Bourke et al v. MAN Engines & Components, Inc
Filing
118
ORDER: Defendant's 97 Motion for Summary Judgment is GRANTED. See attached ruling.Signed by Judge Donna F. Martinez on 3/28/2018. (Greenspoon, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FREDERIC A. BOURKE, JR.,
and FIREMAN’S FUND INSURANCE CO.,
as subrogee of FREDERIC A.
BOURKE, JR.,
Plaintiffs,
v.
MAN ENGINES & COMPONENTS, INC.,
Defendant.
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CASE NO. 3:14cv843(DFM)
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiffs, Frederic A. Bourke, Jr. (“Bourke”) and
Fireman’s Fund Insurance Company (“Fireman’s Fund”), as subrogee
of Bourke, bring this diversity action against defendant MAN
Engines & Components, Inc. (“MAN”) alleging that defendant
breached express and implied warranties in connection with two
diesel marine engines that defendant sold to Bourke.
Pending
before the court is defendant’s motion for summary judgment
against sole remaining plaintiff Fireman’s Fund. (Doc. #97.)1
For the reasons set forth below, the motion is GRANTED. 2
1
Defendant initially filed its motion for summary judgment
against both Bourke and Fireman’s Fund, but after reaching a
settlement with Bourke, it withdrew its motion for summary
judgment against Bourke (doc. #109), and Bourke and MAN entered
a stipulation of dismissal, which the court granted. (Doc. #116
and #117).
2 On January 29, 2015, the parties consented to the
jurisdiction of a magistrate judge. (Doc. #39; see 28 U.S.C. §
636(c); Fed.R.Civ.P. 73(b)).
I.
Factual Background
The following facts, drawn from the parties’ Local Rule
56(a) statements and exhibits, are undisputed.
MAN distributes and sells diesel marine engines designed
and manufactured by MAN Truck and BUS, AG. (Defendant’s Local
Rule 56(a)(1) Statement (“Def. SOF”), Doc. #102, ¶ 4;
Plaintiff’s Local Rule 56(a)(2) Statement (“Pl. SOF”), Doc.
#105, ¶ 4.)
MAN sold two MAN Truck and BUS, AG diesel marine
engines (the “engines”) to Bourke for installation on Bourke’s
motor yacht, MV Midnight. (Def. SOF ¶ 6; Pl. SOF ¶ 6.)
Each of
the engines has a component part called an intercooler. (Def.
SOF ¶¶ 8-8; Pl. SOF ¶¶ 8-9.) The intercoolers cool the hot
charge air coming from Turbo chargers of the engines by using
sea water from the ocean, which circulates through the web of
tubes in the intercoolers.
11.)
(Def. SOF ¶¶ 10-11; Pl. SOF ¶¶ 10-
The cooled air then circulates into the engine where it is
compressed and injected by diesel fuel. (Def. SOF ¶ 12; Pl. SOF
¶ 12.)
Although the date of purchase is unclear,3 the parties agree
that the Limited Warranty for New Common Rail Marine Diesel
3
The parties indicate that the engines were either
purchased or first put into use on April 3, 2009. (Def. SOF ¶ 7;
Pl. SOF ¶ 7.)
2
Engines (the “Limited Warranty”) went into effect on April 3,
2009 and expired on April 3, 2011. (Def. SOF ¶¶ 15-17; Pl. SOF
¶¶ 15-17.) The Extended Service Protection Warranty (the
“Extended Service Contract”) went into effect on July 8, 2009.
(Def. SOF ¶ 21; Pl. SOF ¶ 21.) Pursuant to the Extended Service
Contract, the extended warranty expired “on April 3, 2014 or
2500 hours, whichever comes first.” (Def. SOF ¶ 21; Pl. SOF ¶
21.)
On September 16, 2012, after the expiration of the Limited
Warranty, but before the Extended Service Contract expired, the
engines failed. (Def. SOF ¶ 27; Pl. SOF ¶ 27.) Plaintiff sought
repairs pursuant to the warranties.
MAN authorized certain
repairs which were performed by MAN-authorized service dealer
Casco Bay Diesel & Electric of Portland, Maine (“Casco Bay”).
