Superior Court of Connecticut, Judicial District of Hartford, Hartford
BRODIE & STONE PLC
MEMORANDUM OF DECISION
Brodie & Stone PLC and Brodie & Stone International
PLC (" B& S) have moved for summary judgment to
dismiss the Second and Third Counts of the Complaint of
plaintiff Jolen, Inc. (" Jolen").
parties agreed that the Fourth Count alleging violation of
the Connecticut Unfair Trade Practices Act ("
CUTPA"), C.G.S. § 42-110a et seq., must be
dismissed in light of the Supreme Court's recent decision
in Western Dermatology Associates, P.C. v. Vitalworks,
Inc., 322 Conn. 541, 153 A.3d 574 (2016), on the lack of
extraterritorial application of CUTPA.
motion to dismiss the Second Count alleging breach of
fiduciary duty requires examination of the relationship
between the parties to determine whether defendants are
plaintiff's agents and thus owed heightened duties as a
fiduciary to protect plaintiff's interests in the
commercial transactions at issue. For the reasons stated
below, the motion for summary judgment on the Second Count is
Standards for Deciding a Motion for Summary Judgment
The standards ... [for] review of a ... motion for summary
judgment are well established. Practice Book [§ 17-49]
provides that summary judgment shall be rendered forthwith if
the pleadings, affidavits and any other proof submitted show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.... In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable to
the nonmoving party.... The party seeking summary judgment
has the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles of
substantive law, entitle him to a judgment as a matter of law
... and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of a
genuine issue of material fact.... A material fact ... [is] a
fact which will make a difference in the result of the
case...." DiPietro v. Farmington Sports Arena,
LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting
H.O.R.S.E. of Connecticut, Inc. v. Washington, 258
Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
Did Not Owe Fiduciary Duties to Plaintiff.
argues that defendants, as their distribution agents, owed
Jolen fiduciary duties of an agent to its principal, which
Judge, now Chief Justice, Rogers noted includes the
obligation " to exercise the utmost good faith, loyalty
and honesty toward his principal...." News America
Marketing In-store, Inc. v. Marquis, 2003 WL 22904123 *5
(Conn. Super. 2003).
three-prong test for establishing agency was set forth by the
Supreme Court in Botticello v. Stefanovicz, 177
Conn. 22, 25, 411 A.2d 16 (1979), and reaffirmed in
Beckenstein v. Potter & Carrier, Inc., 191 Conn.
120, 132-34, 464 A.2d 6(1983):
'" Agency is defined as 'the fiduciary
relationship which results from manifestation of consent by
one person to another that the other shall act on his behalf
and subject to his control, and consent by the other so to
act ....' Restatement (Second), 1 Agency § 1.'
.... Thus, the three elements required to show the existence
of an agency relationship include: (1) a manifestation by the
principal that the agent will act for him; (2) acceptance by
the agent of the undertaking; and (3) an understanding
between the parties that the principal will be in control of
the undertaking. Restatement (Second), 1 Agency § 1,
comment b (1958).' .... The existence of an agency
relationship is a question of fact.... Some of the factors
listed by the Second Restatement of Agency in assessing
whether such a relationship exists include: whether the
alleged principal has the right to direct and control the
work of the agent; whether the agent is engaged in a distinct
occupation; whether the principal or the agent supplies the
" instrumentalities, tools, and the place of work";
and the method of paying the agent. See Restatement (Second)
1 Agency § § 14, 220.... In addition, '[a]n
essential ingredient of agency is that the agent is doing
something at the behest and for the benefit of the
principal' ... Finally, the labels used by the parties in
referring to their relationship are not determinative;
rather, a court must look to the 'operative terms' of
their agreement or understanding." 191 Conn, at 132-34
of the operative agreement, " interpreted as a whole,
with all relevant provisions interpreted together",
Beckenstein, 191 Conn, at 134, demonstrates that
B& S was Jolen's agent for the distribution of
Jolen's products to customers in the markets in which
B& S is the exclusive distributer. However, a
contractual duty to act as distributer of a
manufacturer's product does not necessarily impose
fiduciary duties on a distributer to the manufacturer. See
International Connectors Industries, Ltd. v. Lytton
Systems, Inc., 1995 WL 253089 *6 (D. Conn. 1995) (
Cabranes, J. ) (Conn, law). Other courts have
concluded under the law of other states that the relationship
between a manufacturer and distributer is not a fiduciary
relationship. See Samsung Elecs. Am., Inc. v. Yang Kun
Chung, 2017 WL 635031 *11 (N.D. Tex. 2017) (Tex. law);
Alsa Corp. v. PPG Industries, Inc., 19 F.Supp.3d
335, 2014 WL 1921152 *10 (D. Mass. 2014) (R.I. law);
Infinite Machines, LLC v. Hasbro, Inc., 2009 WL
2253212 *13-14 (D. Conn. 2009) (Pa. law); 
Fitzpatrick v. Teleflex, Inc., 763 F.Supp.2d 224,
231 (D. Me. 2011) (Me. law). Accord, Ergowerx
Intern'l, LLC v. Maxell Corp. of Am, 18 F.Supp.3d
430, 452 (S.D.N.Y. 2014) (N.J. law).
a party is held to be a fiduciary presents a question of law
based on the particular facts of the case: " The fact
driven nature of a question of law does not, however,
transform it into a question of fact.... '[d]uty is a
legal conclusion about relationships between individuals'
that is 'determined by the circumstances surrounding the
conduct of the individual' ...)." Iacurci v.
Sax, 313 Conn. 786, 800, 99 A.3d 1145 (2014).
argues that as its distribution agent B& S was per
se a fiduciary of Jolen, citing primarily Iacurci v.
Sax, 313 Conn. at 800 and Konover Development Corp.
v. Zeller, 228 Conn. 206, 232, 635 A.2d 798(1994).
Iacurci, 313 Conn., at 800, the Supreme Court
discussed how to ...