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concluding that where the plaintiffs sought to bring a CUTPA claim based on the failure of their roof, "[u]nlike the plaintiffs in Soto , the plaintiffs in the present action are seeking to recover damages caused by a defective product"
Summary of this case from Glover v. Bausch & Lomb Inc.Opinion
HHDCV186010659
12-06-2019
Phillips-Moldex Company et al. v. Beaulieu Company, LLC et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Taylor, Mark H., J.
MEMORANDUM OF DECISION RE MOTION TO STRIKE NO. 121
Mark H. Taylor, Judge
I
BACKGROUND
The defendant, Johns Manville, Inc. (JMC), moves to strike counts five through eight of the plaintiffs’ complaint, involving the failure of the plaintiffs’ roof, installed by the defendant, Beaulieu Company, LLC (Beaulieu), using JMC materials. Count five alleges a breach of contract against JMC, based upon a theory of agency with the defendant installer, Beaulieu. Count six alleges negligence against JMC, based upon the negligence of its alleged agent, Beaulieu. Count seven alleges breach of warranty on the same theory of agency. Count eight alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA) against JMC’s failure to timely share information, to stand by its roof system and agent, Beaulieu. And to avoid its warranty by actions that are alleged to have been unfair and deceptive.
There are several fundamental disputes between the parties. The initial two are whether the plaintiffs have (1) sufficiently alleged agency and (2) properly alleged negligence for what in JMC’s view, should be barred under the exclusivity provision of the Connecticut Products Liability Act (CPLA). The court will first examine the elements required for pleading agency and apparent agency, followed by the question of whether the plaintiffs’ negligence and breach of warranty claims against JMC fall under the exclusivity provision of the CPLA. Finally, the court will address whether the plaintiffs’ claim pursuant to CUTPA is barred by the exclusivity provision of the CPLA.
II
DISCUSSION
A
Count Five Alleging Breach of Contract Based on Agency
At the hearing on the motion to strike, held on November 18, 2019, the plaintiffs asserted they had sufficiently pleaded an agency relationship between Beaulieu and JMC, to which JMC correctly observes that only bare assertions of agency are set forth in count five of the complaint. The court concludes, however, that the plaintiffs have sufficiently pleaded a claim for agency in paragraphs 6 through 32 of the complaint, incorporated by reference into the, otherwise, conclusory assertions of agency set forth in count five.
Actual agency "is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ... Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." (Citations omitted; internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132-33, 464 A.2d 6 (1983).
"Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent." (Internal quotation marks omitted.) Id., 133. "In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal ... Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Citation omitted; internal quotation marks omitted.) Id., 133-34.
In addition, "[a]pparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses ... Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal." (Internal quotation marks omitted.) Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 59 n.8, 68 A.3d 1162 (2013). "Apparent authority has two elements. First, it must appear from the acts of the principal that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority ... Second, the party seeking to bind the principal must have acted in good faith reliance on that appearance of authority." (Internal quotation marks omitted.) 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, 70 Conn.App. 692, 703-04, 802 A.2d 117 (2002). "The doctrine has been discussed by Connecticut courts as available to hold parties liable in contract settings only when both elements have been present." Hoffman v. Margolis, Superior Court, judicial district of Stamford-Norwalk, Docket No. X08-CV-13-6020406-S (January 5, 2015, Genuario, J.) (59 Conn.L.Rptr. 828, 828 n.1).
Actual agency and apparent agency do not necessarily need to be pleaded in separate counts for purposes of a motion to strike. Actual agency and apparent agency, however, are two analytically separate concepts. See HSBC Bank USA v. Maurer, Superior Court, judicial district of New Haven, Docket No. CV-13-6043583-S (May 26, 2016, Corradino, J.T.R.). "Therefore, in order to survive a motion to strike, the plaintiff must allege facts establishing an agency relationship or a relationship of apparent agency or authority ..." Homeowners Finance Co. v. Rubin, Superior Court, judicial district of Hartford, Docket No. CV-14-6048025-S (October 19, 2016, Peck, J.T.R.) (63 Conn.L.Rptr. 43, 43). "[U]nder Connecticut common law, merely labeling an individual as an ‘agent’ in the complaint is insufficient to establish an agency relationship for purposes of vicarious liability. Rather, the plaintiffs must allege facts from which the elements of an agency relationship can be inferred." Id. In other words, "[a] complaint must allege more than a conclusory allegation of agency; it must allege facts supporting that legal conclusion of agency." (Internal quotation marks omitted.) A Better Way Wholesale Autos, Inc. v. Better Business Bureau of Connecticut, Superior Court, judicial district of Waterbury, Docket No. CV-14-6025379-S (February 15, 2017, Roraback, J.) (63 Conn.L.Rptr. 851, 853).