(Def. SOF ¶ 28; Pl. SOF ¶ 28.) Casco Bay then performed
additional repairs, which defendant says were unauthorized and
plaintiff maintains were “implicitly authorized.”
(Def. SOF ¶
29; Pl. SOF ¶ 29.)
II.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
A “material” fact is a fact that influences the
case’s outcome under governing law.
3
Fed. R.
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986).
A “genuine” dispute is one
that a reasonable jury could resolve in favor of the non-movant.
Id.
The moving party bears the initial burden of establishing
that there are no genuine disputes as to any material fact.
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Once such a showing is made, the non-movant must show that there
is a genuine issue for trial.
Id.
The court may rely on
admissible evidence only, Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010), and must view the evidence in the record in the
light most favorable to the non-movant, drawing all reasonable
inferences in that party’s favor.
Weinstock, 224 F.3d at 41.
III. Discussion
Defendant MAN moves for summary judgment against subrogated
plaintiff Fireman’s Fund on its claims of breach of express
warranty (Count II) and breach of implied warranties (Count IV)
against MAN due to MAN’s alleged failure to reimburse Fireman’s
Fund for certain repairs to Bourke’s motor yacht. (Compl., Doc.
#1.)
Defendant MAN argues that the Connecticut Product
Liability Act, Conn. Gen. Stat. § 52-572m et seq. (“CPLA”) is
the exclusive remedy in Connecticut for plaintiff’s breach of
express and implied warranty claims. Defendant maintains that
plaintiff failed to plead, and cannot prove, the necessary
4
elements of the CPLA.
Therefore, defendant argues that it is
entitled to summary judgment. (Doc. #98 at 4-7, 12-15.)
Plaintiff does not respond at all to defendant’s argument
that the CPLA governs plaintiff’s claims and that plaintiff has
not pleaded the necessary elements of a breach of warranty claim
under the CPLA.
Instead, plaintiff states, without more, only
that the “complaint sounds in contract.”
(Doc. #104 at 2.)
The court agrees with defendant, as discussed below.
A. The Complaint is Governed by the CPLA.
Plaintiff pleaded two counts against MAN: breach of
express warranty and breach of implied warranty (Compl., Counts
II,
IV).
By its terms, the CPLA governs these claims.
Conn.
Gen. Stat. § 52-572m(b)defines a product liability claim as
follows:
“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 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) (emphasis added).
See, e.g.,
Mountain W. Helicopter, LLC v. Kaman Aerospace Corp., 310 F.
5
Supp. 2d 459, 463 (D. Conn. 2004) (in which the court held that
“causes of action brought pursuant to CUTPA, strict liability,
negligence, breach of warranty, and misrepresentation complaint
are governed by the Connecticut Product Liability Act
(‘CPLA’)”).
It is well-settled that the CPLA is the exclusive remedy
for plaintiff’s claims of breach of warranty.
The CPLA
provides: “A product liability claim as provided [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.” Conn.
Gen. Stat. § 52–572n(a)(emphasis supplied).
According to the Connecticut [S]upreme [C]ourt, this
statutory language, generally referred to as the
exclusivity provision, makes the CPLA the exclusive means
by which a party may secure a remedy for an injury caused
by a defective product. In other words, the legislature
clearly intended to make our products liability act an
exclusive remedy for claims falling within its scope.
Mountain West Helicopter, LLC v. Kaman Aerospace Corp., 310 F.
Supp. 2d at 463 (citations and internal quotation marks
omitted)(emphasis in original). “Thus, a plaintiff may not
assert a cause of action against the seller of a product for
harm caused by the product except within the framework of the
CPLA.” LaMontagne v. E.I. Du Pont De Nemours & Co., Inc., 41
6
F.3d 846, 855 (2d Cir. 1994)(citing Daily v. New Britain Machine
Co., 200 Conn. 562, 571-72, 512 A.2d 893, 899 (1986)).
“Although the CPLA provides the exclusive remedy for
product liability claims, it was not meant to alter the
substance of a plaintiff's rights and it does not preempt all
common law theories of product liability; rather, the CPLA bars
separate common law causes of action in product liability
cases.” Fraser v. Wyeth, Inc., 857 F. Supp.2d 244, 252 (D. Conn.
