Opinion
Nos. CV 09 5031427S, CV 09 6004639S
August 5, 2011
MEMORANDUM OF DECISION IN RE MOTIONS TO STRIKE (#113, #117, #118, #120, #145, #148)
I BACKGROUND
This memorandum addresses motions to strike filed in Pereira v. North Carolina Granite Corp., Docket No. CV 09 5031427, Superior Court, judicial district of New Haven and its companion case, C.J. Fucci, Inc. v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV 09 6004639. Both cases concern the same incident, in which Silvestre Pereira, his wife, Rose Pereira and C.J. Fucci, Inc., Silvestre Pereira's employer, allege Silvestre Pereira was injured while unloading granite curbs off of a flat-bed trailer. This memorandum first address the motions to strike in Pereira and then the motions to strike in C.J. Fucci, Inc.
On November 23, 2009, the court, Silbert, J. granted North Carolina Granite's motion to consolidate the cases.
II STANDARD OF REVIEW
Since both cases involve motions to strike, the court first notes the appropriate standard of review for a motion to strike before addressing the facts and counts at issue in each case. "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Id., 588. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
III DISCUSSION Pereira v. North Carolina Granite Co.
On August 25, 2009, Silvestre Pereira and Rose Pereira filed a complaint against North Carolina Granite Co. (North Carolina Granite) and BFR Associates, Inc. (BFR) alleging violations of the Connecticut Product Liability Act (product liability act), General Statutes § 52-572m et seq., negligence and loss of consortium. On April 14, 2010, Silvestre Pereira and Rose Pereira filed an amended complaint adding Tennessee Steel Haulers, Inc. (Tennessee Steel) as a defendant. The operative complaint is the revised complaint that Silvestre Pereira and Rose Pereira filed on April 11, 2011. Previous versions of the complaint sought: compensatory damages; punitive or exemplary damages pursuant to General Statutes § 52-240b; costs and reasonable attorneys fees; and such other relief as the court deems necessary or proper.
It appears that Silvestre Pereira and Rosa Pereira forgot to attach the prayer for relief to their revised complaint.
Counts one, five and nine allege violations of the product liability act against North Carolina Granite, BFR and Tennessee Steel, respectively, as well as the following facts. The defendants were product manufacturers and product sellers as defined by General Statutes §§ 52-572m(a) and 52-572m(d), respectively. They were engaged in the business of selling products, including granite curbs. Additionally, the defendants were engaged in the manufacture, construction, design, formulation, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging and labeling of products, including granite curbs. Furthermore, the defendants advertised, marketed, solicited for sale and sold granite curbs and other products to customers in Connecticut.
On August 4, 2007, the defendants loaded granite curbs onto a flat-bed trailer upon perpendicular wooden "dunnage" boards and delivered them to C.J. Fucci, pursuant to a purchase agreement. The shipment consisted of seventy or seventy-two individual granite curbs. Each curb was approximately 5 inches wide, 6 feet long, 12 to 20 inches tall and weighed over 600 pounds. On August 6, 2007, while on a flat-bed trailer assisting a fellow employee who was operating a combination loader to unload the granite curbs, Silvestre Pereira "was caused to trip by a brownish wooden dunnage board and fell off the trailer onto the surface below," sustaining numerous injuries, including an injury to his spinal cord resulting in loss of his upper and lower body functions.
The defendants proximately caused his injuries by violating the product liability act in that they, among other things, constructed, designed, prepared, assembled, or fabricated "the granite curbs and their packaging as separate pieces individually laid on top of dunnage boards instead of packaging them together in units of [two] or more curbs with dunnage boards strapped or otherwise adhered thereto, despite [their] opportunity and obligation to do so." Furthermore, the defendants proximately caused Silvestre Pereira's injuries by, among other things, negligently loading the granite curbs as separate pieces individually laid on top of wooden dunnage boards creating an unreasonably dangerous and defective tripping hazard, for which insufficient warning was given. In addition, the defendants breached the implied warranty of merchantability with respect to the granite curbs.
