LTD v. ABB (2012)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (# 242)

I

BACKGROUND

The following is a summary of the allegations in the revised third amended complaint (# 257) against defendant ABB, Inc.¹ The plaintiffs, Lake Road Trust Ltd. and Lake Road Generating Company, Limited Partnership, allege that they own and operate an electrical power generating plant located in Dayville and Killingly, Connecticut (the Facility).   The Facility uses three turbine generators and step-up transformers to alter the current for connection to a substation.   The electricity generated is ultimately sold through the ISO New England market.

In 1999 the plaintiffs contracted with Alstom Power, Inc. (“Alstom”) for construction of a combined cycle gas turbine power plant which ultimately became the Facility.   Complaint ¶ 8.   Plaintiffs allege that ABB, Inc., is a corporation with its principal place of business located in Norwalk, Connecticut and incorporated under the laws of the State of Delaware.   Complaint ¶ 3.   Plaintiffs allege that Alstom contracted with ABB, Inc. to provide the necessary step-up transformers for the Facility.   Complaint ¶ 9.   The transformers were built at the Facility in 2000.   Complaint ¶ 9.   Plaintiffs allege that Nynas USA, Inc., (“Nynas”), a corporation with its principal place of business in Houston, Texas and incorporated under the laws of Delaware, supplied the insulating transformer oil used in the transformers.   Complaint ¶¶ 5, 10.

In May 2005, one of the transformers at the Facility (“Unit 1”) suffered an electrical arching event which resulted in a Facility-wide power outage.   Complaint ¶ 12.   Testing of the transformer oil concluded that copper sulfide contamination was the major cause of the failure.   Complaint ¶ 17.   In November 2005, Nynas sent a letter to its customers advising that it had developed “an oil-related way to safeguard the oil influence for at-risk transformers in service” and recommended “NYPASS,” its passivator product which would “retard the sulphide deposition process.”   Complaint ¶ 23.

On February 12, 2006, Mark Lodder of ABB, Inc. issued a proposal for re-manufacture of Unit 1. In that letter, he noted that the transformer was originally designed and manufactured at the ABB South Africa factory and that ABB's “craftsman have been trained to build this design and have available the specially designed equipment required to ensure the final assembled components meets the design tolerances.”   Complaint ¶¶ 26, 27.   In early 2006, the plaintiffs retained ABB, Inc. to repair Unit 1. Complaint ¶ 25.

Based on advise given to the plaintiffs, passivator was added to a second transformer (“Unit 2”) in 2006.   Complaint ¶ 28.   Despite adding passivator to Unit 2, it failed on February 3, 2007.   Complaint ¶ 61.   As more fully discussed below, Plaintiffs have asserted claims against ABB, Inc., as well as against Alstom and Nynas, relating to the transformer failures.

II.

STANDARD OF REVIEW

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)  Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009).  “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  Home Ins. Co. v. Aetna Life & Casualty, Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

III.

DISCUSSIONA.Products Liability

In the second count of the revised third amended complaint, the plaintiffs claim ABB violated General Statutes § 52–572m because ABB was negligent in the design and manufacture of the transformers at the facility.   The plaintiffs further claim that ABB failed to give adequate warnings and instructions on the proper use and maintenance of the transformers.   Lastly, the plaintiffs allege that ABB breached the express warranty and also breached the implied warranty of merchantability as to the transformers at the Facility.

“[General Statutes] [s]ection 52–572n(a) allows [products liability] claims to be brought against ‘product sellers.’  Section 52–572m(a) defines ‘product seller,’ in pertinent part, as ‘any person or entity ․ who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.’   To maintain a product liability action under 52–572m et seq., the plaintiff must establish and prove, inter alia, that ․ the defendant was engaged in the business of selling the product ․ [and] the defect existed at the time of the sale ․ 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.”  (Citations omitted;  internal quotation marks omitted).   Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987).

