Opinion
No. CV 06 5001796
January 29, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The issue presented in this case is whether counts six and seven of the plaintiff's amended complaint, alleging negligent performance of a contract and negligence, respectively, should be stricken on the ground that they fall within the scope of and are specifically precluded by General Statutes § 52-572m et seq., the Connecticut Products liability Act (liability act).
FACTS
On September 12, 2006, the plaintiff, the Church of the Resurrection, filed an eight-count amended complaint against the defendants, PGS Concrete Designs, LLC (PGS), Patric Jamo, and Tilcon Connecticut, Inc. (Tilcon). The plaintiff alleges the following facts.
On April 13, 2004, the Church of the Resurrection entered into a contract with Tilcon, where Tilcon agreed to provide seventy-six yards of design specific concrete mix for use by PGS for the installation of a stamped concrete surface. On June 5, 2004, the Church of the Resurrection entered into a contract with PGS, where PGS agreed to remove the pre-existing brick pavers and the setting bed from the entrance plaza and walkways of the church and replace them with a stamped concrete surface with borders to be used by residents, parishioners, and visitors to access the various structures on the church property. The work pursuant to the contracts between the Church of the Resurrection, and Tilcon and PGS, respectively, was performed in June 2004, and was completed on June 29, 2004. Within several months, the concrete plaza and walkways installed by PGS revealed defects, including areas of cracking, chipping, and spalling.
Counts five, six, seven, and eight of the plaintiff's eight-count amended complaint are brought solely against Tilcon, the movant in the instant case. Count five alleges breach of contract. Count six alleges negligent performance of a contract. Count seven alleges negligence. Finally, count eight alleges a products liability cause of action.
On September 18, 2006, Tilcon filed a motion with attached memorandum of law to strike counts six and seven on the ground that they fall within the scope of and are specifically precluded by the liability act. On October 5, 2006, the plaintiff filed a memorandum of law in opposition. This matter was heard on the short calendar on October 10, 2006.
DISCUSSION
"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). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
The defendant Tilcon argues that the negligent performance of a contract and negligence counts, respectively, are subsumed by and precluded under the liability act. Tilcon contends that § 52-572n(a) is the exclusive remedy for all claims falling within its scope, and that the plaintiff is barred from bringing its common-law negligence claims for harm allegedly caused by the concrete supplied by Tilcon.
The plaintiff counters that it was compelled to plead in the alternative because there is a split of authority as to whether a concrete supplier is deemed to be a "product seller" under the liability act. If Tilcon concedes that it is a "product seller" under the act, the plaintiff is willing to pursue its product defect claims solely in count eight which alleges a products liability cause of action. Nevertheless, the plaintiff argues that the motion to strike should be denied because counts six and seven partly allege negligence that does not relate to the concrete being defective.
Section § 52-572n(a) provides: "A products liability claim as provided in [section] 52-572m . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence . . . for harm caused by a product." Section 52-572m(a) provides in relevant part: "`Product seller' means any . . . entity . . . who is engaged in the business of selling such products whether the sale is for . . . use or consumption." "[Section] 52-572m et seq. does not define the term `product' . . . In construing this statute, it is therefore necessary and proper . . . to look to other statutes to determine whether [something] is a `sale' of a `product.'" Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403-04, 528 A.2d 805 (1987).
In Tofolowsky v. Bilow, Superior Court, judicial district of Tolland, Docket No. CV 97 0063795 (March 17, 2003, Scholl, J.) ( 34 Conn. L. Rptr. 322), the court looked to other statutes to aid in its determination of whether liquid concrete is a product. The court noted that
General Statutes § 42-115j deals with exceptions to the sale of commodities by liquid measure in Connecticut's Unfair Sales Practices Act. Among the exceptions which list various commodities are, concrete aggregates, concrete mixtures and loose solid materials such as earth, soil, gravel, crushed stone and the like, when sold by cubic measure . . ." (Internal quotation marks omitted.)
Id., 325.
The court concluded that liquid concrete is thus viewed as a commodity, and has "intrinsic value as a component part of many different items, such as [a] sidewalk . . . or . . . foundation . . ." Id. Accordingly, the court found that the liquid concrete supplied by the defendant in that case was a product within the meaning of the liability act, and that the defendant was a product seller because he was "in the business of the production of concrete for sale." Id.
Conversely, in the case of Truglio v. Hayes Construction Co., 66 Conn.App. 681, 785 A.2d 1153 (2001), the court was faced with the question of whether the sidewalk that the defendant had constructed was a product. The court concluded that the defendant had constructed the sidewalk using the form and pour method, and that the "essence of the relationship between the defendant and the buyer was the furnishing of a service, not the sale of a product, because the sidewalk was composed of concrete that was transported in liquid form to the site and then used by the defendant to pour the sidewalk" Id. 685. "Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product,' it is outside the purview of our products liability statute." Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403.
