Catherine Dionne v. Raymours Furniture Co., Inc. et al. (2014)

MEMORANDUM OF DECISION RE THIRD PARTY DEFENDANT'S MOTION TO STRIKE (# 129)

On October 3, 2013, Benchmaster Furniture Company, LLC (Benchmaster) filed a motion to strike Raymours Furniture Co., Inc.'s (Raymours) ¹ third-party complaint on the ground that its claim is legally insufficient as it seeks indemnity pursuant to common law, which has been abrogated by the Connecticut Products Liability Act (the act), General Statutes § 52–572m et seq.   In response, on October 22, 2013, Raymours filed an objection to the motion to strike.   On October 23, 2013, Benchmaster filed a reply memorandum.   The matter was heard at the short calendar on October 28, 2013.

I

FACTS

On July 10, 2012 the plaintiff, Catherine Dionne, filed a one-count complaint against the defendant Raymours pursuant to the act.   In the complaint, the plaintiff alleges the following facts.   Raymours is a corporation transacting business within the state of Connecticut.   On March 6, 2011, the plaintiff was a customer at the Raymours' store in Newington, Connecticut.   At that place and time, the plaintiff suffered physical injuries when a Carting Reclining Chair in which she was sitting collapsed and she fell to the floor.   Raymours engages in manufacturing, selling, and/or other relevant activities which places furniture, such as the chair, into the stream of commerce whereby the furniture will reach consumers without any substantial change.   The chair was defective and unreasonably dangerous for the plaintiff's use.   Moreover, Raymours expressly and impliedly warranted that the chair was safe for its use of sitting and of merchantable quality.

The plaintiff further alleges that Raymours acted negligently and recklessly in placing the defective chair into the stream of commerce and that its conduct served as a substantial factor in causing her severe injuries.   The injuries include physical pain and disability, medical expenses, and other financial loss.   The plaintiff seeks a claim under the act and punitive damages as provided by General Statutes § 52–240b.   On August 2, 2012, Raymours filed an answer to the original complaint either denying or asserting lack of knowledge and information to its essential allegations.

On May 7, 2013, Raymours filed a motion to cite in Benchmaster, the manufacturer of the chair and requested the court's permission to serve a third party complaint on Benchmaster as a third party defendant.   The court granted the motion and, on May 15, 2013, Raymours filed a third party complaint against Benchmaster.

In the third party complaint, Raymours alleges that Benchmaster manufactured the parts and assembly components of the chair in question, and if any defect in the chair caused the plaintiff's injuries, the defect was created and caused by Benchmaster.   It further alleges that Benchmaster's liability was “primary and active;  whereas the actions of [Raymours] were secondary and passive,” thereby obligating Benchmaster to indemnify Raymours against any claims of product liability.   Further, Benchmaster had exclusive control over any defect in the chair at the time of the plaintiff's accident and Raymours had no reason to believe that Benchmaster would act negligently.   Accordingly, Raymours demands a defense and indemnification for any liability found against Raymours in this action, as well as its costs and expenses of litigation.

Thereafter, on June 14, 2013, the plaintiff filed an amended complaint with two counts, the first against Raymours and the second against Benchmaster.   The claim in each count repeated the allegations set forth against Raymours in the original complaint.

II

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

In its memorandum of law in support of its motion to strike, Benchmaster argues that Raymours' third-party complaint is legally insufficient because it purports “to assert a common law indemnification claim against Benchmaster, a co-defendant in this product liability case, and ․ the Connecticut Product Liability Act ․ abrogated common law indemnity claims among defendants in a product liability action.”   Relying on Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 535 A.2d 357 (1988), Benchmaster contends that because it became a first-party co-defendant with Raymours, Connecticut case law provides that common-law indemnification claims between them are no longer legally viable and they are inconsistent with the controlling provision of the act concerning comparative responsibility.   In response, Raymours argues that later Connecticut case law, Malerba v. Cessna Aircraft Co., 210 Conn. 189, 554 A.2d 287 (1989), readdressed the issue and clarified that common-law indemnification continues as a viable cause of action in the context of products liability claims.   Raymours further asserts that General Statutes §§ 52–102a and 52–572a(b) both allow for the filing of a third party complaint in a common-law indemnification claim in a products liability case.

In the present case, the plaintiff brings a products liability claim for harm she allegedly suffered when she fell to the floor as a result of a defective chair which collapsed while she was sitting on it in the Raymours' store.   In General Statutes § 52–572n, the law provides individuals suffering harm caused by a product the right to assert a products liability claim against the product's seller.   It further clarifies that the statutorily provided claim “shall be in lieu of all other claims against product sellers.” § 52–572n.   Thus, in cases involving claims for recovery from harm caused by a product, General Statutes § 52–572m through 52–572r serve as the controlling law.

