Connecticut created a unitary form of product liability action by statute in 1979. A central principle of Connecticut's Products Liability Act ("PLA") is that "A products liability claim . . . shall be in lieu of all other claims against product sellers . . . for harm caused by a product." Nevertheless, courts and litigants have struggled with the meaning of this exclusivity provision of the PLA.
The Connecticut Supreme Court addressed the meaning and application of the exclusivity provision twice during the 1980's. In 1987, and then, conclusively, in 1989, the Supreme Court resolved that the PLA precludes common law claims for harm caused by a product, including claims of strict liability, negligence, and breach of warranty. The Connecticut Supreme Court has never had occasion, however, specifically to consider whether the exclusivity provision of the PLA also bars statutory claims, such as those under the Connecticut Unfair Trade Practices Act ("CUTPA"). Indeed, no appellate court has ever addressed the application of the PLA exclusivity provision to claims brought under CUTPA. Nevertheless, Connecticut's trial courts -- both state and federal -- have wrestled with this issue on many occasions over the last decade and appear to be reaching consensus.
This article will discuss the development of judicial opinion on this issue, including the evolution of the "functional equivalence test" as it has emerged in the trial courts. This article will also describe the application of the functional equivalence test.
Supreme Court Decisions In 1986, in Daily v. New Britain Machine Company, the Connecticut Supreme Court addressed for the first time the exclusivity provision of the PLA, concluding that the PLA was intended to be an exclusive, statutory remedy. Mr. Daily, who had been injured on the job by an injection molding machine, sued the manufacturer of the equipment under the PLA. The trial court granted summary judgment against Daily on the basis of the PLA's ten year statute of repose because the manufacturer had sold the machine to the employer almost sixteen years earlier.
In the Supreme Court, Daily claimed that his complaint included common law theories of liability, barred neither by the PLA nor by its statute of repose. The Supreme Court disagreed, however, both because his complaint was fairly read only to include statutory claims and because common law claims were in any event barred by the PLA's exclusivity provision.
In 1989, the Connecticut Supreme Court was called upon, in Winslow v. Lewis-Shepard, Inc., to confirm the exclusivity of the PLA in a case involving only common law claims. Winslow, like Daily, was injured by a piece of machinery and sought to avoid the ten year statute of repose under the PLA relative to work place injuries. The court agreed to reconsider the issue addressed in Daily because it concluded that its earlier conclusion in Daily had been dictum. Daily had not actually included any claims in his complaint other than his statutory PLA claims. Unlike Daily, Winslow actually alleged common law causes of action for strict liability, negligence and breach of warranty.
Winslow confirmed that the PLA bars claims falling "within its scope." Nevertheless, the Court was not called upon to clarify the types of claims that come within the scope of the PLA. Indeed, the claims at issue in Winslow -- strict liability, negligence, and breach of warranty -- were the very sorts of claims the PLA explicitly identifies as falling within its scope. The dispute in Winslow concerned an alleged ambiguity in the prefatory language of the PLA, which states, "A products liability claim . . . may be asserted and shall be in lieu" of other claims. Thus, the sole issue in Winslow was whether that language -- with its apparent conflict between the permissive "may" and the mandatory "shall" -- revealed an intent to establish a preclusive effect at all. The court considered the legislative history of the statute to resolve this specific ambiguity and held that "[t]he legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope."
The Supreme Court has never had subsequent occasion to consider the preclusive effect of the PLA as applied to statutory causes of action, such as CUTPA claims. Indeed, only one Supreme Court case has even included claims for harm caused by a product under both the PLA and CUTPA. In Haesche v. Kissner, plaintiff, who was injured by a BB gun manufactured by one of the defendants, brought suit under the PLA and CUTPA. The trial court dismissed the case for failure to establish legal causation.