The court concludes that the plaintiffs have sufficiently pleaded agency in their complaint. It has done so by not only tying Beaulieu, its supplier, and JMC together through their interconnected websites, representations and contract language showing a collaborative enterprise, but also by the inspections performed by JMC during the performance of the roof installation. See Complaint, ¶¶6-22. The plaintiffs, therefore, have sufficiently pleaded a breach of contract claim against JMC based on its agency relationship with Beaulieu.
B
CPLA Exclusivity
The court now turns to the question of whether the plaintiffs’ action is subject to the exclusivity provision of the CPLA. General Statutes § 52-572n(a) provides, in relevant part, that "[a] products liability claim as provided in sections ... 52-572m to 52-572q, inclusive ... may be asserted and shall be in lieu of all other claims against product sellers, including acts of negligence, strict liability and warranty, for harm caused by a product." Pursuant to § 52-572n(a)’s language, the CPLA is thus "the exclusive means by which a party may secure a remedy for an injury caused by a defective product." Hurley v. Heart Physicians, P.C., 278 Conn. 305, 324, 898 A.2d 777 (2006). The CPLA, therefore, is the "exclusive remedy for claims falling within its scope." Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989).
To prove a products liability claim under CPLA, a plaintiff must allege: "(1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition." Bifolck v. Philip Morris, Inc., 324 Conn. 402, 434, 152 A.3d 1183 (2016).
For purposes of a CPLA claim under § 52-572n, a "product seller" is defined, in relevant part, as "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." General Statutes § 52-572m(a). A "product liability claim" encompasses "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. ‘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." (Emphasis added.) General Statutes § 52-572m(b). Although the CPLA does not expressly define what constitutes a "product," courts have defined a "product" as "any object possessing intrinsic value, capable of delivery either as an assembled whole or as a component part or parts, and produced for introduction into trade or commerce." (Internal quotation marks omitted.) ACMAT Corp. v. Jansen & Rogan Consulting Engineers, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-96-0474249-S (August 23, 1999, Robinson, J.) (25 Conn.L.Rptr. 463, 466). "Products" are also defined as "any item, thing, or commodity which, upon acquiring its physical existence and identity, through the process of manufacture or otherwise, is put in the stream of commerce either by sale, for use, consumption or resale or by lease or bailment." (Internal quotation marks omitted.) Id.
In reading the definitions of product seller and product liability claim together, it appears that a product seller is not only responsible for the claims arising from a defective product, but also for damages resulting from its installation of the product. When the seller and installer are the same entity, therefore, the CPLA logically encompasses both claims. In the present case, the seller and installer are separate entities and, therefore, the question arises as to whether the reach of the CPLA is intended to extend to damages arising from an installation performed by a separate installer, such as Beaulieu. The court concludes that the CPLA precludes the negligence and breach of warranty claims; however, the court only reaches this conclusion to the extent that JMC is joined with Beaulieu as its agent, as alleged, in this business enterprise.
In the present action, therefore, the CPLA’s exclusivity provision bars the plaintiffs’ claims against JMC for negligence and breach of warranty. The plaintiffs are seeking to hold JMC vicariously liable for the property damage it sustained when Beaulieu installed the roof system at issue. The CPLA, however, expressly covers both negligence and warranty claims that arise from the installation of a product when such claims are asserted against a product seller, joined here through its agent. See General Statutes § § 52-572m(b) and 52-572n(a). See also Dode v. Promptcare New England Respiratory, LLC, Superior Court, judicial district of Hartford, Docket No. CV-13-6039310-S (July 29, 2015, Huddleston, J.) (noting that if defendant’s act of unpacking and setting up equipment delivered to plaintiff’s decedent "had been contemporaneous with the delivery of the equipment, these claims plainly concern the products’ assembly, installation, testing, warnings, [and] instructions and thus would be encompassed within the CPLA" [internal quotation marks omitted] ); Shaw v. Jason Soda Systems, Superior Court, judicial district of New Haven, Docket No. CV-97-0402436-S (September 18, 1998, Zoarski, J.) (granting defendant’s motion to strike plaintiff’s negligence claim on ground that installation and assembly of ice machine door fell within scope of CPLA’s exclusivity provision).
