Opinion
No. X02 CV 06 5004272 S
March 20, 2009
MEMORANDUM OF DECISION RE KEJR, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO AQUIFER DRILLING AND TESTING, INC.'S THIRD-PARTY COMPLAINT
I. BACKGROUND
This case arises out of a claim by the plaintiff, Matthew Davey (hereinafter referred to as "Davey"), for personal injuries he allegedly suffered on June 30, 2005, as a result of inhaling carbon monoxide while present as a guest on commercial property owned by defendant, Professional Properties II, LLC, (hereinafter referred to as "Professional") in Brookfield, Connecticut. On October 17, 2006, Davey commenced a civil action in the Superior Court for the Judicial District of Danbury against Professional, Berkshire Environmental Services Technology, LLC (hereinafter referred to as "Berkshire"), and Aquifer Drilling Testing, Inc. (hereinafter referred to as "Aquifer"). Davey's claim for damages for personal injuries alleges that Berkshire and Aquifer were present on the property on June 30, 2005, performing subsurface drilling and soil sampling connected with certain environmental contamination testing that was being conducted by Berkshire and Aquifer for the benefit of Professional.
Davey's Revised Complaint alleges common-law causes of action sounding in negligence and recklessness against each of the three original defendants. Davey alleges that Aquifer was "performing environmental sampling and/or testing" on June 30, 2005, at Professional's commercial property, and that the personal injuries he suffered as a result of inhaling carbon monoxide were caused by unventilated or improperly ventilated exhaust that emanated from the drilling machine that Aquifer used to extract subsurface soil samples from borings in the interior of the building located on the property.
On June 7, 2007, Aquifer filed a Third-Party Complaint against Kejr, Inc. d/b/a Geoprobe Systems (hereinafter referred to as "Kejr"), seeking indemnification for any damages Aquifer may be ordered to pay to Davey in the underlying litigation, including attorneys fees and costs associated with the defense of Davey's claims. Aquifer's indemnification claims, sounding in negligence, breach of warranty, and products liability under the provisions of Connecticut General Statutes Section 52-572m et seq., respectively, are based on the contention that as the manufacturer of the drilling apparatus used by Aquifer (hereinafter referred to as the "geoprobe"), Kejr is liable for any damages for which Aquifer is ultimately charged.
The Third-Party Complaint asserts three causes of action: Count One purports to state a claim of negligence against Kejr on the grounds that Kejr: (1) failed to equip the Geoprobe with safeguards to ensure individuals in the vicinity of drilling operations would not be exposed to harmful levels of carbon monoxide, (2) failed to warn Aquifer of the need to undertake appropriate safeguards or remedies, (3) failed to provide modifications to safeguard against danger of carbon monoxide exposure, and (4) failed to recall the Geoprobe so as to fit it with hoses or other modifications. Each of these claims relate specifically to the product or the warnings concerning the product.
Count Two, based upon common-law breach of warranty, alleges that Kejr warranted that the Geoprobe was fit for the particular use to which it was intended to be used, e.g. indoor drilling, that Aquifer purchased the Geoprobe in reliance on that warranty, and that Kejr failed to warn that the unit was unfit for indoor application unless it was modified to monitor for and prevent carbon monoxide exposure to others in the vicinity of drilling operations.
Count Three alleges a right to indemnification pursuant to the Product Liability Act, C.G.S. Section 52-572m et seq., on the grounds that the Geoprobe was unreasonably dangerous in that it was "defectively designed such that it caused harmful levels of carbon monoxide exposure to persons in vicinity of the drilling operations, and such defect proximately caused plaintiff's injuries."
On January 12, 2009, Kejr moved for Summary Judgment as to the entire Third-Party Complaint. Kejr claims that all three counts of the Third-Party Complaint are insufficient as a matter of law on the grounds that: (1) negligence and breach of warranty claims, as in this case, may not survive alone, but must be part of a products liability claim and governed exclusively by the Products Liability Act, (2) Aquifier is not a product seller, and therefore cannot implead a third-party defendant product manufacturer in a products liability claim, and (3) Aquifier and Kejr are commercial parties, and as such Aquifer is precluded by the limitations of the Products Liability Act from asserting a products liability claim for commercial loss.
