Opinion
No. X07-CV02 0080440S
April 16, 2003
MEMORANDUM OF DECISION
The defendant, International Business Machines, Inc., moves to strike the first and third counts of the complaint filed in this proposed class action suit. The motion to strike is based on the preemption provision of the Connecticut Product Liability Act (CPLA), General Statutes § 52-572m et seq., and the failure to state a valid cause of action for unjust enrichment.
A motion to strike "admits all the facts well pleaded; it does not admit conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).
I
The first count of the complaint alleges a violation of the Connecticut Unfair Trade Practice Act, General Statutes Ch 735a, (CUTPA), and the third count attempts to make a claim for unjust enrichment. Both counts arise from the distribution and sale by the defendant of purportedly defective 75 gigabyte hard disk drives to a variety of computer manufacturers and vendors. The plaintiff is a member of a proposed class of end users who purchased the hard disk drives or computers which incorporated that device. The complaint further avers that these drives malfunctioned at an unacceptably high rate causing electronically stored data to be lost; that the drives were unable to perform satisfactorily contrary to the representations made by the defendant; and that the defendant failed to warn consumers about the deficiencies and intentionally or recklessly misled them concerning the quality and utility of this product.
The defendant argues that because the plaintiff also alleged the same defects, misrepresentation, and harm to consumers in the second count, which is a product liability claim, the CUTPA and unjust enrichment counts are barred by the preemption provision set forth in General Statutes § 52-572n (a) and the definition of "product liability claim" contained in General Statutes § 52-572m (b).
Our Supreme Court has very recently ruled that a CUTPA claim is preempted by the CPLA but only if the harm for which compensation is sought is for personal injury, death, or property damage, which injuries are governed by the CPLA. Where the loss claimed is other than personal injury, death, or property damage, a CUTPA claim remains viable even though the underlying misconduct alleged is the same. Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 129-30 (2003). In that case, the plaintiff alleged that a cigarette maker knowingly concealed and misled consumers regarding the deleterious and addictive nature of its product. Answering a certified question from the United States District Court, the Court held that, because the product liability claim concerned losses from personal injury and death and the CUTPA claim concerned the losses from the inflated price of cigarettes, the CUTPA claim fell outside the preemption of the CPLA. Id.
In the present case, whether the loss of electronically stored data constitutes property damage for the purposes of the CPLA is in doubt. General Statutes § 52-572m (b) and (d). When the nature of the loss, as in this case, is nebulous, a plaintiff ought to be able to plead alternative causes of action. Judge Berdon adopted this reasoning with respect to the CPLA and CUTPA in Skerrit v. Sandoz Nutrition Corp., Superior Court, New Haven J.D., d.n. 305253 (March 26, 1991) ( 3 Conn.L.Rptr. 433). This court employs the same approach and denies the motion to strike the first and third counts on the basis of preemption by the CPLA.
II
The defendant also contends that the unjust enrichment count is deficient because it fails to recite facts supporting a conclusion that the plaintiff conferred a benefit directly upon the defendant rather than merely through the chain of commerce. The court agrees.
In order to recover for unjust enrichment, a plaintiff must prove (1) that a benefit was conferred upon the defendant; (2) that the defendant unjustly failed to pay the plaintiff for the benefit; and (3) the lack of payment was detrimental to the plaintiff. Herring v. Daniels, 70 Conn. App. 649, 663 (2002). Paragraph 77 of the complaint states that the benefit conferred was unmerited profits from the sale of substandard hard disk drives which eventually reached the members of the class as end-users. There is no allegation that the plaintiff or members of the proposed class paid the defendant directly for the drives as opposed to paying third party retailers, middlemen, or computer manufacturers. The fact that, ultimately, the defendant may have received payment from someone for the hard drives is insufficient to establish a right to recover profits by this plaintiff. Absent the conferring of a benefit by the plaintiff directly, no action for unjust enrichment by him is valid. United Coastal Industries v. Clearheart Con., 71 Conn. App. 506, 511 (2002).
The benefits conferred by third party retailers, etc. may have been paid much earlier in time and far from the point of sale to the consumer. Statute of limitations and personal jurisdictional problems would loom if the consumers could sue for unjust enrichment for the sums paid by third parties earlier in the stream of commerce. Consequently, this court holds that, absent an allegation of purchases directly from the defendant, no cause of action for unjust enrichment may lie.
The motion to strike is denied as to the first count but granted as to the third count.
Sferrazza, J.