Connecticut Bar Journal
70 CBJ 333.
The Preclusive Effect of the Connecticut Product Liability Act on Connecticut Unfair Trade Practice Act Claims
333The Preclusive Effect of the Connecticut Product Liability Act on Connecticut Unfair Trade Practice Act ClaimsBy JONATHAN B. TROPP AND JAMEs H. ROTONDO (fn*)Connecticut created a unitary form of product liability action by statute in 1979. A central principle of Connecticut's Product Liability Act ("PLA") (fn1) is that "A product liability claim ... shall be in lieu of all other claims against product sellers ... for harm caused by a product." (fn2) Nevertheless, courts and litigants have struggled with the meaning of this exclusivity provision of the PLA.
The Connecticut Supreme Court addressed the meaning and application of the exclusivity provision twice during the 1980's. In 1987, and then, conclusively, in 1989, the Supreme Court resolved that the PLA precludes common law claims for harm caused by a product, including claims of strict liability, negligence, and breach of warranty. (fn3) The Connecticut Supreme Court has never had occasion, however, specifically to consider whether the exclusivity provision of the PLA also bars statutory claims, such as those under the Connecticut Unfair Trade Practices Act ("CUTPA"). (fn4) Indeed, no appellate court has ever addressed the application of the PLA exclusivity provision to claims brought under CUTPA. Nevertheless, Connecticut's trial courts - both state and federal - have wrestled with this issue on many occasions over the last decade and appear to be reaching consensus.
This article will discuss the development of Judicial opinion on this issue, including the evolution of the "functional equivalence test" as it has emerged in the trial courts. This article will also describe the application of the functional equivalence test.
334I.SUPREME COURT DECISIONS
In 1986, in Daily v. New Britain Machine Company, (fn5) the Connecticut Supreme Court addressed for the first time the exclusivity provision of the PLA, concluding that the PLA was intended to be an exclusive, statutory remedy. Mr. Daily, who had been injured on the job by an injection molding machine, sued the manufacturer of the equipment under the PLA. The trial court granted summary judgment against Daily on the basis of the PLA's ten year statute of repose (fn6) because the manufacturer had sold the machine to the employer almost sixteen years earlier.
In the Supreme Court, Daily claimed that his complaint included common law theories of liability, barred neither by the PLA nor by its statute of repose. The Supreme Court disagreed, however, both because his complaint was fairly read only to include statutory claims and because common law claims were in any event barred by the PLA's exclusivity provision.
In 1989, the Connecticut Supreme Court was called upon, in Winslow v. Lewis- Shepard, Inc. (fn7) to confirm the exclusivity of the PLA in a case involving only common law claims. Winslow, like Daily, was injured by a piece of machinery and sought to avoid the ten year statute of repose under the PLA relative to work place injuries. (fn8) The court agreed to reconsider the issue addressed in Daily because it concluded that its earlier conclusion in Daily had been dictum. Daily had not actually included any claims in his complaint other than his statutory PLA claims. (fn9) Unlike Daily, Winslow actually alleged common law causes of action for strict liability, negligence and breach of warranty.
Winslow confirmed that the PLA bars claims falling "within its scope." Nevertheless, the Court was not called upon to clarify the types of claims that come within the scope of the PLA. Indeed, the claims at issue in Winslow - strict liability, negligence, and breach of warranty - were the very sorts of claims the PLA explicitly identifies as falling within its scope. The dispute in Winslow concerned an alleged ambiguity in the prefatory lan 335guage of the PLA, which states, "A product liability claim ... may be asserted and shall be in lieu" of other claims. (fn10) Thus, the sole issue in Winslow was whether that language - with its apparent conflict between the permissive "may" and the mandatory "shall" - revealed an intent to establish a preclusive effect at all. The court considered the legislative history of the statute to resolve this specific ambiguity and held that "[t]he legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope." (fn11)
The Supreme Court has never had subsequent occasion to consider the preclusive effect of the PLA as applied to statutory causes of action, such as CUTPA claims. Indeed, only one Supreme Court case has even included claims for harm caused by a product under both the PLA and CUTPA. (fn12) In Haesche v. Yissner, plaintiff, who was injured by a BB gun manufactured by one of the defendants, brought suit under the PLA and CUTPA. The trial court dismissed the case for failure to establish legal causation.