1. Not Product Manufacturer or Seller

ABB, Inc. has moved for summary judgment on the second count arguing that the undisputed facts establish that ABB did not manufacture or sell the transformers at issue and thus cannot be liable under § 52–572m.   In support of its motion, ABB, Inc. relies on various documents such as the purchase order and the hand-over certificate for the transformers at issue to demonstrate that it did not manufacture or sell said transformers to the plaintiffs.   The purchase order, which is defendant's exhibit E, shows that ABB Powertech Transformers (Pty) Ltd (“ABB Powertech”), not ABB, Inc., was the entity that sold the step-up transformers to ABB Alstom Power (Switzerland) LTD.² The hand-over certificate, which is defendant's exhibit F, shows that ABB Powertech handed over the subject transformers to its customer, Alstom Power, on June 6, 2001.   As further evidence that ABB Powertech sold the transformers at issue, ABB, Inc. relies on correspondence between Alstom and Lake Road Generating Company wherein Alstom identifies ABB Powertech as the manufacturer of the transformers when discussing warranty issues.   See defendant's exhibits G and K. See also, defendant's exhibit H, I & J. (Various correspondence between Alstom and ABB Powertech discussing warranty issues wherein Alstom identifies ABB Powertech as the seller/manufacturer of the transformers.)

ABB, Inc. argues that all of this uncontested documentary proof, along with the plaintiffs' own admission on the record at the September 26, 2011 hearing that ABB Powertech and Powertech Transformers are the actual manufacturers of the transformers, demonstrate that there are no genuine issues of material fact that ABB, Inc. was not the manufacturer or seller of the transformers at issue and therefore it is entitled to summary judgment as to the second count.   See Transcript of September 26, 2011 Hearing, p. 40, l. 11–13.³

In response, the plaintiffs argue that there remain issues of fact regarding ABB, Inc.'s corporate history and its relationship to the company that built the Facility, Alstom, and the company that built the Units, ABB Powertech.   Specifically, the plaintiffs cite testimony given by an Alstom witness whereby the witness stated that ABB Power Generation's contracts were split up between Alstom, Inc. and ABB, Inc. when ABB Power Generation's name was changed to Alstom, Inc. Therefore, the plaintiffs argue, there remains a genuine issue of material fact as to what role ABB, Inc. had in construction of the Facility.

The allegations in the second count of the revised third amended complaint, however, are not allegations regarding construction of the Facility.   Rather, the second count is a products liability claim regarding allegedly faulty transformers.   Therefore, what role, if any, ABB, Inc. had in the construction of the Facility does not create an issue of fact with regards to whether ABB, Inc. is entitled to summary judgment as to the second count.   Additionally, the same Alstom witness that testified to the division of contracts when ABB Power Generation was changed over to Alstom, Inc. specifically testified that the Lake Road contract was reassigned to Alstom, not ABB, Inc. See Plaintiff's exhibit 4, p. 23.

The plaintiffs also argue that there is evidence that ABB, Inc. is or was part of the same company, ABB Powertech, that manufactured the transformers.   In support of this position, the plaintiffs cite to ABB, Inc.'s February 12, 2006 transformer service/re-manufacturing proposal wherein ABB, Inc. states that the technology for this transformer “falls under the ABB technology umbrella” and ABB, Inc.'s “skilled craftsman have been trained to build this design and have available the specially designed equipment required to ensure the final assembled component meets the design tolerances.”   See Plaintiffs' Memorandum in Opposition (# 274), Exhibit 16, p. 1. Plaintiffs further argue that ABB's access to proprietary design documents “suggests” that ABB, Inc. was the same company that designed and manufactured the transformers at issue.   Lastly, the plaintiffs argue that the nameplate on the transformers read “ABB” and is, therefore, evidence that ABB, Inc. manufactured or sold the transformers.

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  (Citation omitted.)  Water & Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994).  “Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  Home Ins. Co. v. Aetna Life & Casualty, Co., supra, 235 Conn. 202.

There is no factual dispute that the plaintiffs contracted with Alstom to construct the Facility.   There is also no factual dispute that Alstom contracted with ABB Powertech to provide the necessary transformers.   The evidence submitted by ABB, Inc. on this point is overwhelming.   In an effort to avoid the clear fact that ABB Powertech, not ABB, Inc. manufactured and sold the transformers, the plaintiffs try to muddy the waters by pointing to statements made by ABB, Inc. six years after ABB Powertech delivered the transformers to the Facility.   Specifically, the plaintiffs point to ABB's statements in its proposal to fix Unit 1 after it failed that the technology for the transformer “falls under the ABB technology umbrella” and its “skilled craftsman have been trained to build this design and have available the specially designed equipment required to ensure the final assembled component meets the design tolerances.”

