Beyer et al v. Anchor Insulation Co., Inc. et al

Filing 67

ORDER; Anchor's Motion 46 to Dismiss Count Five and Icynene's Motion 51 to Dismiss Count Eleven are GRANTED. Johns Manville's Motion 49 to Dismiss is GRANTED as to Count Eight and DENIED as to Counts Six and Seven. Signed by Judge Janet Bond Arterton on 10/28/2014. (Morril, Gregory)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD BEYER and MONICA BEYER,
Plaintiffs,
v.
ANCHOR INSULATION CO., INC., JOHNS
MANVILLE, INC., and ICYNENE CORPORATION,
Defendants.

Civil No. 3:13cv1576 (JBA)

October 28, 2014

RULING ON MOTIONS TO DISMISS
Defendants Anchor Insulation Co., Inc. (“Anchor”), Johns Manville, Inc., and
Icynene Corporation move [Doc. ## 46, 49, 51] for partial dismissal of Plaintiffs’ Second
Amended Complaint, asserting claims under the Connecticut Products Liability Act
(“CPLA”) and the Connecticut Unfair Trade Practices Act (“CUTPA”). For the reasons
that follow, Anchor’s and Icynene’s Motions are granted as to the CUTPA counts and
Johns Manville’s Motion is granted as to the CUTPA count and denied as to the CPLA
counts.
I.

Facts Alleged
Plaintiffs Richard and Monica Beyer allege that on September 27, 2010, they

contracted Anchor to install spray polyurethane foam (“SPF”) insulation, which is used as
an alternative to traditional fiberglass insulation, in the attic, basement and undercarriage
of their home in Niantic, Connecticut. (2d Am. Compl. [Doc. # 44] ¶ 7.) Defendants
Johns Manville and Icynene manufactured the insulation foam sprays that were used in
Plaintiffs’ home with Johns Manville’s used in the basement and undercarriage of the
home and Icynene’s used in the attic.

(Id. ¶ 13.)

In October 2010, shortly after

installation, Plaintiffs noticed that the insulation was emitting noxious and harmful,

fumes, gases and odors, and caused them to suffer from severe headaches, burning of the
skin and eyes, heart palpitations and/or irregular heartbeats, and difficulty breathing. (Id.
¶¶ 15–16.) Mr. Beyer’s preexisting asthma was exacerbated. (Id. ¶ 16.)
In November 2010, Plaintiffs noticed that the insulation foam materials were
starting to shrink and separate from the surfaces to which they were attached and
environmental testing revealed that the Johns Manville and Icynene products were both
defective in that they emitted toxic gasses and chemicals into their home. (Id. ¶¶ 17, 20–
21.) Plaintiffs then hired Anchor to remove the insulation products from their home,
which resulted in further contamination as dust and fumes permeated the home, and
Anchor failed to completely remove all of the insulation.1 (Id. ¶ 22.)

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Plaintiffs assert claims against Anchor for negligence (Count One), breach of
warranty (Count Two) and for Connecticut Products Liability Act (“CPLA”)—product
defect (Count Three), CPLA—failure to warn (Count Four), and Connecticut Unfair
Trade Practices Act (“CUTPA”) (Count Five); against Johns Manville for CPLA—product
defect (Count Six), CPLA—failure to warn (Count Seven), and CUTPA (Count Eight);
and against Icynene for CPLA—product defect (Count Nine), CPLA—failure to warn
(Count Ten), and CUTPA (Count Eleven). The original complaint [Doc. # 1-1] was filed
in state court and removed [Doc. # 1] to federal court by Defendants. Jurisdiction is
proper based on diversity of citizenship.
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II.

Discussion
All three Defendants move to dismiss the CUTPA claims (Counts Five, Eight, and

Eleven); Defendant Johns Manville also moves to dismiss Counts Six and Seven, the
CPLA claims.2
A.

