Town of New Fairfield v. LLC (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 104)

The defendant, Sherman–Williams Company, has moved the court to strike the Third and Fourth Counts of the plaintiff's complaint for the reason that said counts, which allege causes of action for breach of implied warranties pursuant to §§ 42a–2–314 and 42a–2–315 of the Connecticut General Statute's Uniform Commercial Code, are barred by the exclusivity provision of the Connecticut Product Liability Act, § 52–572n(a) of the Connecticut General Statutes.   Specifically, the movant argues that, pursuant to § 52–572n(a), a product liability claim, as is stated in the Second Count, “shall be in lieu of all other claims against product sellers ․ for harm caused by a product.”

The case involves a claim by the plaintiff that paint manufactured by the defendant Sherman–Williams Company (“Sherman–Williams”) and purchased by the plaintiff from the defendant, Barbieri Painting & Decorating, LLC (“Barbieri Painting”), was applied to The Parsonage and, during the warrant period, had “cracked, flaked, peeled, bubbled, and/or lost surface adhesion in numerous places.”

The plaintiff has alleged in the Third Count of its complaint that Sherwin–Williams had impliedly warranted that the paint was “merchantable.”   The plaintiff has alleged in the Fourth Count of its complaint that Sherman–Williams had impliedly warranted that the paint was “fit for its intended purpose of coating the wood exterior of a building such as The Parsonage,” but that it had failed to so perform as alleged in Count Three.

The plaintiff has objected to the motion to strike and has argued that each of the counts of its complaint allege that Sherman–Williams is a “product seller” within the meaning of the Connecticut Product Liability Act (CPLA), Conn. Gen. Statute § 52–572n(a) et seq., and that the CPLA expressly permits claims against a “product seller,” such as Sherman–Williams, based on breach of implied warranty.

The court agrees with the plaintiff's assertion that the CPLA does not extinguish claims for breach of implied warranties of merchantability or fitness for a particular purpose, but rather expressly permits such claims against a “product seller” which the court finds Sherman–Williams to be.

As quoted by the plaintiff in its brief in opposition to the motion to strike, “CGS 52–572m(b) states:  ‘Product liability claim’ includes all claims or actions brought for ․ property damage caused by the manufacture, ․ design, formula, preparation, assembly, ․ testing, ․ instructions, ․ or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  ․ breach of warranty, express or implied ․”

For the foregoing reasons, the court hereby denies the defendant Sherwin–Williams' motion to strike the Third and Fourth Counts of the plaintiff's complaint.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.