On appeal, the Supreme Court affirmed. It disposed of the PLA claim because plaintiff could not prove that he had suffered harm as a result of allegedly inadequate warnings. In reaching the same conclusion with respect to the CUTPA claim, the court held, "The plaintiff's claim, however, must fail because in order to prove a private cause of action under CUTPA, the plaintiff must show not only that [the seller] engaged in an unfair trade practice, but that he suffered harm as a result. . . . Section 42-110g(a) provides in relevant part that `[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action to recover actual damages . . . .'" Because the court had already held that plaintiff could not prove any harm "as a result of" the alleged PLA violation, it went on to hold that the failure to warn that allegedly constituted an unfair trade practice was not a cause of his injuries.
Trial Court Decisions
Unlike the appellate courts, the trial courts have had more than a score of occasions to address specifically the effect of the PLA exclusivity provision on CUTPA claims. Three lines of authority have emerged from the trial courts.
In 1987, the first reported cases to consider the preclusive effect of the PLA on CUTPA claims held that the PLA bars CUTPA claims, just as it bars common law claims. Soon thereafter, however, other decisions emerged, holding that CUTPA has a remedial purpose distinct from the goals of the PLA and, therefore, that CUTPA claims are not barred by the PLA. In the succeeding year, in a more nuanced decision, a so-called "functional equivalence test" emerged. Since that time, the functional equivalence test has been, by far, the most frequently applied method for resolving the propriety of CUTPA claims in products cases. Each of these three lines of cases is further described below.
The All-Or-Nothing Approach
Cases Holding the PLA Bars All Claims
In what became the first case with a published decision concerning the PLA's bar of CUTPA claims, Thomas Grieg brought suit against Koehring Construction Equipment Company and Arnold Company, Inc. in 1986, alleging that his decedent was injured by a product manufactured and distributed by the defendants. He alleged causes of action under both the PLA and CUTPA.
In 1987, shortly after the Supreme Court's decision in Daily, and quoting extensively from it, the Superior Court in Hartford struck Grieg's CUTPA counts as barred by the PLA. The court held:
The reasoning the Supreme Court used in Daily to preclude common-law actions being brought with a product liability action should also be used by this court to preclude further statutory claims being brought with product liability claims. Con. Gen. Stat. ' 52-572n(a) is clear on its face. The statute provides: "A product liability claim may be asserted and shall be in lieu of all other claims against product sellers."
Shortly thereafter, in Dinardo v. Coronaverden Atkiebo, relying on both Daily and Grieg, a second trial court struck a CUTPA claim as barred by the PLA. In Dinardo, the court noted that the plaintiff sought only to recover for personal injuries caused by an allegedly defective product. She claimed that the defendant's marketing of a defective product constituted an unfair trade practice. The court held that the plaintiff's exclusive remedy for harm caused by a product is a product liability claim.
These are the only two decisions to reach the conclusion that the PLA bars CUTPA claims that did not apply the functional equivalence test developed the following year.
Cases Holding the PLA Does Not BAR Any CUTPA Claims
Shortly after Grieg and Dinardo, the first decision going the other way appeared. In Collier v. Bridgehaven Truck Sales, Inc., the court correctly recognized, as the Supreme Court had stated in Daily, that the PLA only bars claims within its scope. Without citation to either Grieg or Dinardo, the court then held that the conclusions reached in Daily only applied to common law claims. Further, the court concluded -- without any discussion or explanation -- that a claim under CUTPA is not within the scope of the PLA.
The basis for the court's holding in Collier is unclear. Subsequent cases reaching the same conclusion suggest, however, that the court believed that the broad remedial purpose of CUTPA takes CUTPA claims outside the scope of the PLA. Indeed, that same year, Justice, then Judge, Berdon concluded that CUTPA claims are not within the scope of the PLA because the statutes have different purposes. In Morrissey v. Toyatomi America, Inc., with citation only to Daily, Judge Berdon held that a claim under CUTPA is not within the scope of the PLA because the PLA relates to damages arising out of a product, whereas CUTPA deals with unfair trade practices. Thus, unlike Grieg and Dinardo, which had focused on the nature of PLA claims, Morrissey relied on the special purpose of the CUTPA statute.
Several other cases decided between 1987 and 1991 reached the same result for substantially the same reasons as Morrissey. In the more than four years since September 1991, however, no court has rested its decision on this basis.
