101 et seq., and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. He seeks to recover the full price he paid for the vehicle, incidental and consequential charges and damages, punitive damages, costs and attorneys fees. The defendant filed an amended answer in which it denies the material allegations of the plaintiff's complaint, and asserts thirty-nine special defenses, including that each claim is barred by the applicable statutes of limitation.
On December 27, 2007, the defendant filed a motion for summary Judgment, accompanied by a memorandum of law, in which it argues that all three of the plaintiff's claims are barred by the applicable statutes of limitation and that the CUTPA claim is barred by the economic loss doctrine. On February 27, 2008, the plaintiff filed a memorandum in opposition to the motion for summary judgment in which he argues that his claims are not barred by limitations or by the economic loss doctrine. The plaintiff submitted his own affidavit, and both parties submitted an unauthenticated document which they refer to as the warranty that the defendant extended to the plaintiff on the vehicle at issue. The court heard the matter on the short calendar on February 27, 2008.
DISCUSSION
"Practice Book [ § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
In counts one and two, the plaintiff alleges that the defects in his vehicle constitute a breach by the defendant of an express warranty, an implied warranty of merchantability and an implied warranty of fitness for a particular purpose and that he has been damaged by the defendant's breach and failure to honor the warranties. According to the defendant, the claims that the plaintiff alleges in counts one and two are barred by the four-year limitations period contained in the UCC.
Inasmuch as the Magnuson-Moss Act does not contain a statute of limitations, the court is guided by "the usual rule that, when Congress has failed to provide a statute of limitations for a federal cause of action, a court `borrows' or `absorbs' the legal time limitation most analogous to the case at hand." Lampf, Pleva, Lipkind, Prupis Petigrow v. Gilbertson, 501 U.S. 350, 355, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991); see also Lopes v. Farmer, 284 Conn. 384, 388 (2008). In accordance with this rule, various courts have concluded that "the most appropriate statute of limitations from which to borrow for [a] Magnuson-Moss Act claim is the four-year limitation in [the state] Uniform Commercial Code § 2-725"; Murungi v. Mercedes Benz Credit Corp., 192 F.Sup.2d 71, 79 (W.D.N.Y. 2001); as it is "the closest analogous state limitations period." Id., 78; see also cases cited therein.
In Connecticut, that limitations provision is General Statutes § 42a-2-725, which provides in relevant part,
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered . . .
The defendant contends that the exception contained in subsection (2) does not apply here because the warranties at issue are "repair and replacement" warranties or implied warranties, which, by law, do not extend to future performance. The plaintiff counters that his claims fall within the exception set out in § 42a-2-725(2) because the warranties that he received from the defendant expressly extended to future performance, in that in each warranty, the defendant stated that it would repair and replace any defects in the vehicle's various systems that arose within three to eight years of, presumably, the date of delivery. The plaintiff also contends that under the defendant's interpretation, he would be left without any recourse for the defendant's breach of the warranties that extended beyond four years.
As the defendant correctly points out, this issue is controlled by the Connecticut Supreme Court's decision in Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 709 A.2d 1075 (1998). In that case, the plaintiffs purchased gas turbine engines from the defendant, and brought, inter alia, breach of warranty claims against the defendant in which they alleged that the engines did not operate efficiently and economically. Id., 129-30. The defendant raised the special defense that the warranty counts were barred by the four-year time limitation of § 42a-2-725 because the plaintiffs did not commence the action within four years of the date that the defendant delivered the engines to them. The defendant then filed a motion for summary judgment on this ground. The trial court concluded that the warranty claims were time barred, except for the plaintiffs' allegation that the defendant breached the clause requiring the defendant, "for a period of one year from the date of acceptance of the engines, to repair or replace defective material and equipment." Id., 133. The matter proceeded to trial on the repair and replacement clause, and the court eventually directed a verdict for the defendant on the basis of insufficient evidence. On appeal, the plaintiffs argued, inter alia, the trial court "improperly limited the scope of the repair or replacement clause by refusing to recognize its incorporation of other warranty obligations," and abused its discretion in limiting the evidence they were allowed to present regarding this clause. Id., 149.