These general statements made in a business proposal do not constitute sufficient evidence to counter the undisputed evidence put forth by the defendant and create a genuine issue of material fact as to who manufactured and sold the transformers.   That ABB, Inc. and a former sister company (once-removed) might share the same technology and skill in dealing with the technology is hardly surprising.   And that they do in no way suggests or creates a reasonable inference that ABB, Inc. was a manufacturer or seller of the transformers.   This is particularly so, when all of the evidence, including the plaintiffs' own admissions, prove otherwise.

Additionally, the fact that ABB, Inc. may have had access to proprietary design documents when it repaired the damaged transformers does not raise a genuine issue of material fact as to who manufactured or sold the transformers at issue.   There are a myriad of reasons why ABB, Inc. may have had access to such proprietary design documents, including being authorized by ABB Powertech to repair the transformers.   Other than speculating that having such access “suggests” that ABB, Inc. is or was the same company that designed and manufactured the transformers, the plaintiffs have failed to produce any evidence or law to support this theory.   The plaintiffs' suggestion or theory is simply not enough to create a triable issue of fact, when all of the evidence submitted by ABB, Inc. proves that their theory is without merit.

Because the undisputed facts establish that ABB, Inc. was not the manufacturer or seller of the transformers, it cannot be liable to the plaintiffs under § 52–572m regardless of whether the claim is styled as one for negligent design and/or manufacture, or failure to give adequate warnings and/or instructions, or breach of express and/or implied warranties.   Being a “product seller” is a requirement for all such claims under § 52–572m, and because ABB, Inc. is not one, all of the plaintiffs' claims in the second count fail.

2. Apparent Manufacturer

Recognizing the weakness in their claim that ABB, Inc. manufactured or sold the transformers, the plaintiffs, relying on Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 579 A.2nd 26 (1990), argue that ABB, Inc. may be held liable as an “apparent manufacturer.”   Specifically, the plaintiffs argue that because the nameplates on the transformers contained the name “ABB,” and because ABB supported the transformers, ABB, Inc. may thus be liable under the apparent manufacturer doctrine.

In Burkert, the plaintiffs sought damages for allegedly defective automatic transmission fluid sold to them by the defendant, Petrol Plus of Naugatuck.   Petrol Plus of Naugatuck then filed a third-party complaint seeking indemnification from the defendant oil company, Atlantic Coast Oil Co. (“Atlantic”), which had distributed the product, and from the defendant General Motors Co. (“GM”), which had licensed Atlantic to sell the product under one of GM's trademarks.   The central issue before the court was whether Petrol Plus of Naugatuck, as the distributor of the defective product, was entitled to indemnification against GM, which merely licensed Atlantic to use its trademark.  “Under the so-called apparent manufacturer doctrine of 400 of the Restatement, ‘one who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.’   “ Id., 77–78.

The court concluded, however, that “GM's status as a trademark licensor, without more, does not render GM liable under the apparent manufacturer doctrine.   Although it is ordinarily a question of fact whether a party was, under the circumstances of a particular case, the apparent manufacturer of a defective product ․ we conclude that the absence of any involvement on the part of GM in the production, marketing or distribution of the defective transmission fluid in this case precludes, as a matter of law, a finding that GM was an apparent manufacturer.   Accordingly, we hold that Petrol Plus is not entitled to indemnification under its strict tort liability and negligence claims.”  (Citation omitted;  emphasis added).  Id., 82.

The plaintiffs' reliance on Burkert is misplaced for two reasons.   First, as the court made clear, the apparent manufacturer doctrine only applies to common-law claims and not to claims brought under the Products Liability Act. In Burkert, the court held, as a matter of law, that GM was not a product seller under the Act and was entitled to judgment as to the claims asserted against it thereunder.  Id., 71–73.   The court only reached the apparent manufacturer issue because the Products Liability Act did not apply, and because Petro Plus had asserted common-law claims of negligence and strict liability in the alternative to its claim under the Act. Id., 73.