Operating within the act's statutory framework, the Connecticut Supreme Court in Kyrtatas v. Stop & Shop, Inc., supra, 205 Conn. 695 addressed the issue of “whether common law indemnity principles based on the concept of active versus passive liability apply in the context of a statutory product liability action.”   The court concluded “that the legislature in enacting [§ 52–572m through 52–572r] intended to abrogate common law indemnification in this area and replace it with a system of comparative responsibility.”  Id., 697.   It reasoned “that the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution ․” Id., 699.  “[T]he [latter] allows a jury to assign liability in specific proportion among several defendants on the basis of the evidence presented while the [former] doctrine arose in response to the common law prohibition against contribution, and applies only in situations in which a passive joint tortfeasor has no actual responsibility for a tort.”  Id., 699–700.   Furthermore, because § 52–572o now permits actions for contribution in the context of products liability, there is also no longer any reason to retain the doctrine of indemnification in this area.  Id., 701.   Lastly, “[i]f the General Assembly had intended to retain common law indemnification liability suits, it could have explicitly so stated, as it did in our comparative negligence statute.”  Id., 702.   As they made no such statement, courts may not read that intention into their “ ‘clearly expressed legislation provisions.’  “ Id.

The Kyrtatas court, however, clarified that its holding only “applies to situations in which all potential defendants are parties to the suit.   In such a situation, a jury's findings concerning the relative responsibility of the parties are conclusive, and are entitled to res judicata status.   On some occasions, a plaintiff may not sue all potential defendants.   A defendant may implead a third party who may be liable for all or part of the plaintiff's claim against him.”   Id., 702–03 n.2. Thus, in situations where a party is not named as a first party defendant, it may be sued as a third party defendant for indemnification in line with Krytatas' statement that indemnification principles are still viable in other contexts outside of its holding.  Id., 703.

The Kyrtatas rule, however, became less clear one year later when the Supreme Court decided the case of Malerba v. Cessna Aircraft Co., supra, 210 Conn. 189.   In an appeal from the granting of a motion to strike a third party complaint for indemnification, Malerba concluded that “common law indemnification continues as a viable cause of action in the context of product liability claims and that the comparative responsibility principles that serve as its foundation do not bar a later determination of liability as between an indemnitee and indemnitor.”  Id., 198–99.  “Procedurally, Kyrtatas dealt with a situation where the cross-complaint involved parties who were already parties defendant to the underlying lawsuit, while Malerba concerned the impleading of a third party into that action by an existing party defendant.   However, by its language, both explicit and implicit, Malerba purports to sanction cross-complaints for indemnity and contribution by one existing defendant against another existing defendant.   Accordingly Kyrtatas and Malerba appear to be inconsistent.”   Rotonto v. Access Industries, Inc., Superior Court, Judicial district of Hartford, Docket No. CV–98–0582691–S (March 20, 2000, Fineberg, J.) (26 Conn. L. Rptr. 274, 275).

In this light, “there is a split of authority in the lower courts as to whether or not common-law principles of indemnification are abrogated by the Products Liability Act.” ² Mateo v. Pereira, Superior Court, Judicial district of Hartford, Docket No. CV–07–5012193–S (December 7, 2009, Aurigemma, J.) (48 Conn. L. Rptr. 418, 419).   The majority of Superior Court decisions have adopted Kyrtatas prohibiting indemnification suits in situations where the third party defendants are also first party defendants in the case.  Id., 420.   This position finds strong support by the Malerba court's own words:  “We note that our holding in Kyrtatas ... was specifically limited to its factual circumstances which are different from the procedural posture in which we find this case.”  Malerba v. Cessna Aircraft Co., supra, 210 Conn. 198 n.9.

Clearly, the Supreme Court was aware of its previous holding in Kyrtatas, and intended its decision in Malerba to distinguish, but not overrule, Kyrtatas.   See Mateo v. Pereira, supra, 48 Conn. L. Rptr. 420 (“Malerba did not overrule Kyrtatas ... The holdings are not inconsistent.”  [Citation omitted.] ).   Accordingly, Malerba provides for common-law indemnification “as a viable cause of action in the context of product liability claims”;  Malerba v. Cessna Aircraft Co., supra, 210 Conn. 198;  but not under the circumstances that existed in Kyrtatas, where both the indemnitee and indemnitor are first party defendants to the case.

Moreover, the reasoning in Malerba indicates that its holding was intended to be limited and in harmony with the Kyrtatas decision.   Specifically, in Malerba, the court drew support for its position from the earlier case of Bulkeley v. House, 62 Conn. 459, 26 A. 352 (1893).   The Bulkeley decision argued that liability claims between the defendants should not be foreclosed by any original judgment against them in favor of the plaintiff “because as to [matters of liability between the defendants] no issue was made or tried in the former suit ․ Which of the defendants should pay the entire debt ․ is still unadjudicated.”  (Internal quotation marks omitted.)  Malerba v. Cessna Aircraft Co., supra, 210 Conn. 197.   Similarly the court permitted “subsequent action between [two or more defendants] unless those rights and liabilities [between the defendants] were expressly put in issue in the first action.   (Emphasis added;  internal quotation marks omitted.)  Id. In indemnity cases where both parties are also first party defendants to a products liability claim, the question of which defendant should pay the judgment to the plaintiff and the extent of any liability between them has already been “put in issue” and adjudicated on a comparative basis.   Accordingly, no further consideration of an indemnity claim is appropriate under the circumstances, and Malerba's conclusion that the “indemnity claim is not finally determined by the first party judgment” is not applicable.   See Malerba v. Cessna Aircraft Co., supra, 210 Conn. 198.