As the court stated, however,
[b]efore we reach these claims . . . we must consider an antecedent question concerning the relationship between the repair and replacement clause and the provisions of § 42a-2-725. Without establishing such a relationship, the plaintiffs cannot prevail on their warranty claim. The ultimate issue raised by the defendant's motion for summary judgment must be decided by determining the date of accrual of the plaintiffs' warranty claims for defective performance of the engines themselves.
The defendant argues, and we agree, that the repair or replacement clause contains no terms that, as a matter of law, would constitute an explicit warranty of future performance, as § 42a-2-725(2) requires. In the event of defects in the engines, the clause describes no more than a contractual commitment by the defendant, for a limited period of time, to provide remedies additional to those provided by article 2 of the Uniform Commercial Code. It is irrelevant that the plaintiffs have attached a warranty label to the clause. Putting a [warranty] tag on a [non-warranty clause] will no more change its essential character than calling a bull a cow will change its gender . . . In light of its plain language, we conclude that the clause cannot be construed either as a new warranty of performance or as an additional commitment for future performance of other implied or express remedies.
Although this question is one of first impression for this court, decisions in other jurisdictions support our construction of the repair and replacement clause. State courts around the country have concluded that such clauses provide a buyer no relief other than that expressly promised by the language of the clause. Consequently, they too have held that a promise to repair or replace, unless it contains express language to the contrary, is not a promise of future performance with respect to § 42a-2-275(2). . . . Accordingly, we reject the plaintiffs' contention that the repair or replacement clause in the purchase agreement tolls the running of the statute of limitations under § 42a-2-725.
As noted by the Nebraska Supreme Court, "[t]he existence of future performance warranties has been a highly litigated area of law . . . [The] cases provide us with some guideposts: (1) a future performance warranty must be explicit, (2) a future performance warranty must be express, and (3) a limited warranty to repair or replace does not extend to future performance . . . Courts . . . focus on the word `explicitly' because the exception to § 2-725(2) [the Nebraska UCC limitation statute] is just that — an exception — and, as such, courts reason that it should be interpreted quite narrowly . . . Thus, in order to constitute a future performance warranty, the terms of the warranty must unambiguously indicate that the manufacturer is warranting the future performance of the goods for a specific period of time . . . Second, because § 2-725 mandates that a warranty must explicitly extend to future performance, this court has held that only an express warranty will trigger the exception . . . Third, this court has found that a limited warranty to repair or replace does not extend to future performance . . . The justification is that a warranty to repair or replace goods only anticipates potential defects and specifies that buyer's remedy during the stated period and does not explicitly guarantee the proper performance of goods for some period of time into the future." (Citations omitted; internal quotation marks omitted.) Controlled Environments Construction, Inc. v. Key Industrial Refrigeration Co., 266 Neb. 927, 933-35, 670 N.W.2d 771 (2003). But see Rempe v. General Electric Co., 28 Conn.Sup. 160, 254 A.2d 577 (1969), in which the court held that a warranty that warranted that a garbage disposal unit "would work properly during its lifetime"; id., 161; is the type that "`explicitly extends to future performance of the goods.' [General Statutes] § 42a-2-725(2) . . . For this type of warranty, the cause of action for breach accrues . . . when `the breach is or should have been discovered.' [General Statutes] § 42a-2-725(2) . . ." Rempe v. General Electric Co., supra, 28 Conn.Sup. 163.
(Citations omitted; emphasis in original; internal quotation marks omitted.) Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 149-51.
It is noted that, the holding in Flagg is consistent with the following principle, as recently articulated by the Connecticut Supreme Court: "Public policy generally supports the limitation of a cause of action in order to grant some degree of certainty to litigants . . . The purpose of [a] statute of limitation . . . is . . . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007).