Here, the plaintiffs have only asserted a claim under the Products Liability Act. They have not asserted common-law claims of negligence or strict liability against ABB, Inc. The apparent manufacturer doctrine cannot be used to save a defective claim under the Act. To hold otherwise would be to judicially expand the reach of the Act beyond the clear language adopted by the legislature, and essentially water down the legislature's definition of “product seller.”   The court cannot, and will not, do so.

Second, even if the doctrine applied here, the plaintiffs have failed to submit evidence sufficient to create a genuine issue of material fact that ABB, Inc. could be considered an apparent manufacturer.   Just like in Burkert, the plaintiffs have presented no evidence that ABB, Inc. was involved in the production, marketing or distribution of the transformers.   In fact, all of the evidence submitted to the court is to the contrary.

3. Equitable Estoppel

The plaintiffs also argue that ABB, Inc. should be estopped from arguing that it was not the product manufacturer or seller.   Specifically, they argue that because ABB, Inc. made statements in 2005–2006 which were intended to persuade the plaintiffs that it was part of the same company that manufactured the transformers so that the plaintiffs would award the inspection and repair contracts to ABB, Inc., it should now be estopped from arguing that it was not the manufacturer or seller.   The plaintiffs argue that they relied on these statements and retained ABB, Inc. for the inspection and repair contracts and were damaged because ABB, Inc. provided shoddy and incomplete work.

“There are two essential elements to an estoppel:  the party [against whom it is asserted] must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief;  and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done.   Estoppel rests on the misleading conduct of one party to the prejudice of the other.   In the absence of prejudice, estoppel does not exist.”  (Internal quotation marks omitted.)  Fischer v. Zollino, 303 Conn. 661, 668, 35 A.3d 270 (2012).

The plaintiffs claim would require one to reach the illogical conclusion that, when they purchased the transformers in 1999, they somehow relied on the 2005–2006 statements made during the inspection and repair contract negotiations to make their purchasing decision.   Of course, that is metaphysically impossible.   Not surprisingly, the plaintiffs have offered no evidence in support of this theory.   Therefore, the plaintiffs have failed to meet the elements of an equitable estoppel claim.⁴

B.

Intentional Misrepresentation and CUTPA

In the fifth count of the revised third amended complaint, the plaintiffs claim that in 2005–2006, ABB, Inc. intentionally withheld information about the severity of the corrosive sulfur problem in order to conceal the problem with its transformer design.   It is alleged that ABB, Inc. withheld such information so as to induce the plaintiffs to retain ABB, Inc. for inspection and repair services.   It is further alleged that ABB, Inc. failed to disclose corporate directives it received regarding the design of the transformers and addition of passivator as a predetermined conclusion.   The plaintiffs argue that because they did not receive adequate advice, ABB, Inc. is liable for the second transformer loss they suffered.   In the seventh count, the plaintiffs allege that the intentional misrepresentation constitutes a violation of General Statutes § 42–110a et seq., Connecticut's Unfair Trade Practices Act (CUTPA).

ABB, Inc. claims that it is entitled to summary judgment on both claims because they were not brought within the applicable statutes of limitations.   Thus, they are time barred.

“To assert a claim for intentional misrepresentation ․ the buyers must prove that (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury.”  Biro v. Matz, 132 Conn.App. 272, 288, 33 A.3d 742 (2011).   A cause of action sounding in intentional misrepresentation is subject to a three-year statute of limitations pursuant to General Statutes § 52–577.   In addition, the statute begins to run when the misrepresentation is made.  “In construing our general tort statute of limitations ․ we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred ․ The date of the act or omission complained of is the date when the ․ conduct of the defendant occurs.”  (Citation omitted;  internal quotation marks omitted.)  Watts v. Chittenden, 301 Conn. 575, 583, 22 A.3d, 1214 (2011).