Functional Equivalence Test Cases
The functional equivalence test was first developed and applied in West Haven School District v. Owens-Corning Fiberglas Corp. In that case, Judge Nevas recognized that the exclusivity language of the PLA "accommodates any claim that is basically coextensive with a simultaneously-pled product liability claim." The court disagreed with the narrow view of the PLA apparently taken by the court in Collier, instead concluding that "the language of the PLA is explicitly non-exclusive . . . ." The court thus rejected the view that the PLA lacks sufficient scope to encompass a CUTPA claim.
Judge Nevas therefore established a functional test pursuant to which claims, including but not limited to CUTPA claims, "essentially identical--in wrongs asserted and in relief sought--with that being sought under the PLA" are deemed with the PLA's scope. Pursuant to this test, Judge Nevas struck two separate counts. First, he struck a common-law claim for fraudulent misrepresentation, concluding that the plaintiff's claim that the dangers of asbestos had been fraudulently concealed was simply "one facet" of the overall allegation, "well within the scope of the product liability claim." Then, turning to the CUTPA count, he struck that as well. Because the unfair trade acts complained of were simply the installation and maintenance of the asbestos product, the harm complained of in the CUTPA count was the same as the harm caused by the product (as alleged in the PLA count). Therefore, Judge Nevas concluded that the claim was fully actionable under the PLA. According to the court, the PLA claims and CUTPA claims were "functionally identical" and "coextensive" such that the CUTPA claim was within the PLA's scope and precluded by it.
Since Judge Nevas' seminal decision in West Haven School District, the vast majority of courts have applied the functional equivalence test to CUTPA claims in products cases. Indeed, in the last seven years, near consensus has been reached that the functional equivalence test controls such cases.
The Functional Equivalence Test Compared
The two cases discussed in Section II.A.1. above, which held simply that the PLA bars CUTPA claims, predated the functional equivalence test. Nevertheless, they are fully consistent with it. Because the CUTPA claims in both Grieg and Dinardo related to harm caused by a product, application of the functional equivalence test would have yielded the same result in those cases.
The functional equivalence test is plainly inconsistent, however, with the several statutory-purpose cases discussed above in Section II.A.2., which held that the PLA never bars CUTPA claims. Those cases focused on the divergent purposes of the CUTPA and PLA statutes, not on the functional equivalence of the particular claims before them.
Support for the Functional Equivalence Test
The functional equivalence test is faithful to the requirements both of the statute and of the leading Connecticut Supreme Court opinion on the preclusive effect of the PLA. Winslow held that the PLA is the exclusive remedy for claims "falling within its scope." The PLA, in turn, provides that it is the exclusive remedy "for harm caused by a product." The functional equivalence test provides a way to determine whether a claim nominally brought outside the PLA -- for example, under CUTPA -- is really for harm caused by a product and therefore within the PLA's scope.
Under the functional equivalence test, a claim will be barred if it is essentially identical "in wrongs asserted and in relief sought" with a PLA claim. Such a claim is "fully actionable" under the PLA. That is, the entire measure of compensatory damages for the alleged injury is recoverable, if at all, under the PLA.
Although Winslow certainly did not address the applicability of the PLA exclusivity provision to CUTPA claims, the functional equivalence test is more consistent with Winslow than the cases holding that the PLA never bars CUTPA claims. Winslow held that the PLA bars all "claims falling within its scope." Thus, the focus in Winslow was on the comparison of specific claims with the scope of the PLA. Focusing on the purpose of the CUTPA statute rather than on the nature of the CUTPA claim as compared with the scope of the PLA, as the small line of statutory-purpose cases discussed in Section II.A.2. has done, appears to mark a departure from Winslow. The functional equivalence test, on the other hand, has the same focus as Winslow; that is, pursuant to the test, claims functionally equivalent to claims brought under the PLA are barred.
Moreover, the functional equivalence test finds support in the language of the PLA statute that the statutory-purpose cases do not. The PLA provides that it "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." This language is crystal clear. The statutory-purpose cases, which exclude CUTPA claims from "all" claims, are inconsistent with the plain language of the statute.