CUTPA Claims (Counts Five, Eight, and Eleven)

Defendants move to dismiss the CUTPA claims in the Second Amended
Complaint on the grounds that they are barred by the CPLA’s exclusivity provision and
the statute of limitations. Because the Court concludes that Plaintiffs’ claims are timebarred, it will only address Defendants’ preclusion arguments as they relate to the statute
of limitations, that is, because the original complaint failed to allege any valid CUTPA

2

Anchor originally moved to dismiss Counts One and Two for negligence and
breach of warranty on the basis that the CPLA was the exclusive remedy for these
products liability claims. However, upon Plaintiffs’ representation that these claims are
“subsumed within the CPLA” and were pled separately simply “for organizational
purposes” (Pls.’ Opp’n [Doc. # 56-1] at 6), Anchor has withdrawn its motion to dismiss
Counts One and Two (see Anchor’s Reply [Doc. # 59] at 2). However, Johns Manville
maintains that Count Seven, which it characterizes as a “claim for negligent failure to
warn” should be dismissed because it is derivative of Plaintiffs’ CPLA claim in Count Six.
(Johns Manville’s Mem. Supp. [Doc. # 50] at 21.) Icynene likewise argues that the two
CPLA counts against it (Counts Nine and Ten) should be “subsumed into one unified
CPLA count.” (Icynene’s Mem. Supp. [Doc. # 52] at 19.) However, unlike Counts One
and Two that do not reference the CPLA, Counts Six and Seven against Johns Manville
are both claims under the CPLA and Count Seven makes no reference to a theory of
negligence. Although a plaintiff bringing a cause of action under the CPLA “retains the
right to allege traditional theories of recovery,” including failure to warn and strict
liability, these claims should be brought “under one unified CPLA claim.” Fraser v.
Wyeth, Inc., 857 F. Supp. 2d 244, 252 (D. Conn. 2012). However, where a plaintiff fails to
do so, rather than dismissing the claims and barring a theory of recovery, “the Court will
instead read the [separate] counts of the Complaint to constitute a single CPLA claim
broken up into individual common law theories of products liability.” Id.
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claims that were not precluded by the CPLA, the CUTPA claims in the Second Amended
Complaint, which were filed outside of the limitations period, do not relate back and are
necessarily time-barred even if they allege other valid CUTPA claims.
The CPLA provides that claims asserted under the 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.”

Conn. Gen. Stat. § 52-572n(a).

“The

exclusivity provision makes the product liability act 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). A products liability claim under the CPLA
“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.” Conn. Gen. Stat. § 52-572m (b).
The Connecticut Supreme Court has explained that the CPLA was intended to
codify the common law of product liability but “was not designed to eliminate claims that
previously were understood to be outside the traditional scope of a claim for liability
based on a defective product.” Gerrity, 263 Conn. at 128. Thus, “the 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,” but “it was not designed to serve as a bar to additional claims, including one
brought under CUTPA, . . . for an injury not caused by the defective product.” Id.
In Gerrity, the plaintiff brought suit against cigarette manufacturers alleging
under the CPLA that the defendants’ products were defective and unreasonably
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dangerous because they were addictive and caused lung cancer. 263 Conn. at 123. The
plaintiff also asserted claims under CUTPA alleging that “the defendants engaged in an
industry-wide scheme to defraud consumers into believing that there was a bona fide
scientific dispute regarding the addictive nature of cigarettes and the health hazards
associated with them” and in furtherance of this scheme “the defendants issued false
public statements, failed to disclose evidence of the addictive nature of cigarettes,
increased the nicotine levels in cigarettes, neutralized warnings of smoking related health
hazards, and targeted minors in advertising their products.” Id. at 123–24.
The Connecticut Supreme Court held that the exclusivity provision of the CPLA
only precluded CUTPA claims that were “nothing more than a product liability act claim
dressed in the robes of CUTPA” but did not apply to the plaintiff’s CUTPA claims which
sought “to redress merely a financial injury suffered by the decedent, of a kind that has
never been regarded as part of the traditional tort remedy for harm caused by a defective
product.” Id. at 129–130 (emphasis in original). The CUTPA claims survived because
they alleged “that the decedent was forced to pay a higher price for the defendants’
cigarettes than she would have had to pay in the absence of the wrongful course of
conduct allegedly engaged in by the defendants,” which is distinct from a claim for
personal injury, death or property damage that is the exclusive province of the CPLA. Id.
at 130–131.
Thus, while CUTPA is generally a broad remedial statute, in the products liability
context, Gerrity circumscribes the scope of a CUTPA claim and requires plaintiffs to
distinctly allege that any injuries claimed under CUTPA are separate “financial injuries”
rather than harm caused by a defective product. See Town of Sprague v. Mapei Corp., No.
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3:11CV890 (WWE), 2012 WL 1900120, at *2 (D. Conn. May 24, 2012) (“In determining
whether a [CUTPA claim] 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.”). Whether or
not Plaintiffs have met this pleading burden in the Second Amended Complaint need not
be decided because they have failed to do so in their original complaint and thus to the
extent that the Second Amended Complaint alleges any valid CUTPA claims under
Gerrity, they are time-barred.
The statute of limitations for a CUTPA claim is three years. See Conn. Gen. Stat.
§ 42-110g(f) (“An action under this section may not be brought more than three years
after the occurrence of a violation of this chapter.”). Plaintiffs’ original Complaint [Doc.
# 1-1] was filed on September 26, 2013, one day prior to the expiration of the statute of
limitations measured from the date when Plaintiffs contracted with Anchor for the
installation. The Second Amended Complaint was filed outside of the limitations period
and thus these CUTPA claims are time-barred unless they relate back to the original
complaint.
Fed. R. Civ. P. 15(c)(1)(B) provides that “[a]n amendment to a pleading relates
back to the date of the original pleading when . . . the amendment asserts a claim or

