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Bourke v. Man Engines & Components, Inc

United States District Court, D. Connecticut

March 28, 2018

FREDERIC A. BOURKE, JR., and FIREMAN'S FUND INSURANCE CO., as subrogee of FREDERIC A. BOURKE, JR., Plaintiffs,
v.
MAN ENGINES & COMPONENTS, INC., Defendant.

          RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Donna F. Martinez, United States Magistrate Judge.

         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]

         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. (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.)

         Although the date of purchase is unclear, [3] 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.)

         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.” 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.

         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 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.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 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 (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 ...

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