Summary
concluding that defendant that "was a contractor in the business of replacing windows and roofs" was not a product seller
Summary of this case from Mancinone v. Allstate Ins. Co.Opinion
No. 07-5007262
September 2, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #125
The plaintiff, Merrimack Mutual Fire Insurance Company, commenced the present action on November 21, 2007 by service of its two-count complaint upon the defendants, Jayne and Thomas Paradis and Thermalfit. Count two of the plaintiff's complaint is a products liability action against the defendant, Thermalfit. On April 30, 2009, Thermalfit (the defendant) filed its motion for summary judgment arguing that there is no issue of fact and that the defendant was not a "product seller" under the products liability statute, General Statutes § 52-572n(a). The plaintiff alleges the following relevant facts in its revised complaint.
The plaintiff filed its revised complaint, in response to an uncontested request to revise, on January 18, 2008. In its revised complaint the plaintiff states that its action against the defendant is brought pursuant to General Statutes § 52-572.
On or about March 30, 1999, Thomas and Jayne Paradis applied for a permit to repair the roof and windows on their property located at 134 Prospect Street in Norwich, Connecticut. The defendant contracted with the Paradises to perform said work and soon thereafter completed the job. The plaintiff alleges the defendant was negligent in its performance of the contract in that it, or its agents, used improperly sized and spaced roof rafters, failed to replace roof rafters that had been burned, charred or otherwise damaged, used particleboard as roof decking, covered evidence of burned and charred rafters with particleboard, used inadequate materials and made deficient repairs and/or faulty construction, and that the defendant used materials or constructed them not in accordance with building codes or standards. The plaintiff's complaint states a cause of action under § 52-572m, Connecticut's products liability statute, alleging that the roof installed by the defendant failed to perform as expected, causing damage to the property and monetary losses to the plaintiff's insured.
The plaintiff, Merrimack Mutual Fire Insurance Co., is the insurance company that is subrogated to the rights of Pamela Leblanc, the current owner of the property in question.
The defendant now seeks summary judgment arguing that it is not a "product seller" under § 52-572n(a) and therefore cannot be held liable in a products liability action. The defendant has submitted a memorandum in support of its motion for summary judgment as well as affidavits, certified deposition transcripts and several authoritative cases. The defendant argues that the contract in question did not specify the materials to be used in replacing the roof and that the defendant used whatever supplies were considered standard in the industry at the time. The defendant further argues that the work performed on the Paradises' home was service in nature and therefore it is entitled to judgment as a matter of law on the plaintiff's products liability action. The plaintiff argues in its memorandum in opposition that the circumstances surrounding the present case involve a hybrid sales-service contract and therefore the question of whether it falls within the Products Liability Act is one that is mixed of law and fact.
Specifically, the defendant has submitted the following: a certified copy of the deposition of Jayne Paradis dated January 21, 2009; an affidavit of Roger Matteau dated April 30, 2009, including an attached copy of the work bid specifications for 134 Prospect Street, Norwich, Connecticut; the certified copy of the deposition of Roger Matteau dated February 6, 2009; Leahey v. Lawrence D. Coon Sons, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 044002738 (July 14, 2006, Keller, J.); Klein v. Phelps, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 075003719 (July 19, 2007, Shapiro, J.) [44 Conn. L. Rptr. 2]; Lang v. Brom Builders, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 950369766 (February 3, 1998, Hartmere, J.) [21 Conn. L. Rptr. 225]; AMCAT Corp. v. Jansen Rogan Construction, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 960474249 (August 23, 1999, Robinson, J.); an affidavit of Michael St. George, dated April 30, 2009; and finally, a certified copy of the deposition of Christin Kuckert, dated March 11, 2009.
In support of its opposition, the plaintiff has submitted the following documents: a certified deposition transcript of Roger Matteau; an investigation report completed by Peter Vallas Associates, Inc. of the property at 134 Prospect Street, Norwich, Connecticut; a certified deposition transcript of Christine Kuckert; a certified deposition transcript of Thomas Paradis; a certified deposition transcript of Jayne Paradis; Luthy v. Eagle Leasing Co., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 970403340 (August 7, 2001, Munro, J.); Stephenson v. Ner Construction, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 970156341 (December 15, 2000, Mintz, J.); and finally Gervais v. Fred Brunoli Sons, Superior Court, judicial district of New Haven al Meriden, Docket No. CV 990270225 (December 1, 2000, Levine, J.).
"Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 913 Conn 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
The issue before the court is whether the installation of a roof constitutes the sale of a product under the Connecticut Products Liability Act, § 52-572m. "In order to maintain a product liability claim, a plaintiff must establish and prove that the defendant was engaged in the business of selling the product in question . . . The Connecticut Product Liability Act excludes from the definition of a `product seller' entities that are in the business of installation and entities that are in the business of repairs and service. Where the contract is basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods . . . Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product' it is outside the purview of our product liability statute . . . When distinguishing between a service and a product, some courts focus on the object of the contract . . . In Trugilo v. Hayes Construction Co., 66 Conn.App. 681, 785 A.2d 1153 (2001), the appellate court addressed the issue of whether a sidewalk constructed using the `form and pour' method was a product. It concluded that the essence of the relationship between the defendant and the buyer was the furnishing of a service, not the sale of a sidewalk, because the sidewalk was composed of concrete that was transported in liquid form to the site and then poured. The court also held that `. . . a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services.' Id. 685. There is no Connecticut appellate authority that addresses whether the construction of a building constitutes a sale of a product. Most Connecticut trial courts that have addressed the issue have held that a general contractor is not in the business of selling component parts that are incorporated into the structure of the building and, therefore, is not a `product seller' under the Product Liability Act . . ."