Similarly, in the present case, the warranties that the plaintiff relies upon provided that the defendant would repair certain defective items on the plaintiff's vehicle at no charge to the plaintiff, if the defect arose during the time specified therein. None of the warranties contain language that amount to an explicit representation as to the future performance of the vehicle or any part thereof. The warranty that applies to the transmission does not state, for example, that the defendant warrants that the vehicle's transmission will not break down for at least eight years. Instead, it states that if the transmission breaks down within eight years, the defendant will repair or replace it.
For his argument to the contrary, the plaintiff relies on Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813 (6th Cir. 1978) (applying Ohio law), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396 (1979). The Connecticut Supreme Court referred to this case in a footnote in Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 150-51 n. 39, as a case to refer for "an example of a differently worded clause that warranted a different construction . . ." The warranty that the Connecticut Supreme Court was referring to provided in relevant part: "Seller warrants the equipment manufactured by it will be free from defects in workmanship and material . . . If any part be found within one year from date of delivery to have been defective when delivered . . . and provided immediate notification in writing is given to the Seller, the Seller will replace or repair such part." Standard Alliance Industries, Inc. v. Black Clawson Co., supra, 587 F.2d 816-17. In that case, a few months after the defendant delivered the machine to the plaintiff, the plaintiff informed the defendant that it was defective. The defendant attempted to repair the machine without success, and the plaintiff filed suit against the defendant approximately a year and a half after the delivery date. Following a trial, the jury found in favor to the plaintiff on its claim that the defendant breached the performance warranty. On appeal, the defendant argued that this claim was barred by the one-year limitations period that the parties agreed to in their contract. The court determined that the warranty at issue was one of the "rare examples where express warranties were found to explicitly extend to future performance . . ." Id., 820. The court explained that, "[i]n the case at bar, [the defendant] expressly warranted the machine for a period of one year. Thus, we hold that the warranties explicitly extended to future performance for a period of one year. Therefore, under § 2-725(2) the cause of action accrued when [the plaintiff] discovered or should have discovered that the machine was defective, so long as the defect arose within the warranty period." Standard Alliance Industries Inc. v. Black Clawson Co., supra, 587 F.2d 821.
Admittedly, with the exception of the language in which the defendant warranted that "the equipment manufactured by it will be free from defects in workmanship and material"; id., 816; it is difficult to distinguish the warranty in Standard Alliance Industries Inc. v. Black Clawson Co., from the warranty in Flagg Energy Development Corp. v. General Motors Corp., supra. As a federal district court recently noted, however,
[s]ix years [after the Standard Alliance decision], the Ohio Court of Appeals . . . addressed "the question of whether the `repair or replace' language is a warranty or a limitation of available remedies." Allis-Chalmers Credit Corporation v. Herbolt, 17 Ohio.App.3d 230, [236], 17 Ohio B. 496, 479 N.E.2d 293 (1984) . . . [T]he . . . Court of Appeals recognized the Sixth Circuit Standard Alliance decision which preceded it . . . Granting due consideration to the appellant's argument that an obligation to "repair or replace defective parts for one year" extends "to the future performance of the product"; construing the applicable statutory language in R.C. § 1302.98(B) [the Ohio UCC limitations statute]; and recognizing that Standard Alliance held the same view as the appellant . . . the Ohio appellate court nevertheless disagreed . . . [T]he appellate court in Allis-Chalmers . . . announced its divergent opinion [as follows]:
However, all promises are not warranties. An express warranty is a promise which requires that the . . . goods shall conform to the affirmation or promise. Here, the promise required that the seller's conduct conform to the promise, not that the product's performance conform to the promise. Accordingly, we find that the repair of replace language is not a warranty extending to future performance under R.C. § 1302.98(B), but is a remedy. Contra Standard Alliance Indus., supra. Our conclusion conforms not only to our remedy/warranty analysis, but also to the requirements of R.C. § 1302.98(B) that a warranty "explicitly" extend to the future performance of the goods before the discovery rule may be applied.