Counts three, seven and eleven allege common-law negligence against North Carolina Granite, BFR, and Tennessee Steel, respectively. Similar to the product liability counts, counts three, seven and eleven allege that while on a flat-bed trailer assisting a fellow employee who was operating a combination loader to unload the granite curbs, Silvestre Pereira "was caused to trip by a brownish wooden dunnage board and fell off the trailer onto the surface below," sustaining numerous injuries including an injury to his spinal cord resulting in loss of his upper and lower body functions. The negligence counts further allege that the defendants proximately caused Silvestre Pereira's injuries by negligently loading and delivering the granite curbs as separate pieces individually laid on top of wooden dunnage boards, thereby creating an unreasonably dangerous condition.
In counts two, six and ten, Rose Pereira alleges loss of consortium against North Carolina Granite, BFR and Tennessee Steel, respectively. These counts are derivative of Silvestre Pereira's product liability act counts. In counts four, eight and twelve, Rose Pereira alleges loss of consortium against North Carolina Granite, BFR and Tennessee Steel, respectively. These counts are derivative of Silvestre Pereira's negligence counts.
Each defendant filed substantially similar motions to strike the counts against them. First, the defendants move to strike the product liability act counts on the ground that they fail to state a cause of action under the act. In the alternative, if the court denies their motions to strike the product liability act counts, the defendants move to strike the negligence counts pursuant to General Statutes § 52-572n(a), the exclusivity provision of the product liability act. In addition, the defendants move to strike the loss of consortium counts that are derivative of the product liability act counts or negligence counts that the court chooses to strike. Furthermore, the defendants move to strike the portions of the prayer for relief seeking attorneys fees and punitive damages on the ground that they are legally insufficient.
On November 2, 2009, North Carolina Granite filed its motion to strike. On November 18, 2009, BFR filed its motion to strike. On April 12, 2011, after Silvestre Pereira and Rose Pereira filed their amended and revised complaints, Tennessee Steel filed its motion to strike. North Carolina Granite and BFR did not re-file their motions to strike in response to the subsequent complaints. Pursuant to Practice Book § 10-61, North Carolina Granite and BFR's motions to strike "shall be regarded as applicable so far as possible to the amended pleading." The revised complaint, which is the operative complaint, does not materially change any of the allegations to which North Carolina Granite and BFR directed their motions to strike.
Unlike North Carolina Granite and BFR, Tennessee Steel, in its memorandum of law in support of its motion to strike, argues that the court should address the exclusivity provision argument before it addresses the legal sufficiency of the product liability counts. For simplicity, this memorandum addresses the legal sufficiency of the product liability counts first.
All three defendants filed memoranda of law in support of their motions. Silvestre Pereira and Rose Pereira filed memoranda of law in opposition to each defendant's motion. All three defendants filed replies to Silvestre Pereira and Rose Pereira's memoranda of law in opposition. The court heard oral argument on all three motions to strike at short calendar on May 2, 2011.
Product Liability Act Counts (One, Five and Nine) and Derivative Loss of Consortium Counts (Two, Six and Ten)
The defendants argue that the product liability counts fail to state a cause of action under the product liability act. Specifically, they argue that Silvestre Pereira has failed to allege that his injuries were caused by a product placed in the stream of commerce. The defendants argue that Silvestre Pereira alleges he was injured not by the products themselves, the granite curbs, but rather when he tripped over wooden dunnage boards used to transport the granite curbs. Therefore, they argue, Silvestre Pereira alleges that the manner in which the granite curbs were loaded onto the flat-bed truck caused his injuries. Accordingly, the defendants argue, that the allegations of the products liability counts are properly pleaded in the negligence counts. Alternatively, the defendants argue that if the court does not strike the product liability counts, then it should strike the negligence counts pursuant to the product liability act's exclusivity provision under, § 52-572n(a).