2012).
“‘A plaintiff bringing a cause of action under the CPLA
therefore retains the right to allege traditional theories of
recovery under one unified CPLA claim’ like breach of express
and implied warranty.” Kuzmech v. Werner Ladder Co., No.
3:10CV266 (VLB), 2012 WL 6093898, at *12 (D. Conn. Dec. 7,
2012)(quoting Fraser v. Wyeth, 857 F. Supp. at 252). Therefore,
although plaintiff pleaded its breach of warranty claims as
separate counts, the court treats plaintiff’s claims as a single
cause of action under the CPLA with multiple theories. Id.
B. MAN is a Product Seller Under the CPLA.
Initially, the court must determine whether defendant is a
product seller under the CPLA. “Whether [a] defendant is a
‘product seller’ is a question of law for the court to decide.”
Svege v. Mercedes-Benz Credit Corp., 329 F. Supp. 2d 272, 278
7
(D. Conn. 2004) (citations and internal quotation marks
omitted).
The CPLA provides that:
“Product seller” means 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.
Conn. Gen. Stat. § 52-572m(a).
Although plaintiff now asserts that MAN is not a product
seller within the meaning of the CPLA ( Pl. SOF ¶ 5),
plaintiff
pleaded in the complaint that defendant MAN “was engaged, inter
alia, in the business of designing, manufacturing, selling,
servicing, maintaining and repairing marine engines.”
(Compl. ¶
3.) In its Local Rule 56(a)(1) Statement, defendant MAN asserts:
An entity which is separate from MAN, but with which MAN is
affiliated, MAN Truck and BUS, AG (“MAN Germany”) designs
and manufactures diesel marine engines. MAN was engaged in
the business of distributing and selling MAN Germany
designed and manufactured diesel marine engines at all
times relevant to this matter.
(Def. SOF ¶¶ 3-4.) In its Local Rule 56(a)(2) Statement,
Plaintiff admitted this fact. (Pl. SOF ¶¶ 3-4.) There is no
genuine of issue of fact.
As a matter of law, defendant MAN is
a “product seller” under Conn. Gen Stat. § 51-572m(a).4
4
In its Local Rule 56 (a)(1) Statement, MAN also asserts
that it is a “product seller” under Conn. Gen Stat. § 51572m(a). (Def. SOF ¶ 5.) Plaintiff denies this statement
8
C. Proof of a Defect Is an Essential Element of Breach of
Warranty Claims Under The CPLA and Plaintiff Has Failed
to Introduce Any Admissible Evidence to Prove That The
Intercoolers Were Defective.
Defendant argues that proof of a defect is a necessary
element of all claims under the CPLA and that plaintiff has
failed to prove a defect.
Plaintiff disagrees, and as discussed
below, belatedly attempts to create an issue of fact as to
whether the product was defective.
In any products liability action, under any theory of
liability, “the plaintiff must plead and prove that the product
was defective and that the defect was the proximate cause of the
plaintiff's injuries.” Haesche v. Kissner, 229 Conn. 213, 218
(1994) (citation and internal quotation marks omitted). See,
e.g., Merrimack Mut. Fire Ins. Co. v. Watkins Mfg. Co., No.
without explanation, stating only “Denied. MAN is not a
‘product seller’ under Conn. Gen. Stat. § 51-572m(a).” (Pl. SOF
¶ 5.) Plaintiff’s denial is immaterial because the issue of
whether MAN is a product seller is a question of law for the
court to decide based on the facts. (See discussion above.)
Furthermore, plaintiff’s denial is ineffective, as plaintiff
failed to cite an affidavit or other admissible evidence in
support of its denial, and thus it is deemed admitted. See
D.Conn.L.Civ.R. 56(a)(3). “When a party fails to appropriately
deny material facts set forth in the movant's Rule 56(a)(1)
statement, those facts are deemed admitted.” Buell v. Hughes,
568 F. Supp. 2d 235, 237 (D. Conn. 2008) (citing SEC v. Global
Telecom Servs. L.L.C., 325 F.Supp.2d 94, 109 (D. Conn. 2004).