As in Kyrtatas, the plaintiff in the present case amended her complaint to include direct claims against both parties to the indemnity claim, Raymours and Benchmaster.   Considering the motion at this juncture with both parties having been established as first party defendants to the case, the holding in Kyrtatas barring indemnification claims is controlling.   The products liability act requires a determination of “the percentage of responsibility allocated to each party ․ as compared with the combined responsibility of all parties to the action.”  General Statutes § 52–572o.   A jury in this case would therefore be required to assign liability, if any, between Raymours and Benchmaster on a comparative basis.   Any further determination of a subsequent common-law indemnification claim between Raymours and Benchmaster would be inconsistent with the principles of comparative responsibility, and barred by the products liability act as interpreted by Kyrtatas v. Stop & Shop, Inc., supra, 205 Conn. 699–700.

III

CONCLUSION

For the foregoing reasons, Raymour's motion to strike Benchmaster's third party complaint is granted.

James W. Abrams, Judge

FOOTNOTES

FN1. The summons and caption state the name of this defendant as Raymours Furniture Company, Inc. Other pleadings in this case, refer to that defendant as Raymour Furniture Company, Inc. This memorandum will refer to that defendant as Raymours to be consistent with the summons..  FN1. The summons and caption state the name of this defendant as Raymours Furniture Company, Inc. Other pleadings in this case, refer to that defendant as Raymour Furniture Company, Inc. This memorandum will refer to that defendant as Raymours to be consistent with the summons.

FN2. The following are a sampling of the numerous superior court cases which found Kyrtatas to be controlling when the parties are the first party defendants:  Evans v. Yamaha Motor Corp., Superior Court, Judicial district of New London, Complex Litigation Docket, Docket No. X04–CV–02–0127361–S (December 19, 2003, Quinn, J.) (36 Conn. L. Rptr. 221);  Grenier v. New Haven Scaffolding, Superior Court, Judicial district of Hartford, Docket No. CV–00–0590933–S (July 26, 2001, Peck, J.);   Parziale v. Salvatore, Superior Court, Judicial district of Waterbury, Docket No. CV–97–0142725–S (August 14, 1998, Carroll, J.);   Mirabella v. Yale New Haven Hospital, Superior Court, Judicial district of New Haven, Docket No. 326943–S (July 5, 1994, Fracasse, J.) [12 Conn. L. Rptr. 65];  Buda v. Valley Diner, Inc., Superior Court, Judicial district of Ansonia–Milford, Docket No. CV–92–040631–S (January 20, 1993, Flynn, J.) (8 Conn. L. Rptr. 258);  U.S. Fidelity v. McDonnell Leasing, Superior Court, Judicial district of Stamford–Norwalk, Docket No. CV–90–0112492–S (June 1, 1992, Rush, J.) (6 Conn. L. Rptr. 495).   Mateo v. Pereira, Superior Court, Judicial district of Hartford, Docket No. CV–07–5012193–S (December 7, 2009, Aurigemma, J.) (48 Conn. L. Rptr. 418, 419–20)..  FN2. The following are a sampling of the numerous superior court cases which found Kyrtatas to be controlling when the parties are the first party defendants:  Evans v. Yamaha Motor Corp., Superior Court, Judicial district of New London, Complex Litigation Docket, Docket No. X04–CV–02–0127361–S (December 19, 2003, Quinn, J.) (36 Conn. L. Rptr. 221);  Grenier v. New Haven Scaffolding, Superior Court, Judicial district of Hartford, Docket No. CV–00–0590933–S (July 26, 2001, Peck, J.);   Parziale v. Salvatore, Superior Court, Judicial district of Waterbury, Docket No. CV–97–0142725–S (August 14, 1998, Carroll, J.);   Mirabella v. Yale New Haven Hospital, Superior Court, Judicial district of New Haven, Docket No. 326943–S (July 5, 1994, Fracasse, J.) [12 Conn. L. Rptr. 65];  Buda v. Valley Diner, Inc., Superior Court, Judicial district of Ansonia–Milford, Docket No. CV–92–040631–S (January 20, 1993, Flynn, J.) (8 Conn. L. Rptr. 258);  U.S. Fidelity v. McDonnell Leasing, Superior Court, Judicial district of Stamford–Norwalk, Docket No. CV–90–0112492–S (June 1, 1992, Rush, J.) (6 Conn. L. Rptr. 495).   Mateo v. Pereira, Superior Court, Judicial district of Hartford, Docket No. CV–07–5012193–S (December 7, 2009, Aurigemma, J.) (48 Conn. L. Rptr. 418, 419–20).

Abrams, James W., J.