On March 5, 2009, Aquifer filed an objection to Kejr's Motion for Summary Judgment on the grounds that (1) the issues of indemnification and negligence are questions of fact for the jury, and (2) the allegations in the Third-Party Complaint do not fall within the ambit of the exclusive provisions of the Conn. Product Liability Act.
The matter was argued before the Court on March 16, 2009, at which time the Court reserved decision.
II. DISCUSSION A. Standard of Review
Summary Judgment shall be rendered [at any time] forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the party seeking summary judgment is entitled to it as a matter of law. Practice Book Section 17-49; QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 351, 773 A.2d 906 (2001). "Statutory interpretation is a matter of law over which this court's review is plenary." Wallingford v. Dept. of Public Health, 262 Conn. 758, 773, 817 A.2d 644 (2003). "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . . When construing a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Because the meaning of a statute is a question of law, the court properly engaged in the act of construing the meaning of the statute at issue in the present case." Somers W. Towne Houses, Inc. v. LAS Props. Ltd. P'shp, 108 Conn.App. 426, 429, 949 A.2d 483 (Conn.App. 2008).
B. Negligence Count
In Allard v. Liberty Oil Equipment Company, Inc., 253 Conn. 787, 756 A.2d 237 (2000), plaintiff brought a negligence action against the named defendant alleging that he slipped, fell and was injured when descending the steps of a ladder on his truck. Plaintiff alleged that the defendant was "negligent in failing to maintain its service area in a safe condition, failing to prohibit customers from entering the service area, and in failing to take measures to prevent customers from entering the dangerous service area," Id. at 789. Liberty Oil filed an apportionment complaint alleging that the portion of the oil truck that plaintiff descended was "designed, installed, manufactured, distributed, or sold by [the third party defendant], and was defective and unreasonably dangerous." Id. The third-party defendant moved to strike the third-party complaint on the grounds that, notwithstanding the allegations of negligence, the apportionment plaintiff alleged a products liability claim, not a negligence claim. Id. at 790.
The Allard Court rejected third-party plaintiff's attempts to allege as a negligence cause of action facts that fell squarely within the definition of "product liability claims" as that tern is used in C.G.S. Sec. 52-572m. The Court concluded:
Thus, it would be inconsistent with the provisions of Section 52-572h, as amended by P.A. 99-69, Section 1(o), to permit a defendant sued in negligence to claim apportionment against a product seller whose alleged misconduct tracks that of products liability, solely because the party seeking apportionment chooses to limit its allegations to those sounding in negligence.
Id. at 804. Accordingly, allegations of negligence that state what are otherwise claims that fall within the scope of a products liability claim, as that term is defined in C.G.S. Section 52-572m, must be construed as product liability claims subject to the provisions and limitations of the Act.
The Allard Court further held that "It is now beyond dispute that this provision [of the Act] 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." Id. at 800.
Defendants have argued that both the issues of negligence and indemnification are questions of fact for the jury and, therefore, Summary Judgment must be denied. While this maxim may be true existing in a vacuum, the interpretation and applicability of the products liability statute are questions of law for the Court to determine as part of this motion. It is clear to the Court that the negligence claim must be part of the Products Liability Count.
C. Breach of Warranty Count
C. G. S. Sec. 52-572m(b) provides that a "Product 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 not be 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 non-disclosure whether negligent or innocent." Pursuant to C.G.S. Section 52-572n(a), "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." Thus, the court in Martir v. Town and Country Club, Inc., Superior Court, Judicial District of Hartford at Hartford, Docket No. CV-07-009725S (October 17, 2008, Prescot, J.) ruled that a "negligence" claim sounding in breach of warranty was precluded by the exclusivity provision of the Products Liability Act and held that the apportionment complaint was therefore legally insufficient.
Aquifer's allegations of negligence in Count One and breach of warranty in Count Two fall squarely within the purview of the Products Liability Act. Each of the specific allegations of negligence is duplicative of the theories of liability enumerated in C.G.S. Sec. 52-572m(b). Additionally, in paragraph 10 of Count One Aquifer alleges that "Kejr, Inc. was in control of the circumstances causing injury, to the exclusion of [Aquifer]." Such an allegation is irrelevant to this type of negligence claim, but it is a required element of a products liability indemnification claim. Smith v. Dynamic Cooking Sys., 49 Conn.Sup. 394, 887 A.2d 966 (2005). Additionally, Count Two of the Third-Party Complaint sets forth a claim for breach of implied warranty. Such a claim is expressly included within the scope of the Act and therefore precluded as a common-law claim.