It may be argued that the specific reference to three types of common law claims in the exclusivity provision of the PLA (strict liability, negligence, and breach of warranty) manifests an intent to limit the exclusivity provision to common law claims. Nevertheless, in addition to the use of the term "including," which suggests additional claims not specifically identified, the statute explicitly includes "all" claims. Moreover, the statute itself makes clear that it is not limited solely to the three common law products claims identified in the exclusivity provision. Additional claims coming within its scope are explicitly identified elsewhere in the PLA. In the definitions section of the statute, for example, the PLA states, "`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." Thus, the PLA specifically identifies claims relating to representations made by product sellers -- such as typically form the basis for a CUTPA claim in products cases -- as claims within the scope of the PLA (in addition to the negligence, strict liability, and warranty claims once again identified by name.) Moreover, the definition of "product liability claim" uses the language, "but is not limited to," highlighting the inclusivity of the causes of action identified in the definition.
Indeed, the statute further states that a "`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." Since representations made by product sellers necessarily take one of these forms, this language manifests an intent to apply to all claims regarding representations made by product sellers.
Further, because this language addresses forms of communication, not levels of culpability, it encompasses all forms of misrepresentation regardless of alleged mental state (i.e., intentional vs. negligent vs. innocent misrepresentation). Thus, the language is sufficiently broad to encompass the levels of culpability that might give rise to claims for unfair trade practices.
Of course, not all claims concerning products come within the scope of the PLA. Claims against non-product sellers, claims not involving personal injury, death, or property damage, and claims not related to harm caused by a product are outside the PLA's scope. The functional equivalence test, however, is faithful to the limitations of the PLA as well as its expansive provisions, since only claims that seek relief identical to that which could be achieved under the PLA are barred under the functional equivalence test.
Legislative History
Despite the clarity of the language of the statute, there is some support in the legislative history of the PLA for the proposition that the exclusivity provision does not bar CUTPA claims. Addressing the exclusivity provision of the PLA during debate of the bill, Senator DePiano commented:
Section 2 sets forth that the Bill is intended as a substitute for prior theories for harm caused by a product. This section is intended to cut down on the number of counts in a complaint for injuries caused by a product. It is not intended to affect other state statutory schemes such as anti-trust acts or the state unfair trade practices act.
Nevertheless, Senator DePiano's comments must be taken in their historical context. At the time Senator DePiano stated that the PLA was not intended to affect CUTPA claims, no reported case existed involving a CUTPA claim brought to redress harm caused by a product. At the time the PLA was enacted, CUTPA claims, like anti-trust claims, had only been brought for harm other than injuries caused by a product. Thus, the assertion in 1979 that the PLA exclusivity provision would have no effect on CUTPA -- as it was then being utilized -- has no bearing on the application of the exclusivity provision to new CUTPA causes of action subsequently employed. Senator DePiano "may well not have foreseen the tendency of counsel . . . `to boldly go where no one has gone before.'"
Moreover, "[a] primary rule of statutory construction is that if the language of the statute is clear, it is presumed that the words express the intent of the legislature." The statute states, "A product liability claim . . . shall be in lieu of all other claims . . . for harm caused by a product." Because this language is unequivocal on its face, the statement in the legislative history purporting to carve an exception to the exclusivity provision is not likely to be -- and should not be -- considered by courts construing its meaning.
Application of the Functional Equivalence Test
As indicated above, the functional equivalence test has become the predominant method for addressing the propriety of CUTPA claims in products cases. Nevertheless, the near uniform decision to apply the functional equivalence test in such cases has not guaranteed that the test is applied consistently. The vast majority of courts applying the functional equivalence test have concluded, correctly in the authors' view, that the CUTPA claims in the cases before them were barred by the PLA. Other cases have held, also correctly in the authors' view, that CUTPA claims before them were not barred by the PLA because the specific CUTPA claims were outside the scope of the PLA. Nevertheless, three other cases have held, incorrectly in the authors' view, that CUTPA claims were not barred. To understand the way the functional equivalence test should be applied, it is helpful to understand these various cases.