General Statutes § 52-572n(a) 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 plaintiff, Silvestre Pereira acknowledges that the product defects do not exist within the granite curbs themselves. Rather, he argues that he has alleged various defects in the granite curbs' packaging and labeling. Additionally, he argues that the defendants' argument that the wooden dunnage boards were not part of the packaging but rather used to assist in the transportation of the granite curbs, is an inference that cannot be drawn from the limited allegations of the complaint. He argues that such an inference cannot be drawn in the context of a motion to strike, in which a court must construe the facts in favor of the nonmoving party. Silvestre Pereira further argues that the court should reserve its decision until the pleadings are closed and discovery is completed when the court has a comprehensive factual record before it. The defendants argue that the court is limited to the factual allegations of the plaintiff's complaint in ruling on a motion to strike, and therefore the court should not wait for a developed factual record.
Silvestre Pereira acknowledges that the allegations in the product liability counts and the common-law negligence counts address the same defective condition. Moreover, he concedes under Connecticut law he is not entitled to a remedy under both theories of liability. Nevertheless, he argues, at this early phase of the litigation, he does not have sufficient information to conclusively determine whether the defective condition falls within the scope of the product liability act. Furthermore, he argues that such knowledge is required for him to adequately plead either cause of action within Connecticut's liberal pleading rules. Additionally, he argues that if the court eventually determines, as a matter of law on a developed factual record, that his claims are within the scope of the product liability act, he will withdraw his common-law negligence counts. Until that time, he argues, the court should allow him to pursue alternative theories of liability in order to avoid having either possible remedy barred by the relevant statute of limitations.
The court will not wait for a developed factual record to determine the issues the defendants raise in their motions to strike. The very purpose of a motion to strike is to test the legal sufficiency of the allegations in a complaint as pleaded. "It is well established that a motion to strike must be considered within the confines of the pleading and not external documents . . . [The court] is limited . . . to a consideration of the facts alleged in the complaint." Zirinsky v. Zirinsky, 87 Conn.App. 257, 271-72, 277 n. 9, 865 A.2d, cert denied, 273 Conn. 916, 871 A.2d 372 (2005). Thus, the court will consider the allegations of the complaint in ruling on these motions to strike.
The defendants counter that although packaging claims are permissible under the product liability act, the alleged shipping scenario that led to Silvestre Pereira's trip and fall does not state a legally sufficient product liability act claim because the wooden dunnage boards the defendants used to transport the granite were neither sold by the defendants, nor integrated and inseparable from the granite product itself. Furthermore, the defendants argue that because Connecticut is a fact-pleading state and because Silvestre Pereira thoroughly alleged the specific facts upon which he bases the alleged violation of the product liability act, namely, the manner in which the curbing was loaded, the court should strike the product liability counts. They argue that even when construed in a light most favorable to Silvestre Pereira and Rose Pereira, the allegations do not support a cause of action under the product liability act.
"The Connecticut Product Liability Act, Conn. Gen. Stat. § 52-572m et seq., . . . became effective on October 1, 1979. Elliot v. Sears Roebuck and Co., 229 Conn. 500, 505 n. 6, [ 642 A.2d 709] (1994). `In adopting the act, the legislature intended to incorporate in a single cause of action an exclusive remedy for all claims falling within its scope . . . In doing so, the legislature was merely recasting an existing cause of action and was not creating a wholly new right for claimants harmed by a product.' (Citations omitted; internal quotation marks omitted.) Id., 504-05. `The intent of the legislature was to eliminate the complex pleading provided at common-law.' Id. `A claim may be asserted successfully under [the product liability act] not withstanding the claimant did not buy the product from or enter into any contractual relationship with the product seller.' [General Statutes] § 52-572n(b). "`Product seller" means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term "product seller" also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.' [General Statutes] § 52-572m(a). A `product liability claim' is defined as `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.' [General Statutes] § 52-572m(b). A `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.' . . . § 52-572m(b)." Zarikos v. Signature Building Systems, Inc., Superior Court, complex litigation docket at Stamford-Norwalk, Docket No. X08 CV 04 4000284 (March 24, 2009, Jennings, J.).