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defense that arose out of the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading.”3
“The purpose of Rule 15 is to provide maximum opportunity for each claim to be
decided on its merits rather than on procedural technicalities. For a newly added action
to relate back, the basic claim must have arisen out of the conduct set forth in the original
pleading. Under Rule 15, the central inquiry is whether adequate notice of the matters
raised in the amended pleading has been given to the opposing party within the statute of
limitations by the general fact situation alleged in the original pleading. Where the
amended complaint does not allege a new claim but renders prior allegations more
definite and precise, relation back occurs.” Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d
Cir. 2006) (internal quotation marks, citations and alterations omitted).
Although Plaintiffs’ original complaint asserted nominal claims under CUTPA,
the CUTPA claims asserted in the Second Amended Complaint address separate conduct
and thus would not relate back to the original complaint. The original CUTPA claim as
to Anchor is based on the same conduct that underlies the products liability counts,
alleging product liability due to the insulation foam emitting noxious fumes because

3

A federal court sitting in diversity should apply the relation back doctrine of
federal law where there is a conflict between state and federal law. However, there is no
conflict between Connecticut and federal relation back doctrine, see Vigilant Ins. Co. v.
Servco Oil, Inc., No. 3:09-CV-829 (JCH), 2010 WL 2710479, at *4 n.4 (D. Conn. July 7,
2010) (“[E]ven if Connecticut law were to apply, the Connecticut Supreme Court has
‘recognized that [the state] relation back doctrine is akin to rule 15(c) of the Federal Rules
of Civil Procedure’ and that the underlying policy justification of the doctrine is the same
as in federal law—‘namely, ensuring that parties receive fair notice.’” (quoting Sherman v.
Ronco, 294 Conn. 548, 556–57 (2010)), and thus the same analysis would govern under
Connecticut law.
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Anchor “improperly mixed products” sold by Johns Manville and Icynene when Plaintiffs
agreed to buy only Johns Manville’s product. (1st Compl. Count One ¶¶ 6, 13.) The
CUTPA claim expressly incorporated the allegations in the products liability count and
asserted that “Defendant Anchor engaged in deceptive trade practices, in violation of
[CUTPA],” because it represented that it would only install the Johns Manville product
but “actually installed different” insulation products. As a result, “Plaintiffs have suffered
ascertainable loss of money and/or property.” (Id. Count Three ¶¶ 16–19.)
As to Johns Manville and Icynene, the products liability counts of the original
complaint alleged that their products were “defective” and “unreasonably dangerous” and
as a result “caused the injuries set forth above, suffered by Plaintiffs” (id. Count Five
¶¶ 15–16, Count Eight ¶ 15–16) and that both companies breached their duties to warn
Plaintiffs “about risks and hazards associated with” the products (id. Count Seven ¶¶ 14–
15, Count Ten ¶¶ 17–18). The CUTPA counts as to these two defendants allege that they
“engaged in deceptive trade practices in violation of [CUTPA]” because they “represented
that their [products] were safe for residential use,” “failed to disclose risks and hazards
associated with their” products, and such products “were installed in Plaintiffs’ home and
caused the harm set forth above.” (Id. Count Six ¶¶ 14–17, Count Nine ¶¶ 18–21.)
As Plaintiffs conceded at oral argument, the CUTPA claims in the original
complaint do not allege any specific financial injury that is not caused by the defective
product but instead claim only damage caused by the defective product and a failure to