Here, JMC qualifies as a "product seller" because it is the manufacturer of the materials used in the installation of the roof system. General Statutes § 52-572m(a). The roofing materials are also "products" for purposes of the CPLA because they were objects capable of delivery as a component part or parts that were produced for introduction into trade or commerce. See ACMAT Corp. v. Jansen & Rogan Consulting Engineers, supra, 25 Conn.L.Rptr. 466. Because the plaintiffs bring claims against JMC for property damage caused by the allegedly negligent installation of the roof system by JMC’s agent, Beaulieu, the plaintiffs’ claims qualify as "product liability claims" within the CPLA’s purview. General Statutes § 52-572m(b). The plaintiffs, therefore, were required to bring a CPLA claim against JMC rather than common-law claims for negligence and breach of warranty.
"Manufacturer" is defined, in relevant part, as "product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer." General Statutes § 52-572m(e). As the entity that designed and constructed the materials for the roof system, JMC undoubtedly qualifies as a "manufacturer" under the CPLA.
The plaintiffs attempt to avoid the applicability of the CPLA’s exclusivity provision by arguing that a line of case law has held that the CPLA does not bar common-law claims arising from defectively performed construction work in certain circumstances. The line of cases that the plaintiffs cite, however, is distinguishable. In the cases that the plaintiffs cite, the court found that the CPLA’s exclusivity provision was inapplicable either because the defendant did not qualify as a "product seller" or because the conduct in question concerned the provision of a service rather than the sale of a product. See, e.g., Truglio v. Hayes Construction Co., 66 Conn.App. 681, 685, 785 A.2d 1153 (2001) (holding trial court properly granted defendant’s motion for summary judgment on plaintiff’s product liability claim when constructing sidewalk through pouring method was a service rather than product); Paul v. McPhee Electrical Contractors, 46 Conn.App. 18, 23, 698 A.2d 354 (1997) (affirming trial court’s refusal to permit defendant to implead third party for indemnification when defendant installed light fixture at issue and was thus not a "product seller" as defined in § 52-572m(a)); Lake Road Trust, Ltd v. ABB, Inc., Superior Court, judicial district of Hartford, Docket No. X04-CV-10-6016502-S (July 5, 2012, Bright, J.) (54 Conn.L.Rptr. 323, 325-26) (finding CPLA did not apply when defendant, which plaintiffs hired to construct power plant, sold plaintiffs a service, not a product); South United Methodist Church v. Joseph Gnazzo Co., Superior Court, judicial district of Tolland, Docket No. CV-09-5005030-S (December 23, 2011, Sferrazza, J.) (53 Conn.L.Rptr. 182, 183) (granting defendant’s motion for summary judgment on ground that defendant did not qualify as a "product seller" under the CPLA).
The court has concluded that JMC is a product seller as defined in § 52-572m(a), and it did not sell the plaintiffs a service. Instead, JMC manufactured the roofing materials that its alleged agent, Beaulieu, eventually purchased from a third party. These facts are similar to those in Zarikos v. Signature Building Systems, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. X08-CV-04-4000284-S (March 24, 2009, Jennings, J.), where the court ultimately held that the plaintiffs’ negligence claim against the defendant fell within the CPLA’s exclusivity provision. In Zarikos, the plaintiffs brought an action against the defendant, the manufacturer of their prefabricated modular home. Id. The plaintiffs asserted claims against the defendant under the CPLA and under various common-law causes of action, including one for negligence. Id. The plaintiffs’ negligence claim was premised on the contention that the defendant was vicariously liable for the contractor’s negligence in assembling the modular home because the contractor was the alleged agent of the defendant. Id. The Zarikos court, however, held that the property damage caused by the contractor’s allegedly negligent installation of the home qualified as a "product liability claim" under the CPLA. Id. Accordingly, the court granted the defendant’s motion to strike the plaintiffs’ negligence claim.