The product liability act does not define the term "packaging" in § 52-572m(b). Our Supreme Court has applied the principles underlying § 402A of the Restatement (Second) of Torts to the product liability act. See Vitanza v. Upjohn Co., 257 Conn. 365, 373, 778 A.2d 829 (2001) ("Manufacturers in Connecticut are strictly liable for defective products under § 402A of the Restatement (Second) of Torts"). Comment (h) to § 402A of the Restatement (Second) of Torts explains that a defective condition can arise from the product's packaging. Comment (h) provides in relevant part: "The defective condition may arise not only from harmful ingredients, not characteristic of the product itself either as to presence or quantity, but also . . . from the way in which the product is prepared or packed. No reason is apparent for distinguishing between the product itself and the container in which it is supplied; and the two are purchased by the user or consumer as an integrated whole. Where the container is itself dangerous, the product is sold in a defective condition. Thus a carbonated beverage in a bottle which is so weak, or cracked, or jagged at the edges, or bottled under such excessive pressure that it may explode or otherwise cause harm to the person who handles it, is in a defective and dangerous condition. The container cannot logically be separated from the contents when the two are sold as a unit, and the liability stated in this Section arises not only when the consumer drinks the beverage and is poisoned by it, but also when he is injured by the bottle while he is handling it preparatory to consumption." Thus, according to § 402A, "packaging" refers to the product itself and its container as an integrated whole where the container cannot be logically separated from the contents when the two are sold as a unit.
In Perez v. Fidelity Container Corp., 289 Ill.App.3d 924, 930, 682 N.E.2d 1150, cert. denied, 175 Ill.2d 553, 689 N.E.2d 1146 (1997), the Appellate Court of Illinois addressed the issue of whether "a stack is a product that suffers from defective `unitization'" within the meaning of § 402A. In Perez, "Florito and Gloria Perez filed a two-count complaint against Fidelity based on strict product liability and common-law negligence. The complaint alleged that Fidelity was liable for Florito's injuries as a result of a defective bale of cartons that it had delivered to [Florito's employer]." Id., 926. Among other things, the complaint alleged that the bundle of cartons was unreasonably dangerous and defective in that Fidelity "[i]mproperly stacked the cartons in the said bundle to prevent the slippage and falling of said bundle" and "improperly banded by the use of plastic straps, the stack of cartons in the said bundle to the skid knowing that the said cartons would shift, slip and fall when the banding would be cut or removed." Id., 928. "At trial it was the plaintiffs' theory that the unbound stacks of collapsed cartons constituted a `product' and that the stacks were unreasonably dangerous because they weighed some 1,300 pounds and were inherently unstable." Id., 929. After the plaintiffs presented their case, the trial court granted Fidelity's motion for directed verdict finding, among other things, that the product was not defective in design or manufacturing. Id., 927. On appeal, the court found that "a stack is not a `product' within the meaning of section 402A and the trial court properly directed a verdict for the defendant on the strict product liability count of the plaintiffs' complaint." Id., 930. The court concluded that "the unbound stacks of collapsed cartons did not constitute a `product' within the meaning of section 402A." Id., 933. Furthermore, the court explained that "the evidence is clear that Fidelity banded its cartons together in 250-unit bales for shipment and that the bands were not intended as an integral part of the cartons or their use." Id.
