Opinion
No. CV04 0287592-S
December 20, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE #117
The plaintiff, Vicki Ambro, commenced this action in which she claims damages for injuries she sustained at her place of employment when the handle of a cardboard box that she was lifting tore and the box, containing 24 full beer bottles, fell on her. The complaint's first two counts allege that the defendants Inland Paperboard and Packaging (Inland) and Miller Brewing Company, respectively, are liable under the product liability act for actions related to the allegedly defective cardboard box. The third count alleges that defendant Rogo Distributors (Rogo) is liable based on its negligent actions during its delivery of the box of bottles to the plaintiff's employer.
Rogo filed a cross claim against Inland seeking common-law indemnification. Rogo's cross claim alleges, in pertinent part, that the plaintiff's injuries, if not caused by her own actions, were caused by a defective box whose fabrication and design were exclusively within the province of Inland.
Before the court is Inland's motion to strike Rogo's cross claim on two grounds. First, Inland claims that a cross claim seeking indemnification is impermissible in a products liability action in which all parties to the cross claim are parties to the underlying action. Second, Inland claims that Rogo fails to allege sufficient facts to establish Inland's exclusive control of the situation at issue, as required to obtain indemnification at common law. Inland has filed a memorandum of law; Rogo has not.
"Prior to the amendment of . . . Practice Book § [10-42 in 1989], a party who failed to timely file a memorandum of law in opposition to a motion to strike was deemed to have consented to the granting of the motion. With the deletion of the foregoing provision from section [10-42], the failure to timely file an opposing memorandum of law will not necessarily be fatal and the court may therefore address the merits of the motion." (Emphasis in original; internal quotation marks omitted.) Alvarez v. Fleet National Bank, Superior Court, judicial district of New Haven, Docket No. CV 01 0450643 (April 20, 2004, Skolnick, J.).
Inland first moves to strike the cross claim on the ground that indemnification is not available in a product liability action in which the parties to the cross claim are also parties to the underlying action. In Kyrtatas v. Stop Shop, Inc., CT Page 19257 205 Conn. 694, 699, 535 A.2d 357 (1988), the Supreme Court held that "the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution." Inland asserts that while the subsequent decision in Malerba v. Cessna Aircraft Co., 210 Conn. 189, 198 n. 9, 554 A.2d 287 (1989), limited the applicability of Kyrtatas to its facts, the majority of courts have followed Kyrtatas when the parties to the cross claim are parties to the underlying product liability action, as they were in Kyrtatas.
See United Tech. Corp. v. Saren Eng., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV-02-0173135-S (May 21, 2003, McWeeny, J.) (collecting cases).
The Connecticut Product Liability Act, codified at General Statutes §§ 52-572m to 52-572q, provides the exclusive remedy for claims falling within its scope. General Statutes § 52-572n(a) (claim under the product liability act "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"). If the claim against Rogo properly fell within the scope of the act, the court would be required to apply the product liability law, despite its characterization as a negligence cause of action. "It is now beyond dispute that this provision provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim. Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 463, 562 A.2d 517 (1989) (plaintiff cannot avoid product liability statute of limitations by pleading product liability claim in common-law terms) . . ." (Citations omitted; internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000).
While the first two counts of the underlying complaint against Inland and Miller Brewing Company, respectively, unequivocally rely on the Connecticut Product Liability Act, the last count, against Rogo, does not rely on the Act, but relies solely on allegations of common-law negligence.
It is alleged that Rogo "distributed and delivered beer to businesses" and although "distributors" are specifically mentioned as a category of "product seller" in General Statutes § 52-572m(a), the definition further requires that the entity be engaged in the "business of selling such products." The plaintiff has not alleged that Rogo is engaged in selling the product at issue.
The plaintiff's allegations of negligence are as follows: "The plaintiff's injuries were caused by the carelessness and negligence of the Defendant, Rogo Distributors, its agents, employees, and/or servants, in one or more of the following respects:
a) IN THAT the storage room was not reasonably safe;
b) IN THAT the Defendant failed to place said product against the wall in said storage room;
c) IN THAT the Defendant failed to warn, or adequately warn, the Plaintiff that it had failed to place said product against the wall in said storage room;
d) IN THAT the stacking of said product was of such a height as to be an unsafe condition/location;
e) IN THAT the Defendant failed to remedy, or adequately remedy, said hazard;
f) IN THAT the Defendant failed to supervise, or failed to adequately supervise, said delivery in said location;
g) IN THAT the Defendant failed to exercise the degree of care which a reasonably careful person would have exercised under like circumstances."
As such, the issue before the court is whether a co-defendant sued under a negligence theory should be allowed to bring a cross claim for indemnification against a co-defendant sued under product liability. As a negligence defendant, Rogo is subject to the rules of liability set forth in the tort statute, General Statutes § 52-572h; as a product liability defendant, Inland is subject to the liability provisions of the product liability act, General Statutes § 52-572o. The tort liability statute provides for apportionment between negligence defendants only; General Statutes § 52-572h(o); and the Supreme Court has specifically held that the statute bars apportionment between a negligence defendant and a product liability joint tortfeasor because product liability is a statutory cause of action based on strict liability rather than a negligence theory. Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 804-06. In addition, a negligence defendant may be barred from seeking contribution from a non-negligent joint tortfeasor because the statutory right to contribution may depend upon apportionment having been made pursuant to the same statute. See General Statutes § 52-572h(h)(1). The tort statute expressly provides, however, that a negligence defendant continues to possess "any right to indemnity under existing law." General Statutes § 52-572h(j). Thus, Rogo, as a negligence defendant, may not seek apportionment with or, in all likelihood, contribution from a product liability defendant such as Inland. Rogo's common-law right to indemnity against a fellow tortfeasor, however, remains intact.