9
3:13CV123 (JBA), 2015 WL 3397844, at *6 (D. Conn. Sept. 23,
2015)(denying summary judgment and finding plaintiff’s claims
“fail as a matter of law” where “the experts designated by [the
plaintiff] have not disclosed opinions sufficient to satisfy
plaintiff's burden of proving a design defect.”); Kuzmech v.
Werner Ladder Co., 2012 WL 6093898, at *13 (holding with regard
to a claim involving a woman’s fall from a ladder, that
“[b]ecause Plaintiffs have failed to create a genuine issue of
material fact in dispute as to the ladder's defects, they
likewise cannot create a genuine issue of material fact in
dispute as to either their breach of express or implied warranty
claims”).
“A product may be defective due to a flaw in the
manufacturing process, a design defect or because of inadequate
warnings or instructions.”
Vitanza v. Upjohn Co., 257 Conn.
365, 373 (2001).
Within the strict liability rubric, Connecticut recognizes
a trifecta of product defects: (1) manufacturing defects;
(2) design defects; and (3) warnings defects. Generally
speaking, a manufacturing defect is a mistake in the
assembly process, which results in a product that differs
from the manufacturer's intended result. A design defect,
in contrast, exists when the product is otherwise properly
manufactured, but is nonetheless unreasonably dangerous
because its attributes can cause unexpected injury. A
product is defectively designed if: (1) it failed to
perform as safely as an ordinary consumer would expect when
used in a reasonably foreseeable manner (the “ordinary
consumer expectations” test); or (2) in the case of complex
10
products, the risk of danger inherent in the design of the
product outweighs its utility (the “modified consumer
expectations” test. Lastly, a warning defect exists when a
product is unreasonably dangerous because it lacks adequate
warnings or instructions concerning the product's dangerous
propensities. In such cases, the failure to warn itself
makes the product defective.
Moss v. Wyeth Inc., 872 F. Supp. 2d 162, 166 (D. Conn.
2012)(citations omitted).
Connecticut courts have held that:
Although it is true that an ordinary consumer may, under
certain circumstances, be able to form expectations as to
the safety of a product; we nonetheless consistently have
held that “expert testimony is required when the question
involved goes beyond the field of the ordinary knowledge
and experience of judges or jurors.”
White v. Mazda Motor of Am., Inc., 139 Conn. App. 39, 49 (2012),
aff'd, 313 Conn. 610 (2014) (citations omitted)(affirming trial
court’s grant of summary judgment in dealership’s and
manufacturer’s favor where plaintiff automobile owner’s sole
expert could not provide an opinion that the vehicle was
defective); see also Metropolitan Property & Casualty Ins. Co.
v. Deere & Co., 302 Conn. 123, 141 (2011)(citation omitted)
(holding that “[i]f lay witnesses and common experience are not
sufficient to remove [a] case from the realm of speculation, the
plaintiff will need to present expert testimony to establish a
prima facie case”).
In White, the plaintiff was injured in an automobile fire.
His sole expert “only offered an opinion as to how the fire in
11
the vehicle may have started. He did not offer an opinion that
the vehicle was defectively designed or manufactured.”
White v.
Mazda Motor of Am., Inc., 139 Conn. App. at 49–50. Further,
plaintiff’s expert “specifically testified that he is not an
expert in automobile mechanics, automobile electronics, the
design or manufacture of any automobile components related to
fuel line designs of automobiles or the manufacture of
automobiles.”
Id.
The appellate court concluded that “in
addition to the expert’s opinion on causation,
the plaintiff was required to provide the opinion of
another expert that established sufficient prima facie
evidence of the contested product liability issues in the
case, e.g., that the vehicle was in a defective condition
unreasonably dangerous to the consumer or user, that the
defect or defects caused the injury for which compensation
was sought, that the defect or defects existed at the time
of the sale and that the vehicle after its manufacture was
expected to and did reach the consumer without any
substantial change in its condition.
Id. at 50–51.
The Appellate Court found that the plaintiff had
failed to do so, and affirmed the trial court’s grant of summary
judgment in favor of the defendants.
Id. at 51.
In this case, as in White v. Mazda Motor, the questions at
issue regarding the failure of the marine engines, “present
complex questions outside of the ordinary knowledge and
experience of jurors,” (White v. Mazda Motor, 139 Conn. App. at
49) and as such, expert testimony is required to establish that
12
the intercoolers were defective.