Cases Correctly Applying the Functional Equivalence Test
Cases Barring CUTPA Claims
Trial court decisions applying the functional equivalence test are generally quite terse. There is relatively little that distinguishes one decision from another. Nevertheless, discussion of a few cases, in addition to the West Haven School District case discussed above, correctly applying the functional equivalence test to bar CUTPA claims will help to provide a general understanding of these cases.
In Juliano v. The Stanley Works, Inc., an injured plaintiff brought suit against the manufacturer of a staple gun, alleging that the tool was defectively designed and that the defendant had failed to warn of its dangerous and defective condition. The first count of the complaint was under the PLA and the second under CUTPA. The court noted that the injuries claimed in the CUTPA count were "those physical injuries received from the discharge of the nail gun." Thus, the CUTPA claim was "predicated upon physical injuries caused by the product itself, and not upon unfair or deceptive trade practices. Thus there is no functional distinction between the wrongs asserted in the CUTPA claim and those in the product liability claim." Accordingly, the court struck the CUTPA count.
Likewise, in Preferred Remodelers, Inc. v. General Motors Corp., plaintiffs were injured in a motor vehicle accident. They alleged that the accident was caused by brake failure, and, further, that, as evidenced by a recall that had been performed, defendants knew of the problem but had not provided an adequate remedy or warning. The court noted that the PLA and CUTPA "have different purposes which has led some courts to conclude that the Product Liability Act is not exclusive and that CUTPA claims can be concurrently prosecuted." The court went on, however, to conclude that the CUTPA count, "at most, asserts a claim for personal injury and property damage arising out of a sale of the motor vehicle and therefore asserts a product liability claim . . . ." For that reason, the court struck the CUTPA count as barred by the PLA.
As a final example, the most recent case to address this issue, Fiondella v. Chrysler Motors Corp., arose out of the failure of an airbag to deploy during an accident. The complaint included allegations under both the PLA and CUTPA. The allegations of the CUTPA count, in addition to those incorporated from the PLA count, included allegations that the defendant's advertising was misleading and fraudulent. The court held that "[t]hese additional allegations restate claims of misrepresentation, negligence and duty to warn and disclose, all within the purview of a product liability claim as defined in ' 52-572m(b), supra. The CUTPA allegations... are the functional equivalent of the CPLA allegations... The gravamen of the Plaintiff's claim remains a product liability claim involving the alleged defective design, manufacture and installation of plaintiff's vehicle and its supplemental restraining system."
The majority cases thus stand for the proposition that CUTPA claims that seek redress against product sellers for harm caused by a product are barred by the PLA. The mere fact that the harm is called "consumer injury" does not change the cause of the damage or its fundamental nature.
Cases Allowing CUTPA Claims
In at least two instances, courts have correctly refused to strike specific CUTPA claims in products cases. These cases provide helpful guidance regarding the contours of permissible CUTPA claims involving products.
In State of Connecticut v. McGriff, the court aptly applied the functional equivalence test to preserve one type of CUTPA claim, while striking another. The court held that the PLA exclusivity provision bars CUTPA claims only when those claims are within the scope of the PLA. Plaintiff had sued numerous individuals, including an architect, engineer, general contractor, and various product suppliers in connection with defective roofs on ten buildings. In connection with the defendants' motions to strike the CUTPA counts, the court divided the defendants into two groups, product sellers and non-product sellers. With respect to the non-product sellers--that is, the individual service providers such as the general contractor--the court concluded that the complaint set forth a sufficient claim under CUTPA and denied the motion to strike. With respect to the product sellers, however, although the same unfair trade practices were alleged, the court struck the CUTPA claims as barred by the PLA because the complaint revealed "no allegations of harm other than that which must reasonably be construed as resulting from the use of the product of the defendants." This dichotomy was reached simply by noting that the PLA exclusivity provision only bars claims "against product sellers . . . for harm caused by a product."