Just like the plaintiffs in Zarikos, the plaintiff here cannot avoid the CPLA’s exclusivity provision. JMC clearly qualifies as a "product seller" by virtue of being the manufacturer of the roofing materials, and the plaintiffs’ claims against JMC arise from property damage incurred due to the allegedly negligent installation of the roof system by its agent. The CPLA, therefore, bars the plaintiffs’ negligence and breach of warranty claims against JMC. See General Statutes § 52-572n(a).
C
CPLA Bars CUTPA Claim
The CPLA’s exclusivity provision does not bar CUTPA claims for injuries "not caused by the defective product, or if the party is not pursuing a claim for personal injury, death or property damage." (Internal quotation marks omitted.) Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 128, 818 A.2d 769 (2003). A CUTPA claim can thus be asserted in conjunction with a CPLA claim if the plaintiff is seeking "to redress merely a financial injury suffered ... of a kind that [is not] regarded as part of the traditional tort remedy for harm caused by a defective product." (Emphasis in original.) Id., 129-30.
The CPLA, however, will preclude a CUTPA claim that is "revealed to be nothing more than a product liability act claim dressed in the robes of CUTPA." Id., 129. In other words, the CPLA’s exclusivity provision bars CUTPA claims when a plaintiff’s CUTPA claim contains allegations that do not fall outside the scope of the CPLA. See Hurley v. Heart Physicians, P.C., supra, 278 Conn. 326 (finding plaintiffs’ CUTPA claim fell within CPLA’s scope when it was clear that plaintiffs were pursing claim for personal injuries through its CUTPA allegations); Togridis v. Soletech, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. X 08-CV-16-6029467-S (September 28, 2018, Lee, J.) (holding CPLA’s exclusivity provision barred plaintiff’s CUTPA claim when claim fell within CPLA’s ambit because it was, in substance, a CPLA claim dressed in the robes of CUTPA); Cavanaugh v. Subaru of America, Inc., Superior Court, judicial district of Middlesex, Docket No. CV- 16-6015243-S (May 4, 2017, Aurigemma, J.) (64 Conn.L.Rptr. 405, 406) (finding plaintiff’s CUTPA claim fell within CPLA’s scope when CUTPA claim was based on misrepresentations regarding repairs to plaintiffs’ vehicles); Jordan v. Maxim Mobility, LLC, Superior Court, judicial district of New Haven, Docket No. CV-07-5002325-S (January 24, 2008, Gilligan, J.) (finding CUTPA claim barred by CPLA when CUTPA allegations alleged that defendant withheld recall information which deprived her of ability to avail herself to certain remedies under warranty and such allegations fit squarely within the definition of "products liability claim" as defined in § 52-572m(b)).
In the present action, the plaintiffs’ CUTPA claim appears to be a CPLA claim "dressed in the robes of CUTPA." In support of their CUTPA claim, the plaintiffs allege that "JMC, through its failure to timely share information and stand by its Roof System and the work of its Partner Beaulieu, along with its extensive efforts to avoid and void its Warranty, has taken actions that are deceptive or unfair in that such unfair action offends public policy, are immoral, unethical, oppressive, or unscrupulous, and have caused substantial injury to P-M and Cowles." Complaint, Count Eight ¶2. The plaintiffs further allege that "[JMC’s] conduct, false representations and/or omissions described herein are deceptive acts or practices in its trade or business in violation of the Connecticut Unfair Trade Practices Act." Id., ¶3. These allegations involve claims that fit within the CPLA’s scope. The plaintiffs’ allegations that JMC failed "to timely share information" and made "false representations and/or omissions" fall within the CPLA’s definition of "product liability claim," which includes actions based on theories of "misrepresentation or nondisclosure, whether negligent or innocent." See General Statutes § 52-572m(b). Moreover, the plaintiffs’ allegations that JMC has engaged in efforts to avoid and void its warranty sound in breach of warranty, which the CPLA also covers. See id. The plaintiffs have also failed to allege any financial injury suffered that is of a kind that is not regarded as part of a traditional tort remedy for harms caused by a defective product. The plaintiffs’ CUTPA claim, therefore, is barred by the CPLA’s exclusivity provision.
