Opinion
No. CV 06 5002572
January 22, 2010
MEMORANDUM OF DECISION
The defendant, Lafarge Building Materials, Inc., moves to strike the second count and the fourth count of the plaintiff OG Industries, Inc.'s revised third amended complaint alleging breach of warranty claims. The defendant contends that the plaintiff fails to allege in those counts that there is privity between the parties, which it asserts is necessary to state a legally sufficient cause of action for breach of warranty. For the reasons hereinafter discussed, the court grants the defendant's motion to strike both counts.
The court heard this matter at short calendar on December 14, 2009. The plaintiff's complaint contains fourteen counts. The defendant's motion to strike attacks only the even numbered counts. In the even-numbered counts, the plaintiff seeks to recover the "delay damages" allegedly sustained by a third party, the Houstons. In the claims in the odd-numbered counts, the plaintiff seeks direct and consequential damages. At the oral argument before this court, the plaintiff agreed that counts six and fourteen were legally insufficient, and, therefore, the court granted the motion to strike these counts without objection. The court also orally granted the defendant's motion to strike counts eight, ten and twelve. Therefore, the second and fourth counts are the only remaining counts at issue.
The court accepts the following facts as true for purposes of deciding the motion. In December 2002, the plaintiff entered into an agreement with the Tim Romano Company, a masonry services company, in which the plaintiff agreed to supply limestone veneer for a newly constructed home owned by Alan and Tamara Houston (the Houstons) in North Castle, New York. During 2003, the plaintiff bought 774.59 tons of limestone from the defendant at a cost of $163,454.68. Prior to the plaintiff's purchase of the limestone, it informed the defendant that the limestone was going to be used as exterior veneer in a home construction project. The defendant "represented, advertised and orally warranted that the limestone was fit for use as an exterior veneer in home construction." In 2003 approximately twenty percent of the limestone was installed on the Houstons' home before the change in seasons interrupted the project. When the work was to begin again in 2004, the stones that had been installed "began delaminating, spalling, exhibiting dark veins of clay-like material and falling off the home." The plaintiff claims the defects in the stone were caused by the "freeze-thaw" effect over the winter. Consequently, the stone had to be removed and replaced. The plaintiff notified the defendant of defects with the stone, but the defendant has failed to take back the stone or otherwise refund the purchase price.
The plaintiff alleges in its complaint that it incurred expenses to remove, replace and reinstall stone on the Houstons' residence. It seeks direct and consequential damages caused by the stone being replaced. Additionally, the plaintiff alleges that it is entitled to seek "delay damages" sustained by the Houstons.
The second count alleges an action for breach of warranty of fitness for a particular use and the fourth count alleges an action for breach of warranty of merchantability. The factual allegations of the second count are restated in the fourth count. The plaintiff claims in both counts that "[r]emoving and replacing the defective stone has caused considerable delays and costs for which [the defendant] is liable. These costs have been incurred by the Houstons and were assigned to [the plaintiff] on February 1, 2006. As a result, [the plaintiff] is the bona fide owner of this claim and entitled to pursue the claim in its own name." The Houstons are not parties to the action. As alleged in the complaint, the Houstons assigned to the plaintiff their claim for the costs sustained by them as a result of the delay to the project.
A copy of a settlement agreement between the plaintiff and the Houstons is attached to the complaint.
In its memorandum in support of its motion to strike, the defendant contends that "[p]rivity of contract is an essential element of claims for breach of the implied warranty of merchantability under [General Statutes] § 42a-2-314 or breach of the implied warranty of fitness for a particular purpose under . . . § 42a-2-315." The defendant cites the case of Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294 (1961), as controlling as to its claim that, under the circumstances here, the second and fourth counts should be stricken. The plaintiff counters that the defendant's reliance of Hamon is misplaced, and that privity is not required in this case.
In Hamon, the plaintiff alleged that she sustained personal injuries when the contents of a household detergent spilled onto her. Hamon v. Digliani, supra, 148 Conn. 711. The plaintiff brought an action against the "retail shopkeeper" from whom she bought the product, and against two manufacturers. Id. In the second count of her complaint, the plaintiff alleged that the defendants breached their express and implied warranties. Id. The defendants moved to strike the second count claiming that there was no privity of contract between the plaintiff and them. Id. The court granted the motion to strike the second count and rendered judgment thereon. Id., 712.
On appeal, the court concluded that lack of privity did not prevent the plaintiff from maintaining an action for breach of warranties against the defendants. Id., 718. "The manufacturer or producer who puts a commodity for personal use or consumption on the market in a sealed package or other closed container should be held to have impliedly warranted to the ultimate consumer that the product is reasonably fit for the purpose intended and that it does not contain any harmful and deleterious ingredient of which due and ample warning has not been given . . . Where the manufacturer or producer makes representations in his advertisements or by the labels on his products as an inducement to the ultimate purchaser, the manufacturer or producer should be held to strict accountability to any person who buys the product in reliance on the representations and later suffers injury because the product fails to conform to them . . . Lack of privity is not a bar to suit under these circumstances." (Citations omitted.) Id.