Similarly, in Palmieri v. Hi-Way Campers, Inc., plaintiffs sought to recover damages for injuries alleged to have been sustained as a result of their purchase and use of a trailer sold by the defendants. The specific CUTPA claims, however, concerned the alleged failure of the defendants to make repairs to their trailer in accordance with applicable warranties. There was no claim for personal injury or property damage resulting from the defective product. Therefore, because product liability claims are limited to claims for personal injury, death, or property damage, the court correctly held that the breach of warranty claims -- even though brought against product sellers -- were not within the scope of the PLA. Further, as the court recognized, claims arising beyond the scope of the PLA may be asserted as common law actions or pursuant to alternative statutory provisions. Accordingly, the court correctly refused to strike the CUTPA claims in that case.
In sum, these cases highlight the obvious limitations of the exclusivity provision of the PLA. If a CUTPA claim is not within the scope of the PLA, then it ought not be barred. Indeed, courts ought to permit non-CUTPA claims outside the scope of the PLA to survive as well.
Cases Incorrectly Applying the Functional Equivalence Test
In three instances, trial courts have applied the functional equivalence test and nevertheless reached a result opposite that which the functional equivalence test suggests. In the authors' view, the different outcome in each of these cases is traceable to the courts' reluctance to apply the functional equivalence test in the manner in which it was intended for fear of interfering with CUTPA's "broad remedial purpose." Such fear is unwarranted, however, because the functional equivalence test is intended to weed out only those redundant claims that are fully actionable under the PLA.
Geissler v. Ford Motor Company involved a CUTPA claim simply incorporated by reference from a PLA count. In that case, plaintiff got into an automobile accident in a Ford vehicle. Plaintiff alleged that the brakes were defective and inadequately tested, and that the warnings and instructions provided with the vehicle were not adequate. In both the PLA and CUTPA counts, plaintiff alleged that the defendants misrepresented to the public that the brakes were safe.
The court adopted the functional equivalence test, but misinterpreted it. The court concluded that, under the functional equivalence test, "the plaintiff must simply plead facts in the CUTPA count beyond those necessary to support a product liability cause of action." Thus, despite the fact that the CUTPA allegations were within the scope of the PLA -- indeed, were within the scope of the plaintiff's actual PLA claim as pleaded -- the court permitted the CUTPA claim to stand because it included allegations that were not necessary to the PLA claim.
Application of the functional equivalence test in this manner is inconsistent with its formulation. Indeed, although the court stated it was applying the functional equivalence test, it preserved a CUTPA count that was identical to a PLA claim already in the case.
A second incorrect decision, Geib v. Oshkosh Truck Corporation, is so brief that it is impossible to discern very much about it. Indeed, the court did not even describe the product at issue. Although the court did not expressly adopt the functional equivalence test, the only cases it cited, Geissler and Stella v. Icicle Seafoods, Inc., did. As between Geissler, which, as discussed above, had erroneously permitted a CUTPA count to stand, and Stella, which had correctly struck a CUTPA count, the court concluded that the case before it, which involved allegations that "the defendants failed to warn users of the known risks of injury involved in the product," was "factually similar" to Geissler. It therefore chose to follow Geissler.
Nevertheless, most of the PLA-CUTPA cases, including Stella, which the court cited, involve allegations that the defendant failed to warn of the potential harm of the product and affirmatively misrepresented the safety of the product. Thus, not only did Geib follow a minority decision, it did so without any real justification.
Moreover, the court focused on the existence of a "legally sufficient CUTPA claim," suggesting that it misunderstood the functional equivalence test. Under the functional equivalence test, it does not matter that the CUTPA claim is "legally sufficient" in the sense that it includes all the elements necessary to make out a CUTPA claim. Indeed, if a CUTPA claim were not legally sufficient, it must be struck regardless of the PLA exclusivity provision. The only question is whether a presumably "sufficient," but redundant CUTPA claim can survive the PLA bar. The PLA and the functional equivalence test say "no."
Finally, in Utica Mutual Insurance Company v. Denwat Corporation, the court explicitly recognized that the CUTPA allegations "may state a cause of action under the PLA." In fact, the court concluded, "The harm alleged may be construed to be injury arising from a defective product, and injury arising out of a product allegedly represented as safe for consumer purchase and use." Thus, the court clearly understood the complete intersection and overlap of the PLA and CUTPA allegations. Indeed, because the CUTPA claim simply incorporated the PLA allegations by reference, the conclusion was inescapable. Nevertheless, the court appears to have concluded incorrectly that plaintiff's claims fell outside the scope of the PLA merely because they fell within the scope of CUTPA.
