In two recent decisions—Mazzaia v. A.O. Smith Corp., No. CV-11-5029478 (Conn. Super. Ct. Nov. 26, 2012) and Selvidio v. Alfa Laval, Inc., No. CV-11-6017088 (Conn. Super. Ct. Nov. 26, 2012)—the Connecticut Superior Court granted summary judgment to a general contractor on a plaintiff’s asbestos product liability claims. Given that the court has very rarely granted summary judgment in recent asbestos cases, these decisions represent a sign of hope for defendants facing strict liability despite having neither manufactured nor sold asbestos-containing products.
In Connecticut, claims for personal injuries caused by a defectively manufactured or designed product are governed by the Connecticut Product Liability Act (“CPLA”), Conn. Gen. Stat. § 52-572m et seq., which represents the exclusive remedy for such claims brought against product manufacturers and sellers. See Conn. Gen. Stat. §52-572n; Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471 (1989). To maintain a product liability claim under the CPLA, a plaintiff must show that the defendant “was engaged in the business of selling the product” and that the transaction involved the sale of a “product,” rather than a “service.” Zichichi v. Middlesex Mem’l Hosp., 204 Conn. 399, 403 (1987); see also Paul v. McPhee Elec. Contractors, 46 Conn. App. 18, 23 (1997) (holding defendant was not a product seller under CPLA where it merely installed the products at issue). Where a contract is “basically one for the rendition of services, and the materials are only incidental to the main purpose of the agreement, the contract is not one for the sale of goods.” Ferguson v. EBI Med. Sys., 15 Conn. L. Rptr. 94, 1995 WL 462438, at *5 (Conn. Super. Ct. Aug. 1, 1995); Gulash v. Stylarama, Inc., 364 A.2d 1221, 1223 (Conn. Ct. Com. Pl. 1975).
The plaintiffs in Mazzaia and Selvidio claimed that the decedents developed mesothelioma due to asbestos exposure from their work at Pfizer Corp. in Groton, Connecticut during the 1960s and 1970s. The plaintiffs brought claims against numerous defendants, including Skanska USA Building, Inc., as successor to Barney Construction (“Skanska”), a general contractor that performed construction, maintenance, and repair services at the Pfizer facility during this time. Skanska moved for summary judgment on the ground that its predecessor, W.J. Barney, was a service provider, rather than a product seller that would be subject to the Connecticut Product Liability Act. Pointing to contracts and affidavits of its corporate officers, Skanska argued that it was never a product seller and that it was merely involved in building, maintenance, and general services at the Pfizer facility.
The plaintiffs in both cases argued that W.J. Barney was involved in the distribution, contracting, procurement, and installation of asbestos-containing products at the Pfizer facility, referencing construction plans and invoices for sales of asbestos-containing products. The court, however, found that the invoices merely indicated that the products were sold or shipped to W.J. Barney, and that the construction plans simply contained instructions regarding various product installations. The court concluded that while W.J. Barney was involved in construction, maintenance, and repairs at Pfizer, there was insufficient evidence showing a “nexus between the defendant and the products” at issue to “classify the defendant as a ‘product seller.’” Mazzaia, at *10; Selvidio, at *11.
The court relied upon In Re Bridgeport Asbestos Litigation, 22 Conn. L. Rptr. 391, 1998 WL 376024 (Conn. Super. Ct. June 24, 1998), which addressed the question of whether a “hybrid sales-service transaction” fell under the CPLA, noting that the statute itself provides no “clear guidance” on this issue. See Mazzaia, at *7; Selvidio, at *8. In that case, an asbestos insulation contractor’s motion for summary judgment was denied where the cost of the insulating material was included in its bids, contract prices, and the payments it received under those contracts. See In Re Bridgeport Asbestos Litig., 1998 WL 376024, at *1. Distinguishing this case, the Mazzaia and Selvidio courts noted that the asbestos-containing materials purchased were billed directly to Pfizer, Pfizer retained control over the materials, and Pfizer occasionally directed the resale of surplus materials back to suppliers, which were then credited back to Pfizer’s account. Mazzaia, at *9; Selvidio, at *9.
The court found Mazzaia and Selvidio more closely analogous to South United Methodist Church v. Joseph Gnazzo Co., Inc., 53 Conn. L. Rptr. 182, 2011 WL 7029779 (Conn. Super. Ct. Dec. 23, 2011), where the court held that a contractor that merely installed stone facades on a church could not be held liable as a product seller, emphasizing that “there must be a greater nexus between a contractor and a product than the mere fact that the contractor obtained and used the product during construction.” Id. The court, therefore, granted summary judgment on the plaintiffs’ product liability claims, but allowed the negligence claims to survive.
The issue of whether a transaction involves a service or the sale of a product has become increasingly common in the courts lately. The court granted summary judgment on the more problematic strict liability claims in Mazzaia and Selvidio because the transactions involved a service, but allowed the plaintiffs’ negligence claims to proceed. Strict product liability is generally the preferred theory of liability for plaintiffs, since it “relieves [them] of proving specific acts of negligence” and protects them from some defenses available to negligence claims, such as notice, disclaimer, and lack of privity. Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 210-11 (1997). Strict product liability “allows the plaintiff to establish instead the defective condition of the product as the principal basis of liability.” Id. at 211.
While motions for summary judgment have been denied in the vast majority of recent Connecticut asbestos cases, we are hopeful that the Mazzaia and Selvidio decisions reflect a willingness to grant such motions where the facts and the law clearly favor the defendant.