The facts of Perez are similar to the facts Silvestre Pereira alleges in his complaint in that both sets of facts concern methods of shipping and stacking rather than packaging. Silvestre Pereira alleges that the products, the granite curbs, were loaded onto wooden dunnage boards at the time of shipment. In his product liability act counts, he alleges that the defendants caused his injuries in that they, among other things, constructed, designed, prepared, assembled or fabricated "the granite curbs and their packaging as separate pieces individually laid on top of dunnage boards instead of packaging them together in units of [two] or more curbs with dunnage boards strapped or otherwise adhered thereto, despite [their] opportunity and obligation to do so." Even when viewed in the light most favorable to him, the allegations do not concern the packaging of the granite curbs, but rather, the method in which they were shipped and stacked. The manner in which the defendants stacked the granite curbs on the wooden dunnage boards over which he tripped does not constitute a `product' within the meaning of § 402A. Based on the factual allegations in the complaint, which the court must admit as true on a motion to strike, the granite curbs and wooden dunnage boards were not an integrated whole where the container cannot be logically separated from the contents when the two are sold as a unit. Therefore, counts one, five and nine fail to state a cause of action under the product liability act, and thus, the motions to strike these counts are granted. Additionally, the motions to strike counts two, six and ten, which are the derivative loss of consortium counts are also granted.
Negligence Counts (Three, Seven and Eleven) and Derivative Loss of Consortium Counts (Four, Eight and Twelve)
The defendants' argument that the court should strike the common-law negligence counts is based solely on the exclusivity provision of the product liability act. Because the court has stricken the product liability act counts, the exclusivity argument is moot. Accordingly, the motions to strike counts three, seven and eleven are denied, as well as the motions to strike counts four, eight and twelve, which are the derivative loss of consortium counts.
See footnote 5.
Attorneys Fees and Punitive Damages
The defendants argue that Silvestre Pereira and Rose Pereira have not pleaded sufficient facts to support their claim for either attorneys fees or punitive damages. Silvestre Pereira and Rose Pereira do not dispute the defendants' argument and therefore consent to the defendants' request to strike the claim for attorneys fees and punitive damages. The court therefore grants the motions to strike the claims for attorneys fees and punitive damages.
C.J. Fucci v. North Carolina Granite Corp.
On August 5, 2009, C.J. Fucci filed a complaint against North Carolina Granite and BFR alleging violations of the product liability act and common-law negligence. On March 26, 2010, C.J. Fucci filed an amended complaint adding Tennessee Steel as a defendant. The operative complaint is the revised complaint that C.J. Fucci filed on August 24, 2010. C.J. Fucci alleges that it purchased the granite curbs from the defendants and that its employee, Silvestre Pereira, was injured unloading them. As a result, C.J. Fucci alleges that it has paid Silvestre Pereira $770,248 in workers' compensation benefits. C.J. Fucci has filed its complaint pursuant to General Statutes § 31-293(a) to recover the workers' compensation benefits it has paid and will become obligated to pay. In addition to recovering workers' compensation payments, C.J. Fucci in its prayer for relief seeks: monetary damages; punitive or exemplary damages pursuant to General Statutes § 52-240b; costs and reasonable attorneys fees; and such other relief as the court deems necessary or proper.
Counts one, three and seven allege violations of the product liability act against North Carolina Granite, BFR and Tennessee Steel, respectively. The allegations in counts one, three and seven are substantially similar to the allegations in the product liability act counts in Pereira. Counts two, four and five allege common-law negligence against North Carolina Granite, BFR and Tennessee Steel, respectively. Again, the allegations in counts two, four and five are substantially similar to the allegations in the common-law negligence counts in Pereira.
Count six is labeled "As to [Tennessee Steel] — Vicarious Liability." The allegations in count six are substantially similar to those in the common-law negligence count against Tennessee Steel except count six alleges "Silvestre Pereira's . . . personal injuries and damages . . . were proximately caused by [Tennessee Steel's] vicarious negligence or carelessness acting through its servants, agents, apparent agents, employees, contractors, and/or drivers, including Dexter B. Dickson and any other individuals whose names shall be ascertained during discovery." Count eight is labeled "As to [Tennessee Steel] in Vicarious Liability — Products Liability Act, C.G.S. § 52-572m — § 52-572q." The allegations in count eight are substantially similar to those in the product liability act count against Tennessee Steel except that count eight alleges "Silvestre Pereira's . . . personal injuries and damages . . . were proximately caused by [Tennessee Steel's] vicarious negligence or carelessness acting through its servants, agents, apparent agents, employees, contractors, and/or drivers, including Dexter B. Dickson and any other individuals whose names shall be ascertained during discovery."