In sum, these three cases--despite purporting to accept the functional equivalence test, more closely resemble the statutory-purpose cases discussed above, which distinguish the purposes of the PLA and CUTPA statutes, rather than focusing on the specific claims before them.
A Rationale for Applying the Functional Equivalence Test
Despite the developing consensus that courts should apply the functional equivalence test to CUTPA claims in PLA cases, the courts have not clearly described what they are doing when they apply the test and why. The task in products cases is not simply to compare the CUTPA claim with a PLA claim if one exists in the case, but to determine whether a hypothetical PLA claim that includes all the allegations of the CUTPA claim would be within the scope of the PLA. In other words, the functional equivalence test requires one to ask whether the CUTPA claim, were it hypothetically brought under the PLA, would be proper. If the CUTPA claim would be proper under the PLA, it is functionally equivalent to a PLA claim.
Thus, in cases where a CUTPA claim seeks relief
- other than for personal injury, death or property damage,
- against persons other than product sellers, or
- unrelated to harm caused by a product, then the CUTPA claim goes beyond the scope of a proper PLA claim.
Such claims should survive the PLA bar.
On the other hand, if the CUTPA claim includes allegations all of which are appropriate to state a PLA claim, then it is irrelevant whether the claim is also proper under CUTPA. It is likewise irrelevant whether a PLA claim in the case also includes those allegations. If the CUTPA allegations would state an appropriate PLA claim, the CUTPA claim is functionally equivalent to a PLA claim and should be barred.
A simple example demonstrates this. Assume a product seller misrepresents the safety of his product in an advertisement, inducing a consumer to buy the product, and personal injury results. The harm caused by the unfair trade practice is measured by the harm caused by the product. There is no separable consumer injury involving a distinct "ascertainable loss." Accordingly, the damage is fully compensable under the PLA.
Further, in order for the plaintiff to prove that he was injured by misrepresentations regarding the safety of the product, he must necessarily prove that the product was defective; i.e., did not live up to the representations regarding safety. Otherwise, there would be no misrepresentation. Equally important, he must also prove that the misrepresentations caused his injuries. As the Connecticut Supreme Court held in Haesche v. Kissner, if a plaintiff cannot prove that the product caused him harm, he cannot prove that the alleged unfair trade practices caused him harm. Concrete harm -- an "ascertainable loss" -- must be proved. Therefore, recovery under CUTPA cannot achieved unless a remedy is also available under the PLA.
Accordingly, whenever a CUTPA claim includes only allegations appropriately able to be included in a PLA claim, the claim will be "fully actionable" under the PLA. Such claims are redundant if there is a PLA claim in the case or, if there is no PLA claim, simply improperly pleaded. Either way, such claims are barred by the exclusivity provision of the PLA under the functional equivalence test.
Moreover, this is not an accidental result. The "broad remedial purpose" of CUTPA is not sacrificed. Where a CUTPA claim is known--by virtue of the application of the functional equivalence test--to be redundant, all that is lost by striking such a claim is that which the drafters of the PLA intended to be. The plaintiff does not forfeit any compensatory relief for the harm suffered.
Conclusion
In 1979, the Connecticut legislature issued its mandate that there be a single statutory product liability cause of action. To apply that mandate, courts have developed a functional equivalence test. Correct application of the functional equivalence test to CUTPA claims involves a two-step process. First, treat the CUTPA claim as if it were a PLA claim encompassing all the allegations of the CUTPA claim. In many cases, this step is easy because the allegations of the CUTPA claim are simply incorporated by reference from a PLA claim. Second, verify that the hypothetical (or real) PLA claim is in fact sufficient to state a claim under the PLA and does not include allegations not compensable under the PLA. It is irrelevant to the functional equivalence test whether the claim is legally sufficient under CUTPA, although a failure in that regard would present an alternate ground for striking the claim. If the hypothetical PLA claim is not in any respect defective as a PLA claim, the CUTPA claim is functionally equivalent to a PLA claim and must be barred.