Defendant argues that
plaintiff’s experts fail to do so, and the court agrees.
Here, plaintiff alleges that the engines failed, allowing
seawater to infiltrate the engines (Compl., Doc. # 1, ¶¶ 11-12),
and it asserts in its response to the summary judgment motion
that “the only plausible explanation for the premature failure
of the intercoolers is that they were somehow defective.”
#104 at 3.)
(Doc.
To the contrary, however, plaintiff’s experts,
testified at their depositions that they could not say that the
intercoolers were defective.
Specifically, plaintiff’s expert
Jon C. Bardo testified:
Q. And so you’re not going to testify as to whether or not
the failure was caused by, for example, a defect in the
design of the engine—of the intercooler; correct?
A. I believe that’s out of my – out of my league.
Q. Okay. And you’re not going to testify as to whether or
not the crack was caused by some sort of defect in the
manufacturing process; correct?
A.
Correct.
(Affidavit of James E. Regan (“Regan Aff.”), Def. Ex. H, Doc.
#101-8, Bardo Dep. at 20-21. See also Def. SOF. at ¶¶ 34-35.)
Likewise, plaintiff’s second expert, Edwin M. Davis, did not
provide any opinion as to whether the intercoolers were
defective:
Q. No. 1, based on review of your report, it’s my
understanding that you are going to testify today that the
intercoolers cracked and, therefore, caused damage to the
engines. Is that fair?
13
A. That is what we concluded from our investigation.
Q. Okay. And you will testify today if asked regarding the
testing that was done to determine, in fact, that there was
- - that there were cracks in the two intercoolers;
correct?
A. Yes.
Q. What you’re not able to testify to today is what was
the actual cause of the crack in the intercoolers; correct?
A. That is correct.
Q. You will not testify to today whether the intercoolers
themselves are covered by any warranties; correct?
A. I don’t know anything about that.
Q. All right. And you similarly don’t know whether or not
any work done that was done following the crack and failure
of the intercoolers - - you’re not going to testify as to
whether any of that work was covered by a warranty;
correct?
A. That’s correct.
Q. You are not able to testify as to whether or not the
intercoolers were defective; correct?
A. That’s correct.
Q. You will not testify as to whether or not the
intercoolers were defectively designed; correct?
A. Right.
Q. You will not testify as to whether the intercoolers
were subject to a manufacturing defect; correct?
A. Correct.
(Regan Aff., Def. Ex. G, Doc. #101-7, Davis Dep. at 19-20. See
also Def. SOF. at ¶¶ 36-38.)
In its response to defendant’s summary judgment motion, in
an apparent effort to create a material issue of fact, plaintiff
submitted a new affidavit from Mr. Bardo.
(Doc. #106, ex. 4.)
This affidavit directly contradicts his deposition testimony. In
particular, Mr. Bardo states:
Although I am not able to identify the specific defect in
the intercoolers that caused the closed tubes to crack, or
determine whether the defect occurred as a result of how
14
the intercoolers were built or designed, I am able to
state, within a reasonable degree of certainty, that there
is no other plausible explanation for the intercoolers’
closed tubes to crack in less than four (4) years of use
with less than 1000 hours of running time other than from
an unidentified defect of some kind.
(Doc. #106, ex. 4, ¶ 16.)(Emphasis added.)
An affidavit like
this one, submitted to create a “sham issue of fact” is
inadmissible.
“The Second Circuit follows the rule that a party may not
create an issue of fact by submitting an affidavit in
opposition to a summary judgment motion that, by omission
or addition, contradicts the affiant's previous deposition
testimony.” Ferraresso v. Town of Granby, 646 F.Supp.2d
296, 301 (D. Conn. 2009) (citations and internal quotation
marks omitted); see also Mack v. United States, 814 F.2d
120, 124 (2d Cir. 1987) (“It is well settled in this
circuit that a party's affidavit which contradicts his own
prior deposition testimony should be disregarded on a
motion for summary judgment.”).