“[General Statutes § ]42–110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other business persons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy.”  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350–51, 994 A.2d 153 (2010).   Additionally, “in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury.”  (Citations omitted;  internal quotation marks omitted.)  Stevenson Lumber Company–Suffield, Inc. v. Chase Associates, Inc. et al., 284 Conn. 205, 214, 932 A.2d 401 (2007).   General Statutes § 42–110g(f), which governs CUTPA claims, provides:  “[a]n action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”  “[I]f the deceptive acts that ․ form the basis of the CUTPA claim occurred more than three years prior to the commencement of the action, that claim is time barred.”  Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 46, 717 A.2d 77 (1998).

Here, the alleged misrepresentations by ABB, Inc. occurred in 2005–2006 when it supposedly withheld information about the severity of the corrosive sulfur problem.   Thus, any claim of misrepresentation or violation of CUTPA had to be brought no later than 2009.   The plaintiffs did not assert their claims though until August 2011, well past the three-year statutes of limitations.   The claims are, therefore, untimely.

1. Continuing Course of Conduct

The plaintiffs attempt to avoid this conclusion by arguing that their misrepresentation and CUTPA claims are saved by the “continuing course of conduct” doctrine.   Specifically, they argue that ABB, Inc. had a duty to provide accurate advice to its customers, yet misrepresented to those customers that passivator would work simply to avoid liability and to placate those customers.   According to the plaintiffs, ABB, Inc.'s failure to correct this misrepresentation tolled the running of the statute of limitations until the plaintiffs discovered such misrepresentation during discovery in this matter in December 2010.

“[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ․ Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.”  Id., 584.   “Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff ․ A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.”  (Internal quotation marks omitted.)  Id., 585.

The plaintiffs have put forth no evidence to prove a “special relationship” existed between the plaintiffs and ABB, Inc. or that there was later wrongful conduct by ABB, Inc. subsequent to the alleged omission in 2005–2006.   The only relationship the plaintiffs have alleged between themselves and ABB, Inc. is a commercial contractual relationship.   Such a relationship, however, is insufficient to establish that a “special relationship” existed.   See Fichera v. Mine Hill Corp., 207 Conn. 204, 210, 541 A.2d 472 (1988).  “Such a contractual relationship ․ does not create a fiduciary obligation ․ upon the defendants ․ to disclose their prior lack of candor to the plaintiffs.”   Id. Absent such a special relationship, the defendant had no duty to disclose its lack of candor with the plaintiffs.  Id. As such, there was no breach of any duty owed such that it would have tolled the statute of limitations.  Id.

The plaintiffs have also failed to put forth any evidence of later wrongful conduct by ABB, Inc. that relates to the alleged original wrongful conduct.   The alleged wrongful conduct was ABB, Inc.'s alleged continuing failure to disclose the conflict created by the corporate directive it received regarding the transformer failures.   No other allegations have been made regarding some later or subsequent wrongful act by ABB, Inc.

The continued failure to disclose a prior misrepresentation simply cannot constitute continuing conduct that would toll the statute of limitations.   If it were, the statute of limitations would become meaningless.   Every plaintiff, no matter how far removed from the alleged misrepresentation, could argue, as the plaintiffs have done here, that their claim is timely because they just learned of the misrepresentation.   As noted above, that is not the law in Connecticut.   The statute of limitations begins to run from when the misrepresentation is made, not when it is discovered.   The plaintiffs' argument would turn this rule on its head, and is, therefore, rejected.

2. Relation Back Doctrine

The plaintiffs argue, in the alternative, that their misrepresentation claim is saved under the relation back doctrine.   Under that doctrine, “[a] party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same ․ If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed.”   Sherman v. Ronco, 294 Conn. 548, 555, 985 A.2d 1042 (2010).  “[I]n determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence.”  Id., 556.  “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ․ It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated.”  (Internal quotation marks omitted.)  Dimmock v. Lawrence & Memorial Hospital, Inc. et al., 286 Conn. 789, 798, 945 A.2d 955 (2008).

