Opinion
No. X06 CV-02-0173135-S
May 21, 2003
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE THE DEFENDANT CONNECTICUT BOILER REPAIR MANUFACTURING COMPANY INC.'S CROSS CLAIMS (##154 and 155)
The plaintiff United Technology Corporation, through its Pratt Whitney Division (UTC), maintains at its East Hartford facility a co-generation unit that generates electricity used by Pratt Whitney to satisfy a portion of its electrical needs at its East Hartford plant. An integral component of the co-generation unit is an ammonia storage tank system, which stores and then transfers ammonia for use in the co-generation process. The ammonia system is comprised of an ammonia storage tank and a piping system, whereby the ammonia is transferred from the storage tank to an ammonia skid.
The pipe that runs from the storage tank to the ammonia skid contains a hydrostatic relief valve, the function of which is to prevent the pressure in the pipe from reaching a critically high level, which could cause the pipe to burst. The particular hydrostatic relief valve that was installed in Pratt Whitney's ammonia system was a Rego brand hydrostatic relief valve, model number SS 8021G (the Rego valve), manufactured by the defendant, Engineering Controls International Inc. (ECII). That Rego valve was sold by the defendant Victor Manufacturing, division of F.W. Webb Company (Victor), to the defendant Connecticut Boiler Repair and Manufacturing Company, Inc. (Connecticut Boiler), and was installed in the ammonia system as the hydrostatic valve. The defendant Saren Engineering Inc. (Saren) designed the replacement ammonia system for the co-generation unit, and provided engineering services for the design and certain modifications to the ammonia system. The defendant Connecticut Boiler fabricated the ammonia system based on Saren's design and trim schedule, which included a list of the parts to be used in the design of the replacement ammonia system.
The Rego valve was designed to open when the pressure in the pipe in the ammonia system reached a certain level, so as to prevent build-up of pressure that could cause the pipe to burst. Pratt Whitney claims that the Rego valve installed in the ammonia system malfunctioned, resulting in an ammonia leak at the East Hartford facility, which caused the plaintiff substantial damages.
In this litigation, Pratt Whitney seeks recovery from ECII and Victor pursuant to the Connecticut Products Liability Act, Connecticut General Statutes § 52-572m et seq. Its claims against Saren are for breach of contract, negligence and indemnification. The claims against Connecticut Boiler are for breach of contract and breach of warranty. The defendant Connecticut Boiler has filed cross claims against the defendants ECII and Victor. ECII and Victor both move to strike the cross claim asserted against them.
A motion to strike tests the legal sufficiency of any pleading, or whether it states a claim upon which relief may be granted. Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Practice Book § 10-39(a) (5). "A motion to strike admits all facts well pleaded." (Citations omitted.) Parsons v. United Technology Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997). "In deciding upon a motion to strike . . . the trial court must take the facts to be those alleged in the complaint . . . and cannot be aided by the assumption of any facts not therein alleged . . ." (Citations omitted; internal quotation marks omitted.) Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "[A motion to strike] does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings . . ." (Citations omitted.) Mingachos v. CVS, Inc., 196 Conn. 91, 108, 491 (1985). "The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action the motion to strike must be denied . . ." (Citations omitted; internal quotation marks omitted) Faulkner v. United Technology Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
The motions to strike assert that the cross claims are legally insufficient because a cross claim is impermissible in a products liability action, where all parties to the cross claim are already parties to the underlying action, and the cross claimant Connecticut Boiler cannot seek common law indemnification because the underlying claim against it does not lie in negligence. Alternatively, the movants assert that the cross claim fails to state any basis for an indemnification claim. Connecticut Boiler has filed its objection to the motions.
The Connecticut Supreme Court in Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 535 A.2d 537 (1998), held that a cross claim is impermissible in a products liability action in which all parties to the cross claim are already parties to the underlying action. This is the scenario in the instant case.
In Kyrtatas, the products liability claim was commenced against the seller and distributor (Stop Shop) of an aerosol window cleaner, the designer of the formula and filler of the cans (Shields Packaging), and the manufacturer of the can (Crown Cork Seal Company, Inc.). Crown Cork and Stop Shop filed cross claims against each other and Shields Packaging seeking indemnity (active/passive negligence). Shields Packaging sought to dismiss the cross claims, arguing that indemnity is inapplicable in the context of a product liability action. The decision in Kyrtatas finds the common law doctrine of indemnification inconsistent with the provisions of the Connecticut Products Liability Act concerning comparative responsibility, award of damages and contribution under General Statute § 52-572 (o). The court found that §§ 52-572 (o), 52-572 (b), 52-572 (c) and 52-572 (d) could not be reconciled with the common law doctrine of indemnification. "Comparative responsibility is inconsistent with indemnification because [comparative responsibility] allows a jury to assign responsibility in specific proportion among several defendants on the basis of evidence presented, while [indemnification] arose in response to the common law prohibition against contribution." Kyrtatas v. Stop Shop, Inc., supra, 205 Conn. 700.