Larobina v. Wells Fargo Bank, N.A., No. 3:10CV01279 (MPS), 2014
WL 3419534, at *2, aff'd, 632 Fed. Appx. 55 (2d Cir.
2016)(refusing to consider portions of an affidavit directly
contradicting a plaintiff’s prior deposition testimony regarding
out of pocket medical costs).
See also, In re Fosamax Products
Liab. Litig., 707 F.3d 189, 193–94 (2d Cir. 2013)(holding that
the District Court was entitled to disregard an expert witness’
new affidavit testimony based on the “sham issue of fact”
doctrine, which prohibits a party from defeating summary
15
judgment simply by submitting an affidavit that contradicts the
party's previous sworn testimony).
As the Second Circuit has recognized:
If a party who has been examined at length on deposition
could raise an issue of fact simply by submitting an
affidavit contradicting his own prior testimony, this would
greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact.
Mack v. United States, 814 F.2d 120, 124–25 (2d Cir.
1987)(quoting Perma Research and Development Co. v. Singer Co.,
410 F.2d 572, 578 (2d Cir. 1969)).
This doctrine applies
equally to fact and expert witnesses:
Although we have typically applied the sham issue of fact
doctrine where a party submits an affidavit that
contradicts the party's own prior statements, it may also
apply when a party attempts to use evidence from an expert
witness to defeat summary judgment. See AEP Energy Servs.
Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 736 (2d
Cir.2010) (holding that plaintiffs' expert report that
contradicted plaintiffs' prior representations was
insufficient to defeat motion for summary judgment).
In re Fosamax Products Liab. Litig., 707 F.3d at 193–94.
In sum, plaintiff has not introduced any competent expert
testimony that the intercoolers were defective,5 as it must, and
5
Although plaintiff did not discuss the “malfunction
doctrine,” this court notes that:
“Under the malfunction doctrine, a plaintiff may establish
a prima facie case of product defect by proving that the
product failed in normal use under circumstances suggesting
a product defect. Put otherwise, a product defect may be
inferred by circumstantial evidence that (1) the product
16
therefore, cannot meet the essential requirements of a claim
under the CPLA. See Haesche v. Kissner, 229 Conn. at 218; White
v. Mazda Motor, 139 Conn. App. at 46; Merrimack Mut. Fire Ins.
Co., 2015 WL 3397844 at *6.
On this record, there is no genuine issue of material fact
and MAN is entitled to summary judgment on all counts of the
complaint.6
malfunctioned, (2) the malfunction occurred during proper
use, and (3) the product had not been altered or misused in
a manner that probably caused the malfunction. The
malfunction doctrine may be described less formally as
providing that a plaintiff need not establish that a
specific defect caused an accident if circumstantial
evidence permits an inference that the product, in one way
or another, probably was defective. . . . Although the
malfunction doctrine may come to a plaintiff's rescue when
circumstances fairly suggest the responsibility of a
product defect, it is hornbook law that proof of a product
accident alone proves neither defectiveness nor causation.
Nor does further proof that the accident was caused by a
malfunction suffice to prove these elements. The crucial
additional showing required of a plaintiff in a malfunction
case is the negation of causes for the malfunction other
than a product defect.”
Fallon v. The Matworks, 50 Conn. Supp. 207, 217–18 (Super. Ct.
2007) (quoting D. Owen, “Manufacturing Defects,” 53 South
Carolina L.Rev. 851, 871–74 (2002)). Even were this court to
consider Mr. Bardo’s subsequent affidavit, plaintiff could not
prove the requirements of the malfunction doctrine, as Mr.
Bardo’s subsequent affidavit does not negate any other possible
causes for the malfunction other than a defect.
6In light of this conclusion, the court need not address
plaintiff’s arguments regarding breach of contract, in
particular plaintiff’s claim that the text of the Extended
Service Warranty and the Limited Warranty are ambiguous.
Suffice to say, however, that this court does not agree. The
17
IV.
Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment (doc. #97) is GRANTED.
SO ORDERED at Hartford, Connecticut this 28th day of March,
2018.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge
Extended Service Warranty and the Limited Warranty, by their
terms, do not include the intercoolers. (See Regan Aff., Ex. C.,
Doc. #101-3 and Ex. E, Doc. #101-5.)
18
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