The plaintiffs argue that all of the damage they have suffered arises out of the same facts as set forth in the original complaint.   Specifically, they argue that the misrepresentation claim arises out of the same occurrence, i.e., the transformer failures, as alleged in the original complaint.   Though it is true that the damages the plaintiffs allege they suffered all arise out of the failure of the transformers, the causes of the damage alleged in the original action differ from those alleged in the revised third amended complaint.   In the original complaint, the plaintiffs alleged products liability and breach of contract counts against ABB, Inc. In the revised third amended complaint, in addition to the products liability claim, the plaintiffs also allege intentional misrepresentation and CUTPA claims against ABB, Inc. These new claims are based on alleged misrepresentations ABB, Inc. made in 2005–2006 regarding the severity of the corrosive sulfur issue.   They were supposedly made to induce the plaintiffs to retain ABB, Inc. to perform inspection and repair services.

The plaintiffs have failed to demonstrate how these new claims relate back to the original complaint.   The original complaint alleged products liability and breach of contract claims against ABB, Inc. with respect to the transformers that were installed at the Facility in 2000 and later failed.   No allegations were made in the original complaint regarding the inspection and repair contracts entered into in 2006.   Even looking at the pleadings broadly and realistically as the plaintiffs suggest, the court cannot hold that the misrepresentation claim somehow amplifies or expands what has already been alleged in the original complaint.   An entirely new and different factual situation is presented by the plaintiffs misrepresentation claim as that claim relates to actions or omissions committed by ABB, Inc. in 2005–2006 with respect to the inspection and repair contracts.   Therefore, the misrepresentation and CUTPA claims do not relate back to the original complaint and are thus time barred.⁵

Even if these new claims do relate back, they are still time barred.   The alleged misrepresentations occurred in 2005–2006, which would have required the plaintiffs to have brought the action by no later than 2009 in order for the matter to be considered timely filed.   The original complaint, however, was not filed until February 2010.   Because the CUTPA claim is also subject to a three-year statute of limitations pursuant to § 42–110g(f), it too is time barred for the reasons stated above.

3. Equitable Estoppel

Additionally, the plaintiffs argue that because ABB, Inc. actively concealed its conflict of interest between its obligation to inspect and repair the transformers versus the corporate directive it received to deny any manufacturing defect, it should be estopped from raising a statute of limitations defense to the misrepresentation and CUTPA claims.

“Equitable estoppel is invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused him to delay bringing his lawsuit.   This doctrine is applicable where the defendant has either misrepresented the length of the [statute of] limitations period or lulled the plaintiff into believing that it was not necessary for him to commence litigation.   Moreover, under Connecticut law, application of the doctrine of equitable estoppel is restricted to conduct or representations which were directed to the very point of obtaining the delay, of which [the party to be estopped] afterward seeks to take advantage by pleading the statute [of limitations].”  (Internal quotation marks omitted.)   Consoli v. Clark, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 96 0556499S (December 10, 1996, Wagner, J.T.R.) (18 Conn. L. Rptr. 363).

The plaintiffs have not put forth evidence which demonstrates that ABB, Inc.'s alleged concealment of its conflict of interest was directed to the very point of obtaining a delay in the commencement of suit against it by the plaintiffs.   Consequently, this argument is rejected.

IV.

Conclusion

As to the second count of the revised third amended complaint, ABB, Inc. has proven that there are no genuine issues of material facts that it was not the manufacturer or seller of the transformers at issue, and therefore cannot be held liable under § 52–572m.   Therefore, summary judgment is granted in favor of ABB, Inc.

As to the fifth and seventh counts of the revised third amended complaint, they are barred by their respective three-year statutes of limitations, and plaintiffs have failed to show that the claims can be saved by any other legal theory.   Therefore, summary judgment is granted in favor of ABB, Inc.

Bright, J.

FOOTNOTES

FN1. When ABB, Inc. filed its motion for summary judgment, the operative complaint was the second amended complaint.   While that motion was pending, the plaintiffs filed their revised third amended complaint.   The changes included in the revised third amended complaint do not affect the claims asserted against ABB, Inc. Thus, though ABB, Inc.'s summary judgment motion references the second amended complaint, the court references the revised third amended complaint as that is the current operative complaint..  FN1. When ABB, Inc. filed its motion for summary judgment, the operative complaint was the second amended complaint.   While that motion was pending, the plaintiffs filed their revised third amended complaint.   The changes included in the revised third amended complaint do not affect the claims asserted against ABB, Inc. Thus, though ABB, Inc.'s summary judgment motion references the second amended complaint, the court references the revised third amended complaint as that is the current operative complaint.

