United States District Court, D. Connecticut
FREDERIC A. BOURKE, JR., and FIREMAN'S FUND INSURANCE CO., as subrogee of FREDERIC A. BOURKE, JR., Plaintiffs,
MAN ENGINES & COMPONENTS, INC., Defendant.
RULING ON DEFENDANT'S MOTION FOR SUMMARY
F. Martinez, United States Magistrate Judge.
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.)For the reasons set forth below, the motion
following facts, drawn from the parties' Local Rule 56(a)
statements and exhibits, are undisputed.
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. (Def. SOF ¶¶ 10-11; Pl. SOF
¶¶ 10-11.) The cooled air then circulates into the
engine where it is compressed and injected by diesel fuel.
(Def. SOF ¶ 12; Pl. SOF ¶ 12.)
the date of purchase is unclear,  the parties agree that the
Limited Warranty for New Common Rail Marine Diesel 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.)
Summary Judgment Standard
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.”
Fed.R.Civ.P. 56(a). A “material” fact is a fact
that influences the case's outcome under governing law.
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.
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
elements of the CPLA. Therefore, defendant argues that it is
entitled to summary judgment. (Doc. #98 at 4-7, 12-15.)
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.)
court agrees with defendant, as discussed below.
The Complaint is Governed by the CPLA.
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
“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.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')”).
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. §
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 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)).
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.
MAN is a Product Seller Under the CPLA.
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 (D. Conn. 2004) (citations
and internal quotation marks omitted). The CPLA provides
“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).
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 ...