As alleged, contrary to the defendant's position, all three Counts of the Third-Party Complaint assert products liability claims and are governed by the provisions and limitations of the Act as set forth in the General Statutes.
D. Aquifer's Indemnification Claim
Pursuant to the provisions of C.G.S. Sec. 52-577a(b), only a "product seller," as that term is defined in C.G.S. Section 52-572m(a), may implead a third party in a products liability claim. A "product seller," under C.G.S. Section 52-572m(a), is defined as "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. The term `product seller' also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products."
In Paul v. Mcphee Electrical Contractors, 46 Conn.App. 18, 23, 698 A.2d 354 (1997), the defendant electrical contractor attempted to apportion liability against the manufacturer of a light fixture that allegedly fell from a ceiling and injured the plaintiff. The third-party plaintiff argued that it was entitled to assert a third-party indemnification claim under the act. The Appellate Court rejected this claim and held that the requirement in C.G.S. Section 52-577a(b) that only a "product seller" may assert an indemnification claim under the Act is mandatory. The Court emphasized in its opinion that it was not alleged in the complaint that the defendant was in the business of selling or leasing light fixtures or was involved in placing light fixtures into the stream of commerce.
In the present case Aquifer has failed to allege in its third-party complaint that it is a "product seller," within the meaning of C.G.S. Sec. 52-572m(a), with respect to the Geoprobe. The deposition testimony establishes that Aquifer is in the business of performing drilling services, not selling drilling machines. There is no evidence to the contrary. Aquifer is clearly not a "product seller" within the meaning of the Product Liability Act. Therefore, it cannot implead Kejr pursuant to the terms of the Act.
E. Commercial Loss
Aquifer's third-party complaint seeks monetary damages that may be assessed against it for injuries and losses allegedly suffered by the plaintiff. This type of claim constitutes a "commercial loss" under the terms of the Statute and is not recognizable as a cause of action under said Statute. The Products Liability Act provides that "as between commercial parties, commercial loss caused by a product is not harm and may not be recovered by a commercial claimant in a product liability claim. An action for commercial loss caused by a product may be brought only under, and shall be governed by, Title 42a of the Uniform Commercial Code." C.G.S. Sec. 52-572n(c). "The Legislature also stated that as between commercial parties, harm does not include commercial loss" pursuant to C.G.S. Sec. 52-572m(d). Gerrity v. R.J. Reynolds Tobacco Company, 263 Conn. 120, 128 n. 7, 818 A.2d 769 (2003). It has been held that the term "commercial loss" is "economic injury, whether direct, incidental, or consequential, including property damage and damage to the product itself incurred by persons regularly engaged in business activities consisting of providing goods or services in competition." Producto Machine Co. v. Ajax Magnethermic Corp., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV-236005 (November 10, 1987, Burns, J.). Thus, in Thomas v. Seaport Motor Inn, Inc., Superior Court, judicial District of New London at Norwich, Docket No. 122625 (August 26, 2002, Hurley, J.T.R.) the Superior Court held that a third party's claim for indemnification from a product manufacturer for personal injuries claimed against it under a premises liability theory of recovery, alleged potential commercial loss, and was therefore barred by the provisions of Conn. Gen. Stat. Sec. 52-572n(c).
Aquifer's Third-Party Complaint asks for indemnification for any award against it that may be recovered by the plaintiff in this case. Paragraph 12 of the First Count alleges that "In the event judgment enters in favor of the plaintiff and against Aquifer, the third party defendant, Kejr, Inc., is obligated to indemnify Aquifer for any such sums awarded, together with all costs and fees incurred to defend the action." Count Two makes the same claim for indemnity related to the alleged breach of warranty for particular purpose in paragraph 11 of the count. Aquifer further makes the same demand for indemnification in Count Three, alleging recovery for damage caused by a defective product. The claims of Aquifer constitute "commercial losses" under the Statute. Such claims are precluded if not claimed within an action under the provisions of the Uniform Commercial Code. As such, all Counts of the Third-Party Complaint are insufficient as a matter of law.
III. CONCLUSION
Based upon the foregoing reasons, Kejr's Motion for Summary Judgment dated January 12, 2009, is hereby granted.