Michelle Sarpu v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 105)

FACTS

On January 29, 2013, the plaintiff, Michelle Sarpu, filed a one-count complaint against the defendant, Altaquip, LLC. In her complaint, the plaintiff alleges the following facts.   At all times relevant to this cause of action, the plaintiff was employed as a receiving associate at the Home Depot Store in Uncasville, Connecticut (Home Depot).   On February 14, 2011, employees of Home Depot hired Altaquip, a company that offers power tool repair services, to repair the handle on a Husky Generator (generator).   On that same day, after it alleged that it had repaired the handle, Altaquip returned the generator to Home Depot's receiving area.   The plaintiff grabbed the handle and began to move the generator out of the receiving area.   As she was moving it, the handle broke, which caused the generator to “roll into the back of plaintiff's legs knocking her to the ground.”   As a result, the plaintiff sustained personal injuries.   The plaintiff alleges that the negligence of Altaquip and its agents caused her injuries.

On June 27, 2013, Altaquip filed an apportionment complaint against Homelite Consumer Products, Inc. (Homelite) and Techtronic Industries North America, Inc. (Techtronic).  In its apportionment complaint, Altaquip denies the plaintiff's allegations of negligence and denies any liability to the plaintiff.   In addition, Altaquip alleges that Homelite and Techtronic designed and manufactured the generator at issue and, therefore, owed a duty of care to provide the generator in a reasonably safe condition.   Altaquip alleges that Homelite and Techtronic breached this duty of care by “designing and/or manufacturing the [g]enerator, including, but not limited to, its handle and/or handle locking mechanism, in an unreasonably unsafe and/or defective condition” and by “failing to warn users of the [g]enerator about the risk of harm associated with use of the [g]enerator, including, but not limited to, its handle and/or handle locking mechanism.”   Accordingly, Altaquip claims that if the plaintiff recovers damages in the original action, Homelite and Techtronic may be liable for their proportionate share of such damages.

Homelite and Techtronic filed a motion to strike the apportionment complaint on July 31, 2013, on the ground that it violates General Statutes § 52–102b.   They argue that the apportionment complaint improperly asserts a claim for products liability because products liability claims are outside the scope of General Statutes § 52–572h.   Following the motion to strike, the plaintiff filed an amended complaint on September 3, 2013, adding two negligence counts against Homelite and Techtronic.   On September 4, 2013, Altaquip filed a memorandum of law in opposition to the motion to strike, to which Homelite and Techtronic replied on September 6, 2013.   The matter was heard at short calendar on September 9, 2013.

LAW RE MOTION TO STRIKE

“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).  “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013).  “In ruling on [this] motion to strike, the court is limited to the facts alleged in the [apportionment] complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   Moreover, a motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis omitted;  internal quotation marks omitted.)  Id., 588.  “[I]t is fundamental that in determining the sufficiency of [the apportionment] complaint challenged by [the apportionment defendants'] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”   (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).

ANALYSIS

Homelite and Techtronic argue that the apportionment complaint is legally insufficient because it improperly asserts a claim for products liability.   Specifically, they argue that § 52–102b limits the claims that may be asserted in an apportionment complaint to only those made pursuant to § 52–572h and a claim for products liability is outside the scope of § 52–572h.   In opposition, Altaquip asserts two arguments.   First, Altaquip claims that the motion to strike is moot because the amended complaint filed on September 3, 2013, asserts direct claims against both apportionment defendants, and therefore, regardless of whether the court strikes the apportionment complaint, Homelite and Techtronic will remain parties to the litigation.   Second, Altaquip claims that, even if the court finds that the motion to strike is not moot, the case presents a choice of law question, regarding the law governing the alleged negligence, which cannot be resolved at this stage of the proceeding.

Section 52–102b(a) provides, in relevant part:  “A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.”   In addition, § 52–102b(f) provides, in relevant part:  “This section shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52–572h for a proportionate share of the plaintiff's damages as a party to the action.”

Section 52–572h(o) provides:  “Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52–555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52–556.”  Section 52–572h(b) provides:  “In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section.   The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.”   A “civil action to which section 52–572h applies,” within the meaning of § 52–102b, means “a civil action based on negligence.”  Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793–95, 756 A.2d 237 (2000).

Under § 52–572m(b), a “[p]roduct liability claim includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.   Product liability claim shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.”  (Internal quotation marks omitted.)   Negligence claims and product liability claims differ in that product liability claims “do not rest on notions of fault.”   (Internal quotation marks omitted.)   Caruso v. Willow's Kawasaki, Inc., Superior Court, judicial district of Waterbury, Docket No. CV–06–5002130–S (July 13, 2007, Upson, J.) (43 Conn. L. Rptr. 767, 768–69).   Rather, “[t]hey rest on more generalized notions of allocation of the plaintiff's loss to the product seller who puts a defective product into the stream of commerce, and therefore ordinarily is able to spread the loss by price adjustments.”   Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 806.