Each defendant filed substantially similar motions to strike the counts against them. First, the defendants move to strike the product liability act counts on the ground that they fail to state a cause of action under the act. In the alternative, if the court denies their motions to strike the product liability act counts, the defendants move to strike the negligence counts pursuant to § 52-572n(a), the exclusivity provision of the product liability act. Furthermore, the defendants move to strike the portions of the prayer for relief seeking attorneys fees and punitive damages on the ground that they are legally insufficient. In addition, Tennessee Steel moves to strike counts six and eight, which allege vicarious liability against it in negligence and in violation of the product liability act, respectively, because they are duplicative of counts five and seven, which allege negligence and a violation of the product liability act, respectively.
On October 30, 2009, North Carolina Granite filed its motion to strike the counts against it. On November 2, 2009, BFR filed its motion to strike the counts against it. On April 12, 2011, Tennessee Steel filed its motion to strike the counts against it. North Carolina Granite and BFR did not re-file their motions to strike in response to the subsequent complaints. Pursuant to Practice Book § 10-61, North Carolina Granite and BFR's motions to strike "shall be regarded as applicable so far as possible to the amended pleading." The revised complaint, which is the operative complaint, does not materially change any of the allegations to which North Carolina Granite and BFR directed their motions to strike.
See footnote 4.
All three defendants filed memoranda of law in support of their motions. C.J Fucci filed memoranda of law in opposition to each defendant's motion. All three defendants filed replies to C.J Fucci's memoranda of law in opposition. On May 2, 2011, the court heard oral argument on all three motions to strike.
Product Liability Act Counts (One, Three and Seven)
For the reasons discussed above regarding the product liability counts in Pereira, C.J. Fucci's product liability counts are legally insufficient and therefore do not state a cause of action under the product liability act. Thus, the court grants the defendants' motions to strike counts one, three and seven of C.J. Fucci's complaint.
Negligence Counts (Two, Four and Five)
The defendants' argument that the court should strike the common-law negligence counts is based solely on the exclusivity provision of the product liability act. Because the court has stricken the product liability act counts, the exclusivity provision argument is moot. Therefore, the court denies the motions to strike counts two, four and five.
See footnote 5.
Vicarious Liability Counts against Tennessee Steel (Six and Eight)
Tennessee Steel argues that the court should strike counts six and eight, which allege vicarious liability against it in negligence and violation of the product liability act, respectively, because they are duplicative of counts five and seven, which allege negligence and a violation of the product liability act, respectively. In counts six and eight, C.J. Fucci alleges "Silvestre Pereira's . . . personal injuries and damages . . . were proximately caused by [Tennessee Steel's] vicarious negligence or carelessness acting through its servants, agents, apparent agents, employees, contractors, and/or drivers, including Dexter B. Dickson and any other individuals whose names shall be ascertained during discovery." Other than that allegation, Tennessee Steel argues that counts six and eight are identical to counts five and seven and are therefore superfluous. Additionally, Tennessee Steel argues that counts six and eight are legally insufficient because C.J. Fucci has not alleged a relationship between parties that would give rise to vicarious liability.
C.J. Fucci counters that Tennessee Steel's argument that counts six and eight are duplicative and superfluous should have been raised in a request to revise. Additionally, C.J. Fucci counters that these counts are legally sufficient because they state a claim for vicarious liability of the agents, servants and employees of Tennessee Steel.
