Joan Mazzaia Executrix to the Estate of Donald Mazzaia v. A.O. Smith Corp. et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR ARTICULATION (MOTION # 397.00)

MOTION FOR ARTICULATION

On January 7, 2013, the defendant Skansa USA Building, Inc. moved to reargue and for an articulation with respect to this court's previous denial of the defendant's motion for summary judgment as to the fourth count of the plaintiff's sixth amended complaint.   See Mazzaia v. A.O. Smith Corp., judicial district of Fairfield, CV–11–5029478–S, (December 26, 2012, (Bellis, J.).   The defendant states that “[t]he specific ground on which this motion is predicated is that the [court's] decision fails to address the argument presented by Skansa that the plaintiff's claim in Count IV is barred by Conn. Gen. Stat § 52–555, which has a five-year statute of repose.”

This action arises out of the alleged exposure of the decedent, Donald Mazzaia, to various asbestos-containing products.   The plaintiff, Joan Mazzaia, executrix to the estate of Donald Mazzaia alleges that the decedent suffered such exposure while he worked in the United States Navy during the years 1959 to 1963, and while working in various capacities at General Dynamics/Electric Boat and Pfizer Corp. from 1963 to 1979.   Generally, count four, the subject of the defendant's motion, alleges negligence, while referencing General Statutes § 52–577c, a statute creating a limitation of actions for damages caused by exposure to hazardous chemical substances, or mixtures, or hazardous pollutants.   Specifically, this count alleges that the decedent was exposed to, and inhaled and/or ingested, asbestos fibers and particles from various asbestos-containing products of the defendant(s) which contributed to the decedent's mesothelioma and other asbestos-related pathologies.   The plaintiff further alleges physical and emotional pain, mental anguish and emotional distress, and various economic and non-economic losses through, inter alia, developing terminal malignant mesothelioma;  various physical ailments;  side effects from chemotherapy;  having to leave work and losing wages;  and experiencing emotional distress and mental anguish.

The defendant observes that the plaintiff relies upon § 52–577c as her theory of liability in count four, and that this statute contains a two-year discovery statute of limitation.   The defendant maintains, however, that the plaintiff is actually claiming the decedent's death as an element of her damages, but that our Supreme Court has held that the statute of limitation contained in Connecticut's wrongful death statute, General Statutes § 52–555, preempts the limitation period contained in § 52–577c(b).  Accordingly, it concludes that § 52–555 bars count four.

The court confines itself to the narrow issue as framed by the defendant in its motion.   In support of its claim that the plaintiff seeks damages for the decedent's death, the defendant cites to ¶ 53 of the plaintiff's sixth amended complaint.   This paragraph was one of the enumerated claims contained in the fifth count, which alleged wrongful death.   Previously, this court granted this defendant's summary judgment motion as to count one (product liability);  count two (loss of consortium);  and count five (wrongful death);  See Mazzaia v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. CV–11–5029478–S (November 29, 2012, Bellis, J.);   therefore, count five is no longer a part of the operative complaint.   Count four, however does remain as a viable count in the existing complaint.   Count four alleges negligence on the part of this defendant that resulted in the decedent's workplace exposure to respirable asbestos fibers in the workplace and this count expressly references § 52–577c.   The fourth count does not invoke § 52–555.

This court finds that § 52–555 does not bar count four of the plaintiff's sixth amended complaint.   Accordingly, for the reasons discussed above, the court denies the relief requested by the defendant in its Motion for Articulation.

BELLIS, J.

Bellis, Barbara N., J.