"The Restatement, Third, of Torts notes that courts have been reluctant to impose products liability on building contractors building and selling one building at a time unless they sell a building that contains a variety of appliances and other manufactured equipment or when the building itself has been prefabricated — and thus manufactured — and later assembled on or off the site. Restatement, Third, of Torts, § 19, comment e, 270-71 (1997). Some courts also have held mass-builders of large housing projects with standardized dwellings liable as product sellers . . ."
"Part of the problem is that Connecticut's product liability statute, unlike other states' laws and the Model Uniform Product Liability Act, does not define the word `product.' . . . Absent a controlling definition, whether a `product' is involved is sometimes determined by examining the public policies behind the imposition of strict liability in tort for defective products. Some of the policy considerations include: (1) the public interest in life and health; (2) the invitations and solicitations of the manufacturer to purchase the product; (3) the justice of imposing the loss on the manufacturer who created the risk and reaped the profit; (4) the superior ability of the commercial enterprise to distribute the risk of injury as a cost of doing business; (5) the disparity in position and bargaining power that forces the consumer to depend entirely on the manufacturer; (6) the difficulty in requiring the insured party to trace back along the channel of trade to the source of the defect in order to prove negligence; and (7) whether the product is in the stream of commerce. Thus, a swimming pool, built by a defendant contractor, was not a `product' because for one, the opportunity for cost spreading via mass-marketed products was nonexistent." (Citations omitted; internal quotation marks omitted.) Leahey v. Lawrence D. Coon Sons, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 044002738 (July 14, 2006, Keller, J.).
In Leahey, the court was faced with the question of whether the construction of a tobacco barn constituted a "product seller" under the products liability act. The court found that there was no evidence submitted to show that the defendant was engaged in the business of selling lumber or hardware, that the contract for service did not specify the hardware or boards to be used, that the contract between the parties was basically for the rendition of a service and therefore, the defendant was not a "product seller" under the act. Leahey v. Lawrence D. Coon Sons, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 044002738 (July 14, 2006, Keller, J.). Similarly, in Klein v. Phelps, Judge Shapiro of the Superior Court found that the renovation of a kitchen did not make the defendant contractor a "product seller" under the act. In that case, the essence of the contract was to provide the service of renovating a kitchen and although it required the contractor to provide the supplies needed, it did not specifically itemize any individual product. Klein v. Phelps, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 075003719 (July 19, 2007, Shapiro, J.) [44 Conn. L. Rptr. 2].
The plaintiff has not submitted any cases that support its argument that the construction of a new roof or the repair of an existing roof is a hybrid sales-service contract. The only case that comes close is that of Luthy v. Eagle Leasing Co., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 970403340 (August 7, 2001, Munroe, J.). In Luthy, the plaintiff filed a complaint sounding in negligence against the defendant, The Eagle Leasing Company, who had sold to his employer a new Whiting Overhead Door and two section door tracks, which it installed on a trailer at his employer's request. The plaintiff was injured when the door that was installed fell on him. The defendant filed a motion for summary judgment arguing that the plaintiff's negligence claim fell under the Connecticut Products Liability Act and therefore was preempted by said act. Judge Munro denied summary judgment, finding an issue of fact remained as to whether the installation of the door and tracks was a service or the sale of a product, while noting the statute of limitations for the products liability claim had run. The Luthy case is distinguishable from the present matter in two respects. First, that case was a negligence action which the defendant was trying to prove was preempted by the Products Liability Act, for which the statute of limitations had run. Second, the contract in that case called for specific products that were being purchased by the plaintiff's employer from the defendant, who was also to install the product. Judge Levine later allowed the plaintiff in Luthy to amend his complaint to add a products liability claim that would relate back to before the running of the statute of limitations. See Luthy v. Eagle Leasing Co., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 970403340 (December 13, 2001, Levine, J.) [31 Conn. L. Rptr. 139].
Another decision of Judge Levine's is cited by the defendants in support of their opposition to summary judgment. It is the only case submitted by the defendant that finds an issue of fact as to whether the installation of a ceiling was a service or the sale of a product. See Gervais v. Fred Brunoli Sons, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 990270225 (December 1, 2000, Levine, J.). That case is distinguishable from the present matter in that the only document submitted in support of the defendant's motion for summary judgment was a copy of the relevant service contract for installation of an acoustic ceiling, which Judge Levine held did not clear up all issues of fact.
The Leahey court was correct in its finding that "[m]ost Connecticut trial courts that have addressed the issue have held that a general contractor is not in the business of selling component parts that are incorporated into the structure of the building and, therefore, is not a `product seller' under the Product Liability Act." Leahey v. Lawrence D. Coon Sons, Inc., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 044002738 (July 14, 2006, Keller, J.). In the present matter, the defendant was a contractor in the business of replacing windows and roofs. It was not, nor is it today, in the business of selling the component parts that are used in such replacements. Further, the contract at issue did not specify which products to be used in the replacement of the roof. In no way was the roof prefabricated or manufactured and later assembled on or off the site. The defendant's memorandum of law and supporting affidavits, certified deposition transcripts and cited authority make it clear that no genuine issue of fact remains and that the defendant is not a "product seller" under § 52-572n(a). The plaintiff's opposition has not shown any reason why the defendant is not entitled to judgment as a matter of law. For the foregoing reasons, the defendant Thermalfit's motion for summary judgment as to count two of the plaintiff's complaint is granted.