A case decided a few years later, Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189 (1965), is more instructive on the issue. In Garthwait, the court recited the following facts: "This suit arose because of a hair tinting treatment the plaintiff received at a beauty parlor operated by the named defendant. The third count of the complaint alleges that the defendant Clairol, Inc., hereinafter referred to as Clairol, manufactures a hair dye known as `Miss Clairol Hair Color Bath.' By means of extensive advertisements through the medium of radio, television, newspapers and magazines, Clairol implied `and/or' expressly warranted to the plaintiff as a user of the product that the product was safe and fit for its intended use. It is further alleged that in reliance upon these representations the beauty parlor purchased the product from Clairol and the plaintiff accepted the beauty parlor's use of the product on her hair, as a result of which she sustained injuries. It is expressly alleged that Clairol failed to fulfill its express warranties and its implied warranties of merchantability and fitness for the purpose for which the product was intended and that the breach of these warranties by Clairol in regard to the plaintiff as a user of the product was a proximate cause of the injuries sustained by the plaintiff." Garthwait v. Burgio, supra, 153 Conn. 285-86.
Clairol moved to strike the third count claiming it did not state a cause of action in breach of warranty since it failed to allege that the product was sold to the plaintiff. Id., 286. The court granted the motion and rendered judgment for Clairol on the count. Id.
The Supreme Court identified the issue on appeal as "whether privity of contract is an essential allegation in an action by a consumer or user against a manufacturer for alleged breach of the warranties of the fitness and safety of its product. Here there was no sale of the product to the plaintiff and hence no privity of contract between the plaintiff and Clairol. On the facts admitted by the [motion to strike], the plaintiff was in the category of a user rather than a purchaser, and on this appeal we must assume that she accepted the use of Clairol's product in reliance upon representations and warranties of safety and fitness made to her by Clairol's advertisements, which warranties Clairol failed to fulfill, thereby proximately causing her injuries." Id.
The Court more fully discussed the Hamon case as follows: "In the Hamon case the plaintiff was a purchaser as well as a user of the product. Where the liability is fundamentally founded on tort rather than contract there appears no sound reason why the manufacturer should escape liability simply because the injured user, a party in the normal chain of distribution, was not in contractual privity with it by purchase and sale.
"We find ourselves in accord with the rule recently adopted in 402 A of volume 2 of the Restatement (Second) of Torts: `Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.' Comment 1 to this section of the Restatement points out that `[t]he liability stated is one in tort, and does not require any contractual relation, or privity of contract, between the plaintiff and the defendant' Id., 289-90.
In view of the foregoing, the Court concluded that the third count did not fail to set forth a cause of action because the plaintiff failed to allege "facts constituting a sale of goods to the plaintiff." Id., 290. It reversed the judgment of the trial court and remand the case for further proceedings. Id.
Significantly, the Supreme Court in Garthwait indicates that there is a distinction between warranty claim based on contract and tort. Privity is required in the latter, but not the former. "There are two bases of recovery on an implied warranty theory under Connecticut law . . . One basis is in tort, while the other is contractual and involves either an implied warranty of merchantability or an implied warranty of fitness for a particular purpose, as embodied in [General Statutes] §§ 42a-2-314, 42a-2-315 . . . Connecticut courts since Hamon . . . have recognized a tortious breach of warranty claim which does not require a privity relationship." (Citation omitted.) Quadrini v. Sikorsky Aircraft Division, 505 F.Sup. 1049, 1050 (D.Conn. 1981).
This distinction has been followed by the trial courts of this state. "Connecticut law has maintained a privity requirement that prevents parties who are not in contractual privity with the warrantor from enforcing any implied warranty." Kahn v. Volkswagen of America Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5004090 (February 13, 2008, Tobin, J.) ( 45 Conn. L. Rptr. 31, 36); see also Pro Con, Inc. v. Coastal Wall Systems, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085523 (September 13, 2004, Shluger, J.) ( 37 Conn. L. Rptr. 875) (contractual privity required to state a claim for breach of implied or express warranty); Technologies Corp., Pratt Whitney Division v. Saren Engineering, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 02 0173135 (September 25, 2002, McWeeney, J.) ( 33 Conn. L. Rptr. 127, 128) ("privity is essential to a warranty claim asserted pursuant to §§ 42a-2-314 and 42a-2-315").
The plaintiff's warranty claims in the second and fourth counts are based on contract. Connecticut law provides that a contractual breach of warranty claim requires privity. The plaintiff has failed to allege in the counts at issue a privity relationship between itself and the defendant. In view of the foregoing, the defendant's motion to strike (149.00) the second and fourth counts of the plaintiff's revised third amended complaint is granted.