General Statutes § 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."
In contrast, a product liability defendant is subject to allocation by the fact finder of the comparative responsibility of "each party" pursuant to General Statutes § 52-572o(b). While the product liability defendant is subject to common-law joint and several liability; General Statutes § 52-572o(d); contribution is available between the joint tortfeasors. General Statutes § 52-572o(e); Malerba v. Cessna Aircraft Co., supra, 210 Conn. 195-96. Finally, although a majority of courts have held that indemnification is not available where the possible indemnitor and indemnitee are both defendants to the underlying product liability cause of action; Kyrtatas v. Stop Shop, Inc., supra, 205 Conn. 702; indemnification is available to the product liability defendant against joint tortfeasors who are not parties to the underlying product liability cause of action. Malerba v. Cessna Aircraft Co., supra, 210 Conn. 198-99 n. 9.
While a defendant sued in negligence, such as Rogo, is prohibited from seeking apportionment and, possibly, contribution from defendants sued on non-negligence theories, the product liability defendant may seek allocation of responsibility with and contribution from joint tortfeasors, whether negligent or otherwise liable. This difference distinguishes the present case from Kyrtatas, in which the court reasoned that common-law indemnification between product liability co-defendants is inconsistent with the comparative responsibility and liability provisions of the product liability act, which applied equally to the co-defendants. Such reasoning is inapplicable in the present situation where the statutory rights and remedies available to the product liability defendant are not equally available to the negligence defendant. The fact that the negligence defendant may be subject to a determination of comparative responsibility under the product liability act does not eliminate the need for a trier of fact to consider the claim for indemnification. As the Supreme Court noted in Malerba, "indemnification implicates different factual and legal considerations which may be outside of the matters determined . . . under the product liability act." Malerba v. Cessna Aircraft Co., supra, 210 Conn. 198. The provisions of the product liability act are not inconsistent with the negligence defendant's exercise of the right to common-law indemnification guaranteed by General Statutes § 52-572h(j). The Supreme Court's decision in Kyrtatas does not bar Rogo's claim for common-law indemnification against Inland.
In Kyratas, the defendants were all product liability co-defendants. In that case, the plaintiffs brought the action as a result of injuries suffered when an aerosol can of Stop Shop window cleaner exploded. Defendant Stop Shop was the seller and distributor of the aerosol can; the defendant Shield Packaging designed the formula, and filled the can for Stop Shop; the defendant Crown Cork Seal Company, Inc. manufactured the can, which bore Stop Shop's label. "`The plaintiffs brought suit under our product liability act and alleged two basic theories of liability against each of the three defendants: (1) that the Stop Shop aerosol window cleaner was defective and unreasonably dangerous because a chemical reaction between the can and its contents had caused the explosion, and because it had been sold without adequate warnings, instructions or safety precaution information; and (2) that the defendants had breached an implied warranty that the aerosol window cleaner was adequately contained, packaged and labeled; fit for its ordinary purpose; and safe for use in a normal manner.'" Kyrtatas v. Stop Shop, Inc., supra, 205 Conn. 696.
The motion to strike on that ground is denied.
Inland asserts as a second ground for its motion that Rogo has failed to allege sufficient facts to establish that Inland was in control of the situation at issue. A claimant for common law indemnification "must show that: (1) the party against whom the indemnification is sought was negligent; (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and the resulting injuries and death; (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent." Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001). The Supreme Court has defined "exclusive control over `the situation' as exclusive control over the dangerous condition that gives rise to the accident." Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997).
The question of whether a party was in exclusive control of the situation at issue is ordinarily a question of fact. The circumstances, may, however, "give rise to the question of whether, in light of the facts alleged . . . any reasonable juror could find that the [party] had exclusive control of the situation. Under such circumstances, this issue becomes a question of law." Skuziuski v. Bouchard Fuels, Inc., supra, 240 Conn. 704-05.
"It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "The court must construe the facts in the complaint most favorably to the plaintiff . . . 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 the present case, plaintiff alleges that her injuries resulted from a defective box, for which Inland and defendant Miller Brewing Company are responsible, and the negligent delivery of the box, for which Rogo is responsible. Rogo's cross claim alleges that the plaintiff's injuries, if not the result of her own actions, were the result of the design and manufacture of a defective box, which was exclusively within the province of Inland. Rogo further alleges that it was not negligent with respect to the fabrication, design, engineering or manufacture of the box and took possession of the box, without modification or alteration, from the Miller Brewing Company.
Construing the allegations of the cross claim in the light most favorable to the pleader, the question for this court then becomes whether, if these allegations were proven, a reasonable juror could find that Rogo had met its burden of proving that Inland was in exclusive control of the situation giving rise to the plaintiff's injuries and losses. Since the question could be answered in the affirmative, the cross claim is legally sufficient. This case does not present a "rare example" whereby the question of exclusive control may properly be decided as a question of law. Compare Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 705.
The motion to strike is denied.
BY THE COURT
Tanzer, Judge