The plaintiffs argue that they have sufficiently pleaded a separate CUTPA claim by contending that their CUTPA claim is actually a deceptive advertising claim. In support of this theory, the plaintiffs rely on the Supreme Court’s decision in Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 202 A.3d 262, cert. denied, S.Ct. (2019). The plaintiffs’ reliance on Soto, however, is misplaced. In Soto, the plaintiffs’ CUTPA claim alleged that the defendants marketed and promoted their assault rifles in "an unethical, oppressive, immoral, and unscrupulous manner that promoted illegal offensive use of the rifle." Id., 86. Specifically, the plaintiffs alleged that the defendants promoted the assault rifles’ use for offensive, assaultive purposes such as "waging war and killing human beings," extolled the militaristic qualities of the rifles, and advertised them as a weapon that allows a single individual to force his multiple opponents to "bow down." Id., 86-87. The defendants filed a motion to strike the plaintiffs’ complaint, arguing in part that the CPLA’s exclusivity provision precluded the plaintiffs’ CUTPA claim. Id., 85. The Supreme Court disagreed. In so holding, the Supreme Court noted that "although a product liability claim includes all claims or actions brought for personal injury, death or property damage caused by [among other things] the ... marketing ... of any product ... it is well established that the exclusivity provision of the Product Liability Act applies only to those claims seeking to recover damages caused by a defective product." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 107 n.33. The Soto plaintiffs did not allege that the assault rifles were defective in any manner. Consequently, the Supreme Court held that the CPLA’s exclusivity provision did not bar the plaintiffs’ CUTPA claim, as the defendants failed to offer any explanation why the allegation that they wrongfully marketed the assault rifles by promoting their use for illegal purposes amounted to a product defect claim. Id., 107.
Unlike the plaintiffs in Soto, the plaintiffs in the present action are seeking to recover damages caused by a defective product. The crux of the plaintiffs’ allegations are that the roof system was negligently installed, and that this defective installation caused them to sustain property damage. Moreover, as discussed above, the plaintiffs’ CUTPA allegations sound in misrepresentation and breach of warranty, both of which the CPLA covers. This is distinguishable from the Soto plaintiffs’ CUTPA allegations, which were purely based on wrongful advertising and did not involve a defective product. Soto ’s holding that a defendant may be liable for wrongful advertising in limited situations is thus inapplicable to the present action.
The court is also unpersuaded by the plaintiffs’ argument that their CUTPA allegations do not rely on a product defect because JMC wrongfully advertised that Beaulieu was a trusted business "partner." First, the CPLA expressly includes within its scope claims for property damage caused by the marketing of any product. See General Statutes § 52-572m(b). Second, other courts have granted motions to strike claims due to the CPLA’s exclusivity provision in similar situations where the plaintiff was alleging that the defendant engaged in advertising or marketing that involved misrepresentations or other unfair conduct. See Cavanaugh v. Subaru of America, Inc., supra, 64 Conn.L.Rptr. 406 (finding that claim sounding in breach of warranty that arose from manufacturer design and marketing of plaintiffs’ vehicles fell within CPLA’s scope); Iodice v. Ward Cedar Log Homes, Superior Court, judicial district of Waterbury, Docket No. CV-12-6013844-S (December 5, 2012, Roche, J.) (granting motion to strike breach of contract claim due to CPLA exclusivity when breach of contract claim was based on allegations that defendant breached promises and representations made through advertising, product instructions, and written and oral representations); Leach v. JM Associates, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-98-0061872-S (November 24, 1998, Flynn, J.) (23 Conn.L.Rptr. 442, 443) (granting motion to strike plaintiff’s CUTPA claim based on advertising, marketing, and selling of defective jogging jacket because CPLA’s clear and unambiguous language covers actions based on marketing, and advertising, the process by which a manufactured product is brought to public attention, is clearly marketing). The plaintiffs’ argument that their CUTPA allegations based on JMC’s deceptive advertising practices are not claims of product defect, therefore, is unavailing.
III
CONCLUSION
The motion to strike is denied as to count five, the plaintiffs’ breach of contract claim, because the plaintiffs have sufficiently pleaded agency. The motion is granted as to counts six, seven and eight, due to the exclusivity of the CPLA, precluding these separate claims.