"Practice Book § 10-2 is particularly instructive to the issue of whether a plaintiff is required to allege clearly that a corporate defendant's employees, and not the corporate defendant itself, performed acts in question. `The retention in the Connecticut Practice Book of §§ 10-1 and 10-2 constitutes a continued requirement that a plaintiff may not simply name a cause of action or plead a legal conclusion but must set forth the facts material to such a cause of action. The requirement of fact pleading reflects an apparent choice in the economics of litigation. If a plaintiff is not required to plead the facts that support his or her claimed cause of action, the case may go all the way through a trial before the absence of such facts is known . . .
"`The requirements of fact pleading are stated in §§ 10-1 and 10-2 of the Practice Book. The former provision requires that "[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ."The latter provision explains that while `[a]cts and contracts may be stated according to their legal effect . . . in so doing the pleading should be such as fairly to apprise the adverse party of the state of the facts which it is intended to prove.' The requirement is thus not simply to identify a doctrine, cause of action or legal conclusion but to state the material facts, that is, the facts material to the cause of action asserted.
"`At Section 10-2, the Practice Book furnishes illustrations of the difference between pleading a doctrine or conclusion or liability and pleading fact. The first example provided in § 10-2 is as follows: `Thus an act or promise by a principal, [other than a corporation], if in fact proceeding from an agent known to the pleader, should be so stated.' In other words, a plaintiff may not plead that the principal contracted with the plaintiff and is liable for breach of contract but must plead that the person who entered into the contract was an agent of the principal. The Principal's liability for the acts of the agent is the legal effect of the agent's act in contracting . . .' Lavole v. Bayer Corporation, Superior Court, complex litigation docket at Waterbury, Docket No. X01 0168392 (Jan. 23, 2002, Hodgson, J.) ( 31 Conn. L. Rptr. 391, 393).
"As § 10-2 provides, there is an exception to this rule. `Corporations always act through agents. They are excepted from the rule requiring that the fact that a contract was made through an agent be stated.' Vincent v. S. Alexander's Sons Company, 85 Conn. 512, 516, 84 A. 84 (1912). Therefore, when `the defendant is a corporation . . . it is not even necessary to allege that the act charged to have been performed by the defendant was in fact performed by an agent acting for it, much less is it necessary to allege that this agent had authority to act. This is so by virtue of an express provision of our rule.' Central Company v. Industrial Bank of Harford, Inc., 9 Conn.Sup. 208, 208 (1941)." Fontaine v. Clement, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005261 (April 13, 2009, Brunetti, J.).
Under Practice Book § 10-2 it was unnecessary for C.J. Fucci to plead that Silvestre Pereira's personal injuries and damages were proximately caused by Tennessee Steel's vicarious negligence acting through its agents, servants and employees, because Tennessee Steel is a corporation. The fact that C.J. Fucci pleaded more than necessary in counts six and eight does not make those counts legally insufficient. If Tennessee Steel thought that counts six and eight were duplicative of counts five and seven and superfluous it should have filed a request to revise before filing its motion to strike. See Practice Book § 10-35 ("Whenever any party desires to obtain . . . (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading . . . the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading"). The court therefore denies Tennessee Steel's motion to strike counts six and eight.
Prayer for Relief
The defendants argue that C.J. Fucci has not pleaded sufficient facts to support its claim for either attorneys fees or punitive damages. C.J. Fucci does not dispute the defendants' argument and therefore consents to the defendants' request to strike the claim for attorneys fees and punitive damages. The court therefore grants the defendant's motions to strike the claims for attorneys fees and punitive damages.
CONCLUSION
Regarding Pereira v. North Carolina Granite Corp., the court grants the motions to strike counts one, two, five, six, nine and ten and the portions of the prayer for relief seeking attorneys fees and punitive damages, but denies the motions to strike counts three, four, seven, eight, eleven and twelve. Regarding C.J. Fucci, Inc. v. North Carolina Granite Corp., the court grants the motions to strike counts one, three and seven and the portions of the prayer for relief seeking attorneys fees and punitive damages, but denies the motions to strike counts two, four, five, six and eight.