The warranty at issue in Allis-Chalmers provided in relevant part that the defendant warranted that its product was "`merchantable and free from defects in workmanship and material at the time of shipment . . .' If a product fails to conform to this warranty, [the defendant] promises to `repair, or at its option replace . . .' any such part . . . provided that the part is returned to the company's factory or to an authorized dealer within twelve months." Allis-Chalmers Credit Corp. v. Herbolt, supra, 17 Ohio.App.3d 236.
. . . Allis-Chalmers, [ supra], 17 Ohio.App.3d [237] . . .
The instant matter is before this Court on the basis of federal diversity jurisdiction . . . In that light, this Court, like Standard Alliance, is bound to apply the substantive law of the State of Ohio . . . That panel was required, in 1978, to ascertain what would most likely be the Ohio substantive law regarding repair or replacement warranties, and the application of the four-year statute of limitations for breach of warranty actions pursuant to R.C. § 1302.98. In 1984, the Allis-Chalmers decision provided the direct Ohio case authority the Sixth Circuit was lacking a few years earlier. This court must believe, if the Sixth Circuit had the benefit of an Ohio reported appellate decision, directly on point, it would have ruled differently. Under Allis-Chalmers, which recognized, but disagreed with, Standard Alliance, repair or replace language is not a warranty extending to future performance . . . Furthermore, without an "explicit" extension to future performance, the discovery rule does not operate.
(Citation omitted.) Zaremba v. Marvin Lumber Cedar Co., 458 F.Sup.2d 545, 550-51 (N.D. Ohio 2006).
Regarding repair and replacement provisions such as the one at issue in the present case, in Tittle v. Steel City Oldsmobile GMC Truck, Inc., 544 So.2d 883 (Ala. 1989), one of the decisions that the Connecticut Supreme Court relied upon in Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 150, the court explained:
To warrant to make needed repair to . . . equipment is not a warranty extending to its future performance. All that the supplier promises is that if the equipment needs repairs he will make them. It does not promise that in the future the goods will not fall into disrepair or malfunction . . . but only that if [they do], the supplier will repair [them]. [Underlying] the warranty to make needed repairs is the assumption that the goods may fall into disrepair or otherwise malfunction. No warranty that the goods will not, is to be inferred from the warranty to make needed repairs . . .
In Ontario Hydro v. Zallea Systems, Inc., 569 F.Sup. 1261 (D.Del. 1983), Chief Judge Latchum expressed the distinction between these two types of warranties in this manner: "The key distinction between these two kinds of warranties is that a repair or replacement warranty merely provides a remedy if the product becomes defective, while a warranty for future performance guarantees the performance of the product itself for a stated period of time. In the former case, the buyer is relying upon the warranty merely as a method by which a defective product can be remedied which has no effect upon his ability to discover his breach. In the latter instance, the buyer is relying upon the warranty as a guarantee of future performance and therefore has no opportunity to discover the breach until the future performance has been tested." . . . Ontario Hydro, at 1266.
(Citations omitted; emphasis in original.) Tittle v. Steel City Oldsmobile GMC Truck Inc., supra, 544 So.2d 889.
For the foregoing reasons, the repair and replacement warranties that the plaintiff relies upon in this case are not the type of warranties that extend to the future performance of the vehicle. The same is true for his breach of implied warranty claims, as such warranties are also subject to the four-year limitation of § 42a-2-725; Beckstein v. Potter Carrier, Inc., 191 Conn. 150, 165, 464 A.2d 18 (1983); which, for such claims, begins to run on the date of delivery. See Gulash v. Stylarama, Inc., 33 Conn.Sup. 108, 116, 364 A.2d 1221 (1975). Accordingly, the four-year limitations provision of § 42a-2-725(1) applies to the plaintiff's claims for breach of warranty and breach of the Moss-Magnuson Act. Because the plaintiff did not commence this action within four years of the date of tender of delivery of the vehicle, counts one and two are barred by limitations. The court grants the defendant's motion for summary judgment as to counts one and two.
