S.K. Lavery Appliance Co. v. ASKO (2011)

MEMORANDUM OF DECISION ON MOTIONS TO STRIKE

This is a sixteen-count complaint by an appliance dealer seeking indemnification against various manufacturers and distributors for a loss arising from an appliance involved in a residential house fire allegedly caused by a defective dishwasher.

In the underlying case, the Arnheiter v. ASKO Appliances, Inc., et al., Superior Court, judicial district of Hartford, Docket No.:  CV 09–5031913 (Arnheiter case), was consolidated with the present case.   The plaintiff, S.K. Lavery Appliance Co. (Lavery), allegedly sold a dishwasher to the plaintiffs in the underlying case (The Arnheiters);  and the defendants, ASKO, Inc., ASKO USA, Inc., ASKO Appliances, Inc., and AM Appliance Group, Inc., (referred to collectively as ASKO in this memorandum) are, allegedly the manufacturers, producers, distributors, importers and/or sellers and/or successors in liability to the manufacturers, producers, distributors, importers and/or sellers of the dishwasher.

Presently before the court are two motions to strike, one filed by ASKO, Inc., ASKO USA, Inc., and ASKO Appliances, Inc., and the other filed by AM Appliance Group.   The two motions contain virtually identical arguments.

On March 24, 2011, ASKO, Inc., ASKO USA, Inc., and ASKO Appliance, Inc., moved to strike the Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, Eleventh and Twelfth Counts of the complaint, on the ground that Lavery failed to state claims for contribution and breach of warranty.   In particular, as to the Second, Sixth, and Tenth Counts, it is alleged that Lavery has not sufficiently pleaded claims for contribution as Lavery has not alleged that a judgment has been rendered in the underlying action.

On the same date defendant, AM Appliance Group, Inc., (“AM”), moved to strike the Fourteenth, Fifteenth and Sixteenth Counts, on the ground that the plaintiff, Lavery fails to state legally sufficient claims for contribution and breach of warranty.   In particular, as to the Fourteenth Count, it is alleged Lavery has not sufficiently pleaded a claim for contribution as Lavery has not alleged that a judgment has been rendered in the underlying Arnheiter action.

—I—

ASKO moves to strike Counts Two, Six, Ten and Fourteen, which are claims for contribution, on the grounds that the claims are premature and do not state causes of action.   Specifically, ASKO argues that Lavery has not alleged that a judgment has been rendered in the underlying case or that Lavery discharged the common liability by a payment to the underlying plaintiffs, and such allegations are preconditions to an independent cause of action for contribution under General Statutes § 52–572o(e).   As support for its position, ASKO relies on our Supreme Court's statement in Malerba v. Cessna Aircraft Co., supra, 210 Conn. 195, that “the preconditions of § 52–572o(e) apply only to those circumstances where a party elects to pursue an independent cause of action for a contribution rather than impleading the prospectively liable third party.”

Lavery of course intends to seek contribution from ASKO for any damages assessed in the consolidated case, and it argues that striking these counts will only cause delay.

In the present case, Lavery filed its operative complaint for contribution against all of the defendants, including AM Appliance Group, Inc., on January 24, 2011.   Lavery's contribution claim in the present case is an independent cause of action for contribution and, pursuant to Malerba v. Cessna Aircraft Co., supra, 210 Conn. 195, it is insufficiently pleaded because Lavery has not alleged that it discharged a judgment by payment of a common liability within the period of the applicable statute of limitations and commenced an action for contribution within one year after payment, or that it agreed while an action was pending to discharge a common liability and, within one year after the agreement, has paid the liability, as required by General Statutes § 52–572o(e).

Motion to strike Counts Two, Six, Ten and Fourteen is granted on the ground that Lavery has not alleged that the preconditions of § 52–572o(e) have been met.

—II—

ASKO further moves to strike Counts Three, Seven, Eleven and Fifteen, which are claims for consequential damages (consisting of Lavery's potential liability to the Arnheiters) pursuant to General Statutes §§ 42a–2–714, due to ASKO's alleged breach of warranty of merchantability pursuant to General Statutes § 42a–2–314, on the grounds that Lavery has not alleged that it suffered any past or present commercial loss, and accordingly, it argues, the claims are barred by the “exclusivity provision” of General Statutes § 52–572n(a).   ASKO also moves to strike Counts Four, Eight, Twelve and Sixteen, which are claims for consequential damages also consisting of Lavery's potential liability to the Arnheiters pursuant to General Statutes §§ 42a–2–714 and 42a–2–715 due to ASKO's alleged breach of the warranty of fitness for a particular purpose pursuant to General Statutes § 42a–2–315, on the grounds that the claims are barred by the “exclusivity provision” of General Statutes § 52–572n(a).

General Statutes, § 52–572n, the Connecticut Product Liability Act, provides:  “(a) A product liability claim as provided in sections ․ 52–572m to 52–572q, inclusive, and 52–577a 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;  (b) a claim may be asserted successfully under said sections notwithstanding the claimant did not buy the product from or enter into any contractual relationship with the product seller;  (c) as between commercial parties, commercial loss caused by a product is not harmful and may not be recovered by a commercial claimant in a products liability claim.   An action for commercial loss caused by a product may be brought only under, and shall be governed by, title 42a, the Uniform Commercial Code.”

General Statutes § 42a–2–714 provides, in pertinent part:  “(1) Where the buyer has accepted goods and given notification as provided in subsection (3) of section 42a–2–607 he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable ․ (3) In a proper case any incidental and consequential damages under the next section [42a–2–715] may also be recovered.”

General Statutes § 42a–2–715 provides, in pertinent part:  “(2) Consequential damages resulting from the seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;  and (b) injury to person or property proximately resulting from any breach of warranty.”

“Under [General Statutes] § 42a–2–314, the warranty of merchantability is implied in any sale of goods by a merchant seller ․ To recover under this section, a plaintiff must prove (1) that a merchant sold goods, (2) which were not merchantable at the time of sale, and (3) injury and damages to the plaintiff or his property (4) [were] caused approximately and in fact by the defective nature of the goods, and (5) [that] notice [was given] to the seller of injury.”  Standard Structural Steel v. Bethlehem Steel Corp., 597 F.Sup. 164, 187 (D.Conn.1984).

ASKO relies on Lopez v. General Motors Corp., Superior Court, judicial district of New Haven, Docket No., CV 89–0287165 (March 3, 1993, Gray, J.) [9 Conn. L. Rptr. 116], for its position that violations of the UCC may be alleged only in cases involving a commercial loss, and Lavery has not suffered a commercial loss.   In Lopez, which was a product liability case involving a defective automobile, the retailer's claim that the manufacturer was liable to the retailer because the manufacturer had violated the warranty of merchantability pursuant to General Statutes § 42a–2–314 failed because the count did “not allege any present or past commercial loss.”   That decision held that plain language of our Product Liability Act allows a party to allege a violation of § 42a–2–314 only in cases involving actual commercial loss, a claim which was absent in that case.

The motions to strike Counts Three, Four, Seven, Eight, Eleven, Twelve, Fifteen, and Sixteen is granted on the ground that Lavery failed to allege that it suffered any past or present commercial loss, and accordingly, the claims are barred by General Statutes § 52–572n.

CONCLUSION

Asko's motions to strike Counts Two, Six, Ten and Fourteen are granted as well as the motions to strike Counts Three, Four, Seven, Eight, Eleven, Twelve, Fifteen and Sixteen.

The corresponding motion to strike by AM Appliance Group, Inc., is also granted for the reasons stated.

Wagner, J., JTR

Wagner, Jerry, J.T.R.