The Kyrtatas decision was limited by the subsequent Connecticut Supreme Court decision in Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989). The Malerba decision allowed a cross claim for indemnification and contribution based on active/passive negligence when the proposed indemnitors were defendants in the original action. The court views that Kyrtatas was not overruled by Malerba, which specifically noted that "our holding in Kyrtatas v. Stop Shop, Inc., 205 Conn. 694, 702 N.2, 535 A.2d 357 (1988), was specifically limited to its factual circumstances which are different from the procedural process in which we find this case." Malerba v. Cessna Aircraft Co., supra, 210 Conn. 198 n. 9.
The court concludes that this case is in the same procedural posture as Kyrtatas and, thus, Kyrtatas is controlling law. This is a conclusion of a majority of superior court decisions addressing this issue. United Service Auto Association v. Minwax, Inc., Superior Court, judicial district of New London at New London, Docket No. 525278 (June 7, 1984, Leuba, J.); Miller v. Northeast Utilities, Superior Court, judicial district of New London at New London, Docket No. 520484 (April 20, 1983, Hurley, J.); Buda v. Valley Diner Inc., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 040631 (January 20, 1993, Flynn, J.) ( 8 Conn.L.Rptr. 258); United States Fidelity v. McDonnell Leasing Corp., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 112492 (June 1, 1992) Rush J.) ( 6 Conn.L.Rptr. 495); Holboken Wood Flooring v. Torrington Supply Co., Inc., 42 Conn. Sup. 153, 606 A.2d 1006 (1991, Blue, J.); Hall v. Sarstedt, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 096190 (September 11, 1990, Flynn, J.) ( 2 Conn.L.Rptr. 425); Malinowski v. Friedrich Air-Conditioning Co., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 0098955 (August 16, 1990, Hickey, J.) ( 2 Conn.L.Rptr. 228); Barr v. Harper Park Associates, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 126722 (November 22, 1995, Lewis, J.); Grenier v. New Haven Scaffolding, Superior Court, judicial district of Hartford at Hartford, Docket No. 590933 (July 26, 2001, Peck, J.); Terry v. Palace Aides, Inc., Superior Court, judicial district of Litchfield at Litchfield, Docket No. 0078989 (June 20, 2001, Cremins, J.); Parziale v. Salvatore, Superior Court, judicial district of Waterbury, Docket No. 142725 (August 14, 1998, Carroll, J.); Sheraton Hartford Hotel v. Schindler Elevators Co., Superior Court, judicial district of Hartford, Docket No. 527114 (June 10, 1996, Hennessey, J.); and Adamson v. McGann Medical Corp., Superior Court, Complex Litigation Docket, judicial district of Waterbury, Docket No. 316119 (July 8, 2002, McWeeny, J.).
A minority of superior court judges have found to the contrary. See Gazza v. Bandit Industries, Inc., Superior court, Complex Litigation Docket, judicial district of Hartford/New Britain at New Britain, Docket No. 400031 (January 22, 2001, Aurigemma, J.) ( 29 Conn.L.Rptr. 26); Rotonto v. Access Industries, Inc., Superior Court, judicial district of Hartford, Docket No. 582619 (January 20, 2000, Fineberg, J.) ( 26 Conn.L.Rptr. 274); Allstate Ins. Co. v. Chic Miller Chevrolet-Isuzu, Inc., Superior Court, Complex Litigation Docket, judicial district of Hartford/New Britain at New Britain (August 6, 1991, Aurigemma, J.); and Sebastiano v. Grundfos Pumps Corp., Superior Court, judicial district of Waterbury, Docket No. 160299 (September 19, 2001, Rogers, J.).
Following the authority of Kyrtatas v. Stop Shop, Inc., supra, this court holds that a cross claim is impermissible in a products liability action in which all parties to the cross claim are already parties to the underlying action. The motions to strike (##154 and 155) are granted.
ROBERT F. McWEENY, J.