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warn.4 Thus, the original CUTPA claims would be barred by the CPLA’s exclusivity
provisions under Gerrity.
The Second Amended Complaint partially cures this pleading deficiency by
tracking the language of Gerrity and alleging that there was a “purposeful failure [by
Anchor] to disclose the risks and hazards associated” with installation and that Anchor
“unfairly and deceptively maintained the price of its installation services at an inflated
level and caused consumers to generally pay more for SPF installation than they would
have otherwise paid absent” Anchor’s “misrepresentations” that the insulation products
were “a better alternative to traditional insulation products” and that Anchor’s
“employees were qualified to install” the products. (2d Am. Compl. Count Five ¶¶ 46–
50.) Johns Manville and Icynene are alleged to have deliberately misrepresented that
their spray insulation products were “safe for residential use,” which allowed the
companies to “unfairly and deceptively maintain[] the price” of their products “at an

4

Plaintiffs maintained that the original complaint’s failure to allege a distinct
financial injury did not bar the claim under Gerrity, because the original complaint
alleged misrepresentations by Defendants. However, the alleged misrepresentations were
that the products were safe and Defendants failed to advise Plaintiffs of the risks
associated with them. (See 1st Compl. Count Three ¶¶ 16–19, Count Seven ¶¶ 14–15,
Count Ten ¶¶ 17–18.) Such claims are not distinct from CPLA claims for failure to warn
and warranty and thus are not valid CUTPA claims. See Gerrity, 263 Conn. at 126; see
also Provost-Daar v. Merz N. Am., Inc., CV136037872S, 2014 WL 1193481, at *5 (Conn.
Super. Ct. Feb. 24, 2014) (“Unlike the plaintiff in Gerrity, who alleged that she suffered a
financial injury that was separate from her personal injuries due to the defendants’
deliberate misrepresentations about the health hazards and addictive nature of cigarettes .
. . , the plaintiffs in this case have not sufficiently alleged any specific actions on the part
of the defendant that . . . caused [the plaintiff] a financial injury that is separate and
distinct from her personal injury.”).

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inflated level and caused consumers to generally pay more.” (Id. Count Seven ¶ 67,
Count Eleven ¶ 86.)
Relying on Gerrity, Plaintiffs contend that their CUTPA claims in the Second
Amended Complaint are not precluded by the CPLA because they have asserted a
financial injury that is distinct from their claims for personal injury, death, or property
damage under the CPLA, i.e., that “Defendants unfairly and deceptively maintained the
price of their products at an inflated level causing Plaintiffs to pay more . . . than they
would otherwise have paid in the absence of those misrepresentations” that their
insulation products were superior to traditional insulation products and were safe for
residential use. (Pls.’ Opp’n [Doc. # 56-1] at 12–13; see also 1st Compl. Count Six ¶ 16,
Count Nine ¶ 20.)
However, in asserting that Plaintiffs have alleged CUTPA claims in the Second
Amended Complaint that are distinct from their CPLA claims, they necessarily have
injected new facts and theories into the Second Amended Complaint, because the
CUTPA claims in the original complaint did not allege a distinct financial injury even in
conclusory fashion and thus would not provide notice of Plaintiffs’ new theory of inflated
prices. Thus, the Second Amended Complaint contains allegations based on separate

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conduct rather than rendering prior allegations “more definite and precise.”5 Slayton, 460
F.3d at 228.
Defending against the two grounds for dismissal of the CUTPA claims presents
Plaintiffs with a Hobson’s choice:

if they are correct that the Second Amended

Complaint alleges valid CUTPA claims under Gerrity, such claims are either refinements
of precluded CUTPA claims in the original complaint, which alleged no financial injury
resulting from unfair business practices apart from the selling and manufacturing of
defective products; or they are new, separate claims which may be non-precluded but as
such would not relate back to the original complaint and thus are time-barred.
Accordingly, Defendants’ motions are granted as to the CUTPA claims.
B.

CPLA Claims Against Johns Manville (Counts Six and Seven)

Johns Manville is the only Defendant that moves to dismiss the CPLA claims
against it, contending that these claims fail because Plaintiffs do not allege that “the
product was expected to and did reach the consumer without substantial change in
condition,” a required element of a strict-liability claim. Metro. Prop. & Cas. Ins. Co. v.

