Sprague v. Mapei Corporation

Filing 37

RULING granting 32 Motion to Dismiss; granting 27 Motion to Dismiss. Plaintiff is instructed to file an amended complaint consistent with this ruling within 15 days of this ruling's filing date. Signed by Judge Warren W. Eginton on 5/24/2012. (Candee, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TOWN OF SPRAGUE,

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Plaintiff,
v.
MAPEI CORPORATION,
Defendant.

3:11cv890 and 11cv1033 (WWE)

RULING ON DEFENDANT’S MOTIONS TO DISMISS
Plaintiff Town of Sprague maintains that defendant Mapei Corporation is liable
for damages because it falsely represented to the Town that its product “Concrete
Renew” would be suitable for resurfacing a sidewalk area. Plaintiff brings claims of
product liability pursuant to the Connecticut Product Liability Act (“CPLA”), Connecticut
General Statutes § 52-572m et seq., breach of contract, fraud and violation of the
Connecticut Unfair Trade Practices Act (“CUTPA”), Connecticut General Statutes § 42110g.
Defendant has filed a motion to dismiss the claims of breach of contract, fraud
and violation of CUTPA.
BACKGROUND
For purposes of ruling on a motion to dismiss, the Court considers the
allegations of the complaint to be true.
Defendant Mapei manufactures a product known as “Concrete Renew.” In its
informational material, defendant represented that “Concrete Renew” would meet
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plaintiff’s requirements for resurfacing a sidewalk.
Based on such representations, plaintiff purchased “Concrete Renew” for its
sidewalk resurfacing project. The complaint does not allege that the product was
purchased from defendant.
Defendant had issued written instructions for the application of “Concrete
Renew,” which plaintiff followed in the preparation and application process.
During the first winter after the resurfacing with “Concrete Renew,” the sidewalk
surface separated from the underlying material. A representative of defendant
determined that the “Concrete Renew” was not bonding to the host slab, was very brittle
and had lost hydration during the curing process. Defendant’s representative also
found that the failure was the result of plaintiff’s compliance with defendant’s written
instructions that failed to call for a saturated surface-dry prior to application. The
representative recommended that defendant review and change its published materials.
The surface area of the sidewalk required complete replacement.
DISCUSSION
The function of a motion to dismiss is “merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might be offered in support
thereof.” Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779
(2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all
well-pleaded allegations as true and draw all reasonable inferences in favor of the
pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the
grounds upon which the claim rests through factual allegations sufficient “to raise a right
to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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(2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the
court to draw the reasonable inference that the defendant is liable for the alleged
conduct. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).
DISCUSSION
Defendant argues that the CPLA represents plaintiff’s exclusive remedy and
thereby bars plaintiff’s claims for breach of contract, fraud and violation of CUTPA.
Section 52-572n(a), the exclusivity provision of the CPLA, provides that a
product liability claim “as provided” for in the CPLA “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.” The CPLA defines “product
liability claims” as “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 ...” and “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.”
Conn. Gen. Stat. § 52-572m(b). Harm is defined by the CPLA as “damage to property,
including the product itself, and personal injuries including wrongful death.” Conn. Gen.
Stat. § 52-572m(d).
The Connecticut Supreme Court has instructed that the CPLA is “the exclusive
means by which a party may secure a remedy for an injury caused by a defective
product.” Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126 (2003). “The
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legislature clearly intended to make our products liability act an exclusive remedy for
claims falling within its scope.” Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471
(1989).
In determining whether a specific cause of action falls within the scope of the
CPLA, the Court should examine the nature of the injury alleged and the alleged act
that caused the harm. Gerrity, 263 Conn. at 128 (exclusivity provision was not
designed to serve as a bar to additional claims for an injury not caused by the defective
product or a claim that is not for personal injury, death or property damage.) In Gerrity,
the plaintiff’s CUTPA claim was preserved because plaintiff alleged financial––not
personal or property––injury based upon the increased cost of cigarettes that plaintiff
had to pay as a result of defendant’s wrongful conduct.
Here, plaintiff’s CPLA claim is alleged according to the product liability theories of
strict liability, negligence, breach of warranty, failure to warn or instruct, lack of
adequate warnings or instructions, and misrepresentation or nondisclosure; plaintiff
seeks damages attributable to the defective product including the cost of the use of the
product, investigation, and replacement. In its contract, fraud and CUTPA claims,
plaintiff also seeks damages attributable to the failure of the “Concrete Renew” product.
The CUTPA claim asserts that plaintiff has had to pay a higher expense for renewal of
the sidewalks as a result of defendant’s conduct. However, such alleged replacement
cost of the sidewalk constitutes compensation for damages to plaintiff’s property.
Through its contract, fraud and CUTPA claims, plaintiff seeks damages for injury
to its property as a result of defendant’s defective product. Accordingly, CPLA’s

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exclusivity provision governs the contract, fraud and CUTPA claims. The motion to
dismiss will be granted.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss is GRANTED [docs. #27 and
32].
Plaintiff is instructed to file an amended complaint consistent with this ruling
within fifteen days of this ruling’s filing date.

__________/s/___________________
Warren W. Eginton
Senior U.S. District Judge

Dated at Bridgeport, Connecticut this __24th__ day of May 2012.

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