Acadia Insurance Company v. Connecticut Light & Power Company

Filing 20

RULING AND ORDER. Defendant's Motion to Dismiss 8 is DENIED. Defendant may renew its motion to dismiss Counts One and Three within ten days of this ruling, if it appends a stipulation indicating that it concedes that electricity is a "product" and Defendant is a "product seller" within the meaning of the CPLA. Signed by Judge Michael P. Shea on 2/7/2013. (Lake, G.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THE ACADIA INSURANCE COMPANY,
Plaintiff,
v.
THE CONNECTICUT LIGHT & POWER
COMPANY,
Defendant.

No. 3:12cv1467 (MPS)

RULING AND ORDER
This suit arises out of an alleged electrical fire in November 2010. The Acadia Insurance
Company (“Acadia”), as subrogee for the insured owners of the home and barn that suffered fire
damage, sues the Connecticut Light & Power Company (“CL&P”) alleging that it caused the
fire. Pending before the Court is CL&P’s Motion to Dismiss [doc. # 8], which seeks to dismiss
Counts One and Three of the Complaint as barred by the exclusivity provision in the Connecticut
Product Liability Act (“CPLA”). For the reasons briefly discussed below, CL&P’s motion is
denied.
Section 52-572n(a) of the CPLA provides that 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.” By operation of this section, the CPLA
becomes, in effect, a mandatory one-stop shop under Connecticut law for product liability
claims. See Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 128 (2003) (“[T]he language
of the exclusivity provision makes clear that the product liability act was intended to serve as the
exclusive remedy for a party who seeks recompense for those injuries caused by a product
defect.”). Observing that Acadia brings a CPLA claim in Count Two and in light of Conn. Gen.
Stat. § 52-572n(a), CL&P seeks to dismiss Counts One and Three, which allege negligence and
breach of contract, respectively.

Although § 52-572n(a) preempts products liability claims brought as negligence or
contractual claims, it is unclear at this juncture whether Counts One and Three qualify as product
liability claims within the meaning of § 52-572n(a), because electricity may not qualify as a
“product” and the CL&P may not qualify as a “product seller.” Indeed, the CL&P has argued
repeatedly that electricity is a service rather than a product. See, e.g., Travelers Indemn. Co. of
America v. Conn. Light & Power Co., No. CV075012441S, 2008 WL 2447351, at *1 (Conn.
Super. Ct. June 4, 2008) (noting that CL&P argued that “[e]lectricity is not a product within the
meaning of the [CPLA]”); see also Pl.’s Opp’n [doc. # 15] at 5 (citing additional cases). Drawing
inferences in favor of Acadia, as the Court must, the Court concludes that Counts One and Three
state plausible claims that fall outside the scope of the CPLA and thus are not barred by the
exclusivity provision. See Gerrity, 263 Conn. at 127 (“If . . . the . . . claim falls outside the
purview of the product liability act, it may be asserted and the exclusivity provision will not
serve as a bar.”).
The CL&P argues that Connecticut law imposes a burden on plaintiffs “to choose
between its common law causes of action and its CPLA claim.” Def.’s Reply [doc. # 16] at 2. In
taking this position, the CL&P relies principally on Zarikos v. Signature Bldg. Sys., Inc., No.
X08CV044000284S, 2009 WL 1140457, at *3 (Conn. Super. Ct. Mar. 24, 2009). There, the
court dismissed purportedly redundant counts, even though the plaintiffs argued “that they
should not be put to the dilemma of gambling their entire case on the outcome of the
determination of whether or not the modules in question are ‘products’ for purposes of [the]
CPLA.” The Court declines to follow Zarikos for two reasons. First, the court in Zarikos relied in
part on the fact—not present here—that the plaintiffs sought to add the duplicative counts four
years after the original complaint was filed. See id. Second, the Zarikos court appears to
overread Gerrity, as the court’s citations to Gerrity do not support its conclusion that the
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pleading party bears the burden of guessing correctly whether its claims fall within or outside the
scope of the CPLA. Although the Zarikos court is correct that Gerrity demonstrates that courts
can, based on the pleadings alone, dismiss counts that, as a matter of law, fall within the scope of
the CPLA, Gerrity does not endorse the type of pleading roulette for which the CL&P advocates
in its motion. Cf. Travelers, 2008 WL 2447351, at *6 (“[Section] 52-572n(a) . . . does not
mandate that the cause of action pleaded under the CPLA be stricken when a plaintiff pleads a
common-law cause of action in the alternative.”). To the contrary, the Gerrity court repeatedly
indicated that claims falling outside the scope of the CPLA are not precluded, see Gerrity, 263
Conn. at 127, 128, 129, and ultimately held that the plaintiff’s CUTPA claim was not barred by
the CPLA’s exclusivity provision, see id. at 129. The position advocated by CL&P finds
inadequate support in Connecticut case law and runs counter to Rule 8(d)(3), which permits
parties to plead inconsistent claims.
The proper standard on the pending motion is therefore whether, drawing inferences in
favor of the plaintiff, a count falls within the scope of the CPLA as a matter of law. As
electricity may not be a “product,” and as it is possible to construe the first and third counts as
pleading that it is not, the Court cannot conclude as a matter of law that Counts One and Three
are precluded by § 52-572n(a). CL&P’s Motion to Dismiss [doc. # 8] is DENIED. CL&P may
renew its motion to dismiss Counts One and Three within ten days of this ruling, if it appends a
stipulation indicating that it concedes that electricity is a “product” and the CL&P is a “product
seller” within the meaning of the CPLA.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
February 6, 2013
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