5

By contrast in Gurliacci v. Mayer, 218 Conn. 531 (1991), cited by Plaintiffs, the
plaintiff asserted a claim for negligence resulting from a car accident, and outside of the
limitations period, amended the complaint to add allegations that the defendant had
acted willfully, wantonly and maliciously at the time of the accident because he was
intoxicated. 218 Conn at 546–48. The Connecticut Supreme Court held that the
amendment related back, because the amendment was not “dramatic” and “did not inject
two different sets of circumstances and depend on different facts” or require the
defendant “to gather different facts, evidence and witnesses to defend the amended claim
. . . . but rather amplified and expanded upon the previous allegations by setting forth
alternate theories of liability.” Id. at 549. Here, the evidence required to defend a product
defect claim and a claim of inflated prices based on consumer misrepresentations would
be drastically different.
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Deere & Co., 302 Conn. 123, 131 (2011). Johns Manville contends that the basis for
Plaintiffs’ claim is that Anchor was negligent because it improperly mixed the foam
insulation products of two different companies, John Manville and Icynene. (Johns
Manville’s Mem. Supp. at 24.)
The Second Amended Complaint explains that all foam insulation products “are
formed when two liquids . . . referred to as an ‘A side’ and a ‘B Side’[] come together at
the tip of a spray gun” and “combine to form an expanding foam,” which is sprayed into
spaces where insulation is needed, and alleges that Anchor was negligent in its installation
for “[i]mproperly mixing SPF Product(s) and/or components(s) during the installation.”
(2d Am. Compl. ¶¶ 8, 31a.)
Plaintiffs’ original complaint alleged two different ways in which Anchor was
negligent: “[It] improperly mixed products and/or A-side and B-side components,
including SPF products manufactured, sold, and distributed by Defendant Johns
Manville, Inc., and Defendant Icynene Corporation.” (1st Compl. ¶ 13.) Thus, Plaintiffs’
originally advanced two separate improper mixing theories: (1) that Anchor wrongfully
combined the products of Johns Manville and Icynene and (2) that Anchor improperly
combined the A-side and B-side components of one or both of these single products.
The Second Amended Complaint refers alternatively to the improper mixing of
“Product(s) and/or component(s).”

However, unlike the original complaint, which

explicitly alleged that the Johns Manville and Icynene products were improperly
combined, the Second Amended Complaint does not do so and instead alleges that each
product was used in separate parts of Plaintiffs’ home: Johns Manville in the basement
and undercarriage and Icynene in the attic. (2d Am. Compl. ¶ 13.) Johns Manville
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assumes that the Second Amended Complaint continues to allege that Anchor
improperly mixed two separate products (see Johns Manville’s Reply [Doc. # 57] at 9), but
this theory is not explicitly alleged in the Second Amended Complaint. Rather, it only
explicitly alleges that Anchor improperly combined the components required to assemble
each individual product.
Plaintiffs’ theory that Anchor improperly combined the A-side and B-side of
Johns Manville’s product is not necessarily inconsistent with Johns Manville being
potentially liable for a product defect. While a manufacturer is generally not liable in
strict liability for a product defect if its product was altered or modified by a third party,
this limitation does not apply if: “(1) The alteration or modification was in accordance
with the instructions or specifications of the product seller; (2) the alteration or
modification was made with the consent of the product seller; or (3) the alteration or
modification was the result of conduct that reasonably should have been anticipated by
the product seller.” Conn. Gen. Stat. § 52-572p(a).
Plaintiffs maintain that this provision applies, because the Second Amended
Complaint alleges that Johns Manville sold its defective product “as a two-component
system to Defendant Anchor for application,” and that Anchor and Johns Manville
represented that Anchor was an “‘Approved Installer[]’ and/or ‘Factory Trained
Installer[].’’’ (2d Am. Compl. ¶ 13, Count Six ¶ 57.) Thus, Plaintiffs contend, they have
properly alleged that Johns Manville sold a single product that was delivered to Anchor as
two component parts with a “recipe” or instructions that required Anchor to combine
these components according to Johns Manville’s instructions. (Pls.’ Opp’n at 8.)

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As Johns Manville noted at oral argument, if after a factual record is developed,
the evidence shows that Anchor improperly installed or prepared the Johns Manville
product, a defense could be based on Anchor’s alteration or modification. However, this
is speculation and presents a question of fact that cannot be resolved on a motion to
dismiss as Plaintiffs have plausibly alleged that Anchor’s preparation of Johns Manville’s
product was an alteration or modification in accordance with the manufacturer’s
instructions or was at least a reasonably foreseeable result. See Conn. Gen. Stat. § 52572p(a).
Accordingly, Johns Manville’s motion to dismiss Counts Six and Seven is denied.
III.

Conclusion
For the reasons set forth above, Anchor’s Motion [Doc. # 46] to Dismiss Count

Five and Icynene’s Motion [Doc. # 51] to Dismiss Count Eleven are GRANTED and
Johns Manville’s Motion [Doc. # 49] to Dismiss is GRANTED as to Count Eight and
DENIED as to Counts Six and Seven.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 28th day of October, 2014.

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