FN2. ABB, Inc. and ABB Powertech are separate corporate entities.   ABB, Inc. is owned by ABB Holdings, Inc. ABB Holdings, Inc. is owned by ABB Ltd. At one time ABB Ltd. also owned ABB Powertech.   Other than both at one time being part of the ABB Group of companies, there was no direct relationship between ABB, Inc. and ABB Powertech.   ABB, Inc.'s Responses to Plaintiffs' First Set of Interrogatories and Requests for Production of Documents, December 20, 2010, ¶ 4;  ABB, Inc.'s Responses to Plaintiffs' Second Set of Interrogatories and Requests for Production of Documents, January 19, 2011, ¶ 9..  FN2. ABB, Inc. and ABB Powertech are separate corporate entities.   ABB, Inc. is owned by ABB Holdings, Inc. ABB Holdings, Inc. is owned by ABB Ltd. At one time ABB Ltd. also owned ABB Powertech.   Other than both at one time being part of the ABB Group of companies, there was no direct relationship between ABB, Inc. and ABB Powertech.   ABB, Inc.'s Responses to Plaintiffs' First Set of Interrogatories and Requests for Production of Documents, December 20, 2010, ¶ 4;  ABB, Inc.'s Responses to Plaintiffs' Second Set of Interrogatories and Requests for Production of Documents, January 19, 2011, ¶ 9.

FN3. In fact, the plaintiffs have brought a separate products liability action against ABB Powertech and Powertech Transformers (Pty) LTD. in which the plaintiffs allege that ABB Powertech manufactured and sold the transformers at issue.   See Lake Road Trust Ltd. v. ABB Powertech (pty) et al., Docket no.   X04 HHD CV10 6016501S.   The plaintiffs further allege that Powertech Transformers is the successor-in-interest to ABB Powertech.   The defendants in that case have admitted that Powertech Transformers was previously known as ABB Powertech.   The defendants have further admitted that ABB Powertech designed, manufactured and sold the transformers.   They also have admitted that ABB Powertech provided certain warranties for the transformers..  FN3. In fact, the plaintiffs have brought a separate products liability action against ABB Powertech and Powertech Transformers (Pty) LTD. in which the plaintiffs allege that ABB Powertech manufactured and sold the transformers at issue.   See Lake Road Trust Ltd. v. ABB Powertech (pty) et al., Docket no.   X04 HHD CV10 6016501S.   The plaintiffs further allege that Powertech Transformers is the successor-in-interest to ABB Powertech.   The defendants in that case have admitted that Powertech Transformers was previously known as ABB Powertech.   The defendants have further admitted that ABB Powertech designed, manufactured and sold the transformers.   They also have admitted that ABB Powertech provided certain warranties for the transformers.

FN4. Whether such facts support an equitable estoppel argument regarding ABB, Inc.'s defenses to claims arising out of their repair work in 2006 is discussed below in section B.3..  FN4. Whether such facts support an equitable estoppel argument regarding ABB, Inc.'s defenses to claims arising out of their repair work in 2006 is discussed below in section B.3.

FN5. The plaintiffs argue that ABB, Inc. waived its right to raise a statute of limitations defense because it failed to object to the request to amend complaint.   This argument is without merit.   Though ABB, Inc. did not file an amended answer and special defenses to the second amended complaint, it did file such an amended answer and special defenses to the plaintiffs' revised third amended complaint.   See docket entry no. 272.00.   As such, ABB, Inc. has not waived its right to assert a statute of limitations defense..  FN5. The plaintiffs argue that ABB, Inc. waived its right to raise a statute of limitations defense because it failed to object to the request to amend complaint.   This argument is without merit.   Though ABB, Inc. did not file an amended answer and special defenses to the second amended complaint, it did file such an amended answer and special defenses to the plaintiffs' revised third amended complaint.   See docket entry no. 272.00.   As such, ABB, Inc. has not waived its right to assert a statute of limitations defense.

Bright, William H., J.