There is no apparent split of authority regarding whether a concrete supplier is a product seller for purposes of the liability act. In the present case, PGS is similar to the defendant in Truglio. PGS installed a stamped concrete surface, whereas Tilcon simply provided the design specific concrete mix for PGS's use, much like the defendant in Tofolowsky. In other words, PGS provided a service, and Tilcon engaged in a sale of concrete mix. Tofolowsky is the only case that addresses concrete suppliers, and " Truglio clearly does not stand for the proposition that liquid concrete is not a product . . ." Tofolowsky v. Bilow, supra. Therefore, Tilcon would constitute a product seller under the liability act.
Section 52-572m(b) provides:
"Products liability claim" includes all claims or actions brought for . . . property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. "Products 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.)
The legislative history of the liability act reveals such statements like that of Senator Salvatore C. DePiano: "[T]he Bill is intended as a substitute for prior theories for harm caused by a product. [It] is intended to cut down on the number of counts in a complaint for injuries caused by a product." 22 S. Proc., Pt. 14, 1979 Sess., pp. 4636-37. Senator DePiano emphasized that
it's definitely the intention to create a products liability cause of action and . . . to abolish all the various other types of actions that we've been using to date and that's what we referred to . . . that we're doing away with the multiple count [complaint] that usually takes place in this kind of a law suit. That is counts dealing with negligence . . .
Id., p. 4639.
In reviewing the legislative history of the liability act, the Supreme Court has held that "[t]he legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope." Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989).
In Hurley v. Heart Physicians, P.C., 278 Conn. 305, 324, 898 A.2d 777 (2006), the Supreme Court reaffirmed that "the exclusivity provision of the liability act makes it the exclusive means by which a party may secure a remedy for an injury caused by a defective product." The Supreme Court noted that the definitions within the liability act must be read
with the understanding that the [liability act] was designed in part to codify the common law of products liability, and in part to resolve, by legislative compromise, certain issues among the groups interested in the area of products liability. The [liability act] . . . was not designed to eliminate claims that previously were understood to be outside the traditional scope of a claim for liability based on a defective product. Given this contextual framework . . . a products liability claim under the [liability] act is one that seeks to recover damages for personal injuries . . . or for property damages, including damage to the product itself, caused by the defective product. (Internal quotation marks omitted.)
Id., 325.
The Supreme Court reiterated that "[t]he language of the exclusivity provision . . . suggests that it was not designed to serve as a bar to additional claims . . . either for an injury 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.) Id., 325-26.
The issue in the instant case is whether the plaintiff's negligent performance of a contract and negligence claims fall within the scope of the liability act. If they do, then they are "precluded and may not be asserted in conjunction with the liability act claim. If, however, the [negligent performance of a contract and negligence claims fall] outside the purview of the [liability act], [they] may be asserted and the exclusivity provision will not serve as a bar." (Internal quotation marks omitted.) Id., 324.
In its memorandum of law in opposition to the motion to strike, the plaintiff argues that the negligent performance of a contract and negligence counts partly allege negligence that does not relate to the concrete being defective. Specifically, the plaintiff cites subparagraphs 15(c), (d), (h), (j) and (k) of both counts, which state:
Tilcon Connecticut, Inc. breached its duty to the Church of the Resurrection to exercise reasonable care in its selection, care and delivery of concrete for the entrance plaza and walkways through its carelessness and negligence in that . . . c) it failed to properly maintain the concrete at the worksite; d) it failed to deliver the concrete during conditions that were suitable; . . . h) it failed to timely and properly pour the concrete after its delivery to the worksite; . . . j) it failed to supply suitable concrete to the worksite, and; k) it failed to properly coordinate and time the delivery of concrete to the worksite.
This court has reviewed the allegations in the plaintiff's negligent performance of a contract and negligence counts as a whole and in their entirety. The plaintiff seeks recompense for those damages caused by the concrete mix that Tilcon provided. Both counts speak of Tilcon's selection, care and delivery of the concrete, and address such activities as the preparation of the concrete, as well as failure to provide certain instructions. Even with regard to the five specific allegations from paragraph 15 that the plaintiff highlights, the essence of the plaintiff's claim is that the concrete that Tilcon delivered to the worksite was defective. Furthermore, both counts describe how the plaintiff: 1) will have to expend sums to repair or replace the defective concrete surface; 2) will lose the full use of its property during the repair period; 3) will suffer a diminution of the value of the property, and; 3) will suffer inconvenience to its parishioners, in addition to damage to its reputation in the community. It is clear that the plaintiff is pursuing claims for property damages that fall within the scope of the liability act.
After giving due consideration to the legislative history of the liability act, which indicates an intent to cut down on the number of counts in a complaint for injuries caused by a product, this court concludes that the liability act is the plaintiff's exclusive remedy for her common-law negligence claims falling within its scope. Accordingly, the motion to strike the negligent performance of a contract and negligence counts, respectively, is granted.