Based on this analysis, §§ 52–102b and 52–572h, therefore, only allow for negligence claims and product liability claims are not negligence claims.   These sections preclude apportionment claims based on product liability, which are exclusively controlled by General Statutes § 52–572m et seq., and can never arise under § 52–572h.   Belton v. Shack Foods of Connecticut, Superior Court, judicial district of New London, Docket No. CV–10–6005803–S (June 1, 2011, Cosgrove, J.).   Therefore, to determine whether the motion to strike should be granted, the court must resolve whether the apportionment complaint falls under the product liability statutes.

To determine whether the apportionment complaint falls under the product liability statutes, the court must determine whether the apportionment complaint alleges that Homelite and Techtronic are product sellers as defined by General Statutes § 52–572m(a) of the products liability act and whether the apportionment complaint alleges actions of Homelite and Techtronic as product sellers.   See New Haven Terminal v. Hungerfords, Inc., Superior Court, judicial district of New Haven, Docket No. CV–05–6000015–S (August 8, 2007, Cosgrove, J.) (44 Conn. L. Rptr. 258, 260).  General Statutes § 52–572n(a) provides:  “A product liability claim as provided in sections 52–240a, 52–240b, 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.”   A “product seller” is “any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.”  General Statutes § 52–572m(a).   Moreover, General Statutes § 52–572m(e) defines “manufacturers” as “product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer.”   There is some ambiguity as to whether a manufacturer also has to be “engaged in the business of selling such products whether the sale is for resale or for use or consumption” to qualify as a product seller.  “[G]enerally, [t]he last antecedent rule provides that qualifying phrases, absent a contrary intention, refer solely to the last antecedent in a sentence ․” (Citation omitted;  internal quotation marks omitted.)  Citizens Against Overhead Power Line Construction v. Connecticut Siting Council, 139 Conn.App. 565, 574, 57 A.3d 765 (2012), cert. granted on other grounds, 308 Conn. 906, 61 A.3d 1098 (2013).   Nevertheless, “where a qualifying phrase is separated from several phrases preceding it by means of a comma, one may infer that the qualifying phrase is intended to apply to all its antecedents, not only the one immediately preceding it” (internal quotation marks omitted);  id., 575;  and “[w]here the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the qualifying word or phrase will not be restricted to its immediate antecedent.”  (Internal quotation marks omitted.)  Bateson v. Weddle, 306 Conn. 1, 17, 48 A.3d 652 (2012).   Because there is no comma separating the qualifying phrase from the list of phrases it follows and the “sense of the entire act” does not require that the qualifying phrase apply to more than the last preceding section, the last antecedent rule applies and a manufacturer does not have to be “engaged in the business of selling such products” in order to qualify as a product seller.¹

In the present case, Altaquip alleges in its apportionment complaint that Homelite and Techtronic “designed and/or manufactured the [g]enerator” and “owed a duty of care to provide the [g]enerator in a reasonably safe condition.”   Even interpreting the complaint most favorably to Altaquip, the allegation that Homelite and Techtronic “designed or manufactured” the generator implies that they are manufacturers under § 52–572m(e) and, therefore, are product sellers under § 52–572m(a).

The court now must determine if the allegations in the apportionment complaint relate to actions of Homelite and Techtronic as product sellers.   In the apportionment complaint, Altaquip alleges that Homelite and Techtronic owed a duty of care to provide a generator in a reasonably safe condition and breached that duty by designing or manufacturing the generator in an unreasonably unsafe or defective condition and by failing to warn users of the generator about the risk of harm associated with the use of the generator.   Moreover, the apportionment complaint alleges that the plaintiff's injuries were caused by the negligence of Homelite and Techtronic.   Although Altaquip uses language to suggest the claims are for common-law negligence, these allegations essentially assert products liability claims for manufacturing defects, design defects, and failure to warn defects.   A party cannot attempt to plead around § 52–102b and § 52–572h “by casting his pleading in common-law terms ․” Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 800.   As the Supreme Court stated in Allard v. Liberty Oil Equipment Co., supra, 800, “we fail to see why, if a claimant may not avoid the exclusivity provision of [General Statutes] § 52–572n(a) [for product liability claims] by casting his pleading in common-law terms, a defendant seeking to bring in an apportionment defendant should be permitted to do so.”  (Emphasis in original.)   Although stated in terms of negligence, Altaquip's allegations are based on Homelite and Techtronic's conduct as a product seller in designing, manufacturing, and distributing the generator.   Therefore, the apportionment complaint is impermissible under § 52–102b.

Altaquip raises two arguments in opposition to the motion to strike.   First, Altaquip argues that the motion to strike is moot because the plaintiff has filed direct actions against both apportionment defendants.   Second, Altaquip argues that the motion to strike should be denied because the validity of the apportionment complaint turns on choice of law questions that cannot be decided at this stage of the litigation.   For the reasons provided below, this court finds both of these arguments to be without merit.