The defendant argues that it is entitled to summary judgment on count three, the plaintiff's CUTPA claim, because the claim is barred by the limitations provisions of § 42a-2-725 and/or General Statutes § 42-110g(f), and by the economic loss doctrine. The plaintiff counters that § 42a-2-725 does not apply to this claim and that it is not barred by § 42-110g(f) because the latter is an occurrence statute, and the violation did not occur until the defendant failed to repair the transmission, which occurred in May 2007. The plaintiff further contends that the economic loss rule does not apply as this case does not involve two sophisticated parties, and he is a private consumer.
As to the defendant's first argument, it is clear that the statute of limitations that applies to count three is § 42-100g(f), as it "applies to all claims brought under CUTPA without regard to the nature of the underlying unfair trade practice that has been alleged." Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 606-07, 894 A.2d 335 (2006), aff'd on other grounds, 284 Conn. 193, 931 A.2d 916 (2007).
Section 42-110g provides in relevant part: "(a) Any person who suffers any ascertainable loss of money or property . . . as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages . . . (f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." As the plaintiff recognizes, § 42-110g(f) is an occurrence statute. In discussing this and other such statutes, the Connecticut Supreme Court has determined that the
CT Page 7835
legislative choice of [such] language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred . . . We have held [in construing another limitations statute], that even where the wrongful act could not reasonably have been discovered until after the statute had run, any action seeking damages for such an "act or omission" was barred . . . We are unable to perceive any significant distinction . . . between the "act or omission" reference [in the other statute] and the "occurrence of a violation" phrase in § 42-110g(f) . . .
(Citations omitted.) Fichera v. Mine Hill Corp., 207 Conn. 204, 212-13, 541 A.2d 472 (1988).
Thus, paraphrasing the Appellate Court, "[t]o demonstrate [its] entitlement to summary judgment on timeliness grounds, the defendant, through [its] affidavit, needed to establish that there was no viable question of fact concerning the plaintiff's obligation to have brought [his] action . . . no later than three years . . . from the [occurrence of a violation]." Rockwell v. Quinter, 96 Conn.App. 221, 232, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). The plaintiff bases his CUTPA claim on his allegations that the defendant made the following untrue or false representations: the vehicle was covered by a valid warranty that would cause repairs to be made within the warranty period; the vehicle was covered by an effective warranty as a remedy; the vehicle was fit for ordinary purposes; the vehicle was merchantable. By incorporation, the plaintiff alleges that all the warranties he relies upon were made by the defendant "[a]t the time of delivery of the vehicle and at all times subsequent thereto . . ." The parties do not appear to dispute that the vehicle was delivered to the plaintiff in 2002, and, as previously noted, the plaintiff commenced this action in 2007.
The plaintiff also alleges, however, that the defendant breached its obligations under the warranty and "exhibited a pattern of inefficiency, stalling and/or incompetence with regard to its warranty repair work." The only evidence regarding when this conduct occurred comes from the plaintiff's affidavit in which he attests to specific conduct by the defendant and its dealership that occurred in May and June 2007, in regard to the problems he had with getting the vehicle's transmission repaired. The defendant has not submitted an affidavit or any other evidence that establishes that all the conduct that gives rise to the plaintiff's CUTPA claim occurred more than three years before the plaintiff commenced this action. When a defendant that is seeking summary judgment on the basis of limitations does not submit evidence that "eliminate[s] all factual issues raised by the allegations of the complaint, the burden of proof never [shifts] to the plaintiff. As such, [he] was not obligated to present evidence to survive summary judgment, but instead, could rest on those allegations alone." Rockwell v. Quinter, supra, 96 Conn.App. 233. In these circumstances, it is not proper for the trial court to grant summary judgment as to count three on the ground of limitations. Id.
The defendant's next argument is that the plaintiff's CUTPA claim is barred by the economic loss rule.
