NBS v. Classic Restaurant Supply et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT CLASSIC RESTAURANT SUPPLY'S MOTION TO STRIKE

BACKGROUND:

The plaintiff, NBS Associates, LLC [“NBS”], owns and operates a restaurant.   NBS alleges that the defendant, Classic Restaurant Supply [“Classic”] is in the business of installing commercial floors and recommended particular flooring to NBS as being suitable for its needs in the restaurant kitchen.   NBS has filed this action against Classic and the installer of the flooring, Compass Flooring, Inc. [“Compass”], alleging that the flooring was unsuitable for its kitchen.   Count One is a breach of contract against Classic.   Count Two is a claim of misrepresentation directed against both defendants.   Count Three is a negligence claim against Classic.   Count Four is a claim of breach of implied warranty against both defendants.

Classic has moved to strike Counts Two, Three and Four, arguing that these claims are usurped by General Statutes § 52–572m et seq., commonly referred to as the Connecticut Product Liability Act. Classic argues that this is the exclusive remedy. § 52–572n(a).   The plaintiff opposes the motion, arguing that it does not claim Classic is a product seller, merely an installer, and therefore, § 52–572m et seq., is not appropriate.

LEGAL STANDARD:

“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).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   When ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id.

The role of the trial court in ruling on a motion to strike is “to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party 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).

ANALYSIS:

The issue here is not whether the common-law causes of action in these three counts have been sufficiently pled, but whether they may be pled at all.   General Statutes § 52–572n(a) states that a product liability claim “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.”  “It is now beyond dispute that this provision provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim.”  (Internal quotation marks omitted.)  Mazurek v. Great American Insurance Co., 284 Conn. 16, 27, 930 A.2d 682 (2007);  Winslow v. Lewis–Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989).   Further, in any products liability action, “the plaintiff must plead and prove that the product was defective and that the defect was the proximate cause of the plaintiff's injuries.”  (Internal quotation marks omitted.)  Haesche v. Kissner, 229 Conn. 213, 218, 640 A.2d 89 (1994).

NBS does not dispute this.   Rather, NBS disputes that it is making claims of product liability or product defect.   NBS does not allege that Classic is a product seller.   NBS characterizes Classic as an installer.   NBS doesn't claim that the flooring was defective, merely that it was unsuitable for this particular use.  “Once a particular transaction is labeled a ‘service,’ as opposed to a ‘sale’ of a ‘product,’ it is outside the purview of our product liability statute.   See General Statutes § 52–572m et seq.;  Coffee v. Cutter Biological, 809 F.2d 191, 193 (2d Cir.1987) ․” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987).   See, also, Zbras v. St. Vincent's Medical Center, 91 Conn.App. 289, 294, 880 A.2d 999 (2005) (medical surgery was labeled a service, not a product, so § 52–572m et seq. is not applicable).

General Statutes § 52–572m, et seq. does not preclude the claims of NBS because Classic is alleged to be the provider of services, not product.   Further, the product which was installed, flooring, is not claimed to be defective.   The causes of action alleged by NBS are, therefore, exclusive of the product liability act.

ORDER:

The defendant Classic Restaurant Supply, LLC's motion to strike is denied.

Robert E. Young, Judge

Young, Robert E., J.