In support of its argument that the instant motion to strike is moot, Altaquip relies on Carpenter v. Law Offices of Dressler & Associates, LLC, 85 Conn.App. 655, 858 A.2d 820, cert. denied, 272 Conn. 909, 863 A.2d 700 (2004).   This reliance is misplaced.   In Carpenter, one of the defendants filed an apportionment complaint against the apportionment defendants.   The plaintiff amended her complaint and asserted direct claims against the apportionment defendants.   The apportionment defendants filed a motion to strike the apportionment complaint, which the court granted, and then filed a motion to dismiss the direct claims made against them.   They argued that because the court did not have subject matter jurisdiction over the apportionment complaint, the service of process by the plaintiff against the apportionment defendants pursuant to General Statutes § 52–102b(d) was “void ab initio and, therefore, the court did not have jurisdiction over the apportionment defendants.”  Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 658.   The trial court granted the motion to dismiss.   On appeal, the Appellate Court, citing Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), for the propositions that defects in service of process only affect personal jurisdiction rather than subject matter jurisdiction and § 52–102b is a service provision, reversed the trial court's decision regarding the motion to dismiss.   The Appellate Court held that the trial court erred in basing “its dismissal of the plaintiff's claims against the apportionment defendants on lack of subject matter jurisdiction over the apportionment complaint.”  Carpenter v. Law Offices of Dressler & Associates, LLC, supra, 661.   That decision, however, does not render the motion to strike moot in the present case.   Rather, Carpenter stands for the proposition that a trial court does not necessarily lack subject matter jurisdiction over claims brought pursuant to § 52–102b(d) if the court finds that it lacks subject matter jurisdiction over the apportionment complaint.   Just because a court does not lose subject matter jurisdiction over direct claims against an apportionment defendant by a plaintiff simply because it does not have subject matter jurisdiction over the apportionment complaint, that does not mean that decisions regarding the apportionment complaint are moot simply because there is a direct action against the apportionment defendant by the plaintiff.   Therefore, Altaquip has failed to show that the motion to strike the apportionment complaint is moot.

Altaquip also argues that there is a choice of law issue that cannot be resolved at this time, and therefore, the court must deny the motion to strike.   This argument is without merit.   Altaquip fails to state any valid reason from which one could conclude that another state's law may apply.   In Connecticut, the law that is applied in torts cases is the law of the jurisdiction that has the most significant relationship to the controversy, in accordance with the Restatement Second of Conflict of Laws. O'Connor v. O'Connor, 201 Conn. 632, 650, 519 A.2d 13 (1986).  “Section 145 of the Restatement Second [of Conflict of Laws] provides in subsection (1) that [t]he rights and liabilities of the parties with respect to an issue [in tort] are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principals stated in § 6. Section 6 of the Restatement, in turn, provides:  (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.  (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the [protection] of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.”  (Internal quotation marks omitted.)  O'Connor v. O'Connor, supra, 650–51.   Moreover, “[c]ontacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:  (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.   These contacts are to be evaluated according to their relative importance with respect to the particular issue.”  Id., 652.

Here, Altaquip has failed to argue any reasonable justification as to why Connecticut law would not apply in this case.   In its own objection to the motion to strike, Altaquip admits that this case involves a plaintiff from Connecticut, who works in Connecticut and whose injury occurred in Connecticut, and a defendant that is located in Connecticut.   Only Homelite and Techtronic are incorporated outside Connecticut.   However, Altaquip fails to state any reason why the apportionment defendants' state of incorporation and principal place of business would overcome the significant relationship that this case has with Connecticut.   Therefore, there is no potential choice of law question that renders the decision on the motion to strike premature.

ORDER

For the foregoing reasons, the defendants Homelite and Techtronic's motion to strike the apportionment complaint (# 105) is hereby granted.

Devine, J.

FOOTNOTES

FN1. Even if the last antecedent rule does not apply and the qualifying phrase does apply to manufacturers, the allegations that Homelite and Techtronic “provided” the generator are sufficient to infer that they “engaged in the business of selling such products.”   It can be implied from these allegations that Homelite and Techtronic's generators were intended for sale to users or consumers.   Nothing in the apportionment complaint suggests that Homelite and Techtronic's relationship to Altaquip is anything other than that of a product seller..  FN1. Even if the last antecedent rule does not apply and the qualifying phrase does apply to manufacturers, the allegations that Homelite and Techtronic “provided” the generator are sufficient to infer that they “engaged in the business of selling such products.”   It can be implied from these allegations that Homelite and Techtronic's generators were intended for sale to users or consumers.   Nothing in the apportionment complaint suggests that Homelite and Techtronic's relationship to Altaquip is anything other than that of a product seller.

Devine, James J., J.