[T]he economic loss doctrine . . . is a judicially created doctrine which prohibits recovery in tort where the basis for that tort claim arises from violation of a contract and damages are limited to purely economic losses as opposed to personal injury or property damages . . . There is an issue [as to] whether . . . the doctrine has been adopted in Connecticut. Without labeling the concept as the "economic loss doctrine," the Supreme Court has twice declined to apply the concept to claims of negligent misrepresentation arising out of breach of contract claims. D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 218-19, [ 520 A.2d 217] (1977) and Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, [ 657 A.2d 212] (1995). But in Flagg Energy Development Corp. v. General Motors Corp., [ supra, 244 Conn. 153], without mentioning either D'Ulisse-Cupo or Williams Ford, Inc., the court, with reference to the "economic loss rule," affirmed the striking of negligent misrepresentation and CUTPA counts in the context of a claim for breach of contract and breach of warranty damages relating to allegedly defective gas turbine units that were manufactured by the defendant. The court accepted the defendant's position that the plaintiff in that context was limited to its remedies under the Uniform Commercial Code . . . and that the misrepresentation and CUTPA claims were inconsistent with the UCC and therefore displaced by §§ 42a-1-103 and 42a-2-721 of the Connecticut UCC.
Hoydic v. B E Juices, Inc., Superior Court, complex litigation docket at Stamford, Docket No. 08 CV 03 4010104 (February 27, 2008, Jennings, J.).
Specifically, in Flagg, the Supreme Court stated that it "agreed with the holdings of cases in other jurisdictions that commercial losses arising out of the defective performance of contracts for the sale of goods cannot be combined with negligent misrepresentations . . . These authorities are particularly persuasive in the circumstances of this case, in which the misrepresentation and CUTPA claims depend upon allegations of fact that are identical to those asserted in their claims [for breach of contract]." (Citations omitted.) Flagg Energy Development Corp. v. General Motors Corp., supra, 244 Conn. 153-54.
Since the decision in Flagg, no appellate authority has addressed whether the economic loss doctrine is recognized in Connecticut . . . Consequently, a split has emerged [in the Superior Court] as to whether the ruling in Flagg bars tort claims for economic loss in non-product liability cases . . . [In several cases, the court has] found that the holding in Flagg amounts to a recognition of the doctrine and warrants an extension of the doctrine well beyond product liability cases . . . There is also a line of cases [which is in the majority] that refuses to adopt the economic loss doctrine or adopts the doctrine in limited circumstances . . . The latter line of cases relies on the following reasoning . . . Upon close examination, [the decision in Flagg] cannot be reasonably read to create a general rule barring all tort claims based in whole or in part upon alleged breaches of contract . . . Instead, it can only be read to bar such claims in the particular circumstances there at issue, to wit: where both the plaintiff and the defendant are sophisticated commercial parties, and their dispute arises from the defendant's allegedly defective performance under a contract for the sale of goods.
(Internal quotation marks omitted.) Paliwoda v. Mathews, Superior Court, judicial district of Fairfield, Docket No. CV 02 0398249 (October 16, 2006, Gilardi, J.).
Judges utilizing this reasoning, which this court applied by implication in Triton Environmental, Inc. v. Dalton Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. 03 0482647 (February 16, 2007, Holden, J.), have refused to extend the economic loss doctrine in cases in which the plaintiff, like the plaintiff in the present case, is not a sophisticated party and is not seeking to recover for commercial losses. See Paliwoda v. Mathews, Superior Court, Docket No. CV 02 0398249. In addition, other judges have determined that the doctrine does not bar claims that are based on allegations of misrepresentations that are distinct from the plaintiff's breach of contract allegations. Triton Environmental, Inc. v. Dalton Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. CV 03 0482647 (January 10, 2005, Levin, J.) ( 38 Conn. L. Rptr. 518, 523); and Metcoff v. NCT Group, Inc., Superior Court, complex litigation docket at Waterbury (January 10, 2005, Alander, J.). In this case, as explained above, at least some of the plaintiff's allegations of misrepresentations are distinct from his breach of contract allegations. Count three is not barred by the economic loss rule.
For the foregoing reasons, the court denies the defendant's motion for summary judgment as to count three.
CONCLUSION
The court grants the defendant's motion for summary judgment as to counts one and two of the plaintiff's complaint, and denies the motion as to count three.