On appeal, the Supreme Court affirmed. It disposed of the PLA claim because plaintiff could not prove that he had suffered harm as a result of allegedly inadequate warnings. In reaching the same conclusion with respect to the CUTPA claim, the court held: The plaintiffs claim, however, must fail because in order to prove a private cause of action under CUTPA, the plaintiff must show not only that ... [the seller] engaged in an unfair trade practice, but that he suffered harm as a result .... Section 42- 1 10g(a) provides in relevant part that -[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-1 10b, may bring an action ... to recover actual damages." (fn13)
Because the court had already held that plaintiff could not prove any harm "as a result of" the alleged PLA violation, it went on to hold that the failure to warn that allegedly constituted an unfair trade practice was not a cause of his injuries. (fn14)
TRIAL COURT DECISIONS
Unlike the appellate courts, the trial courts have had more than a score of occasions to address specifically the effect of the PLA exclusivity provision on CUTPA claims. Three lines of authority have emerged from the trial courts. (fn15)
In 1987, the first reported cases to consider the preclusive effect of the PLA on CUTPA claims held that the PLA bars CUTPA claims, just as it bars common law claims. Soon thereafter, however, other decisions emerged, holding that CUTPA has a remedial purpose distinct from the goals of the PLA and, therefore, that CUTPA claims are not barred by the PLA. In the succeeding year, in a more nuanced decision, a so-called "functional equivalence test" emerged. Since that time, the functional equivalence test has been, by far, the most frequently applied method for resolving the propriety of CUTPA claims in products cases. Each of these three lines of cases is further described below.
The All-Or-Nothing Approach
1. Cases Holding the PLA Bars All Claims
In what became the first case with a published decision concerning the PLXs bar of CUTPA claims, Thomas Grieg brought suit against Koehring Construction Equipment Company and Arnold Company, Inc. in 1986, allegin that his decedent was injured by a product manufactured an distributed by the defendants. (fn16) He alleged causes of action under both the PLA and CUTPA.
In 1987, shortly after the Supreme Court's decision in Daily, and quoting extensively from it, the Superior Court in Hartford struck Grieg's CUTPA counts as barred by the PLA. The Court held; The reasoning the Supreme Court used in Daily to preclude common-law actions being brought with a product liability action should also be used by this court to preclude further statutory claims being brought with product liability claims. Conn. Gen. Stat. § 52-572n(a) is clear on its face. The statute provides: "A product liability claim may be asserted and shall be in lieu of all other claims against product sellers. (fn17)
337Shortly thereafter, in Dinardo v. Coronaverden Atkiebo, (fn18) relying on both Daily and Grieg, a second trial court struck a CUTPA claim as barred by the PLA. In Dinardo, the court noted that the plaintiff sought only to recover for personal injuries caused by an allegedly defective product. She claimed that the defendant's marketing of a defective product constituted an unfair trade practice. The court held that the plaintiff's exclusive remedy for harm caused by a product is a product liability claim.
These are the only two decisions to reach the conclusion that the PLA bars CUTPA claims that did not apply the functional equivalence test developed the following year.
2. Cases Holding the PLA Does Not Bar Any CUTPA Claims
Shortly after Grieg and Dinardo, the first decision going the other way appeared. In Collier v. Bridgehaven Truck Sales, Inc. (fn19) the court correctly recognized, as the Supreme Court had stated in Daily, that the PLA only bars claims within its scope. Without citation to either Grieg or Dinardo, the court then held that the conclusions reached in Daily only applied to common law claims. Further, the court concluded without any discussion or explanation - that a claim under CUTPA is not within the scope of the PLA.
The basis for the court's holding in Collier is unclear. Subsequent cases reaching the same conclusion suggest, however, that the court believed that...