PARKER v. COLGATE-PALMOLIVE CO., No. X08 CV 03 0193798 S (Aug. 8, 2003)

ADAMS, JUDGE.

Christopher Parker brings this civil action against the Colgate-Palmolive Company (Colgate) as a putative class action on behalf of himself and all persons similarly situated. Parker alleges that his front teeth were knocked out as a teenager and replaced by artificial teeth. He alleges he purchased a Colgate product called Simply White, the package of which states the product provides "the easy way to sparking white teeth . . . whitens in 14 days," in the belief it would whiten his artificial dental work. Parker further alleges that after the product was purchased and the package opened, an insert within the package stated that "Simply White only whitens natural teeth, not dental work such as crowns, caps, fillings and veneers," and Parker found that Simply White would not whiten his artificial teeth. Finally, Parker alleges that he has been damaged in the amount of the approximately $15.00 he paid for the Colgate product.

In addition to the allegations supporting his request for class action status and his role as class representative, Parker asserts five substantive causes of action in separate courts. Two of these counts purport to state claims under the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a et. seq. (CUTPA). A third count alleges a cause of action under the Connecticut Products Liability Act, General Statutes §§ 52-572m et seq., and § 52-240b. The fourth and fifth counts allege claims of unjust enrichment and fraud respectively.

Colgate has moved to strike all the substantive counts of the complaint, pursuant to Practice Book § 10-39. A motion to strike tests the legal sufficiency of a pleading, any count thereon or any prayer for relief. In ruling on a motion to strike the court must assume that all well stated allegations of fact, and any reasonable inferences that can be drawn therefrom, are true. The court must construe the facts in the pleading most favorably toward the pleader; however, opinions and legal conclusions in the pleading, unsupported by alleged facts, are not grounds to deny a motion to strike. Fort Trumbull Conservancy, LLC v. CT Page 8894-bc Alves, 262 Conn. 480, 498 (2002).

Discussion

A. Connecticut Products Liability Act

In his Count III Parker alleges a cause of action pursuant to the Connecticut Products Liability Act. That statute defines a "product liability claim" as including claims for "personal injury, death or property damages." General Statutes § 52-572m (b). Parker has not suffered such an injury or loss. Financial loss such as the $15.00 paid for Simply White is not the type of harm or loss covered by the Products Liability Act, Gerrity v. P.J. Reynolds Tobacco Co., 263 Conn. 120, 129-30 and n. 11 (2003).

B. Unjust Enrichment

In Count IV Parker alleges that Colgate unjustly enriched itself by financially profiting from the sale, through deceptive means, of Simply White to him and others similarly situated. These monies, it is alleged, belong to Parker and the others.

A claim of unjust enrichment arises when one has conferred a benefit on another through the provision of property or services under a contract and justice requires compensation for that benefit and no contract remedy applies. Gagne v. Vaccaro, 255 Conn. 390, 401 (2001) [citing 12 Williston, Contracts (3 ed. 1970) § 1479, p. 272]; see also Hartford Whalers Hockey v. Uniroyal Goodrich Tires, 231 Conn. 276, 282 (1994) (citing the same authority). Parker alleges no contract, nor the provision of any property or services to Colgate.

The standard recitation of the elements of an unjust enrichment claim include: (1) the defendant was benefitted, (2) the defendant unjustly did not pay for the benefit and (3) that failure was detrimental to the plaintiff. See e.g. Hartford Whalers Hockey v. Uniroyal Goodrich Tire, supra, 231 Conn. 283. There is no allegation that Colgate failed to pay for a benefit. Indeed, one would not expect Colgate to pay for a benefit in the circumstances alleged, an indication why the plaintiff's attempted employment of the unjust enrichment doctrine in this case is not viable.

The court also notes the recent decision in Granito v. IBM, Superior Court, judicial district of Tolland at Tolland, complex litigation docket, X07 CV02 0080440 (April 16, 2003, Sferrazza, J.) ( 34 Conn.L.Rptr. 485). In that case, a putative class action plaintiff sought recovery from the defendant IBM for allegedly defective computer hard CT Page 8894-bd disk drives distributed by IBM to various computer manufacturers and vendors. The court struck a count for unjust enrichment because although it was alleged IBM profited from the sale, there was no allegation that the plaintiff had paid IBM directly for any such hard disk drive. Similarly, Parker, like the Granite plaintiff, alleges that Colgate profited from the introduction and sale of Simply White. However, there is no allegation that Parker paid money directly to Colgate or that the individual sale of Simply White to Parker generated any benefit to Colgate, or that Colgate is holding any money from Parker's purchase.

For the reasons stated in the above three paragraphs, the allegations of Count IV do not state a claim for unjust enrichment, and the counts should be stricken.

Count V alleges that Colgate committed fraud. To allege fraud one must allege that there was (1) a representation made by a party as a statement of fact, (2) which was untrue and known to be untrue by the party making it, (3) which was made to induce another party to act, or rely, upon it, (4) to its detriment. Weisman v. Kasper, 233 Conn. 531 (1995).

In this count Parker alleges that Colgate has made a "false and misleading statement" (Complaint, Count V, ¶ 14), "misrepresentations and omissions" ( id., Count V, ¶ 20) and has referred to the "falsity of Colgate's representations and/or omissions of material facts." ( Id. Count V, ¶ 22.) However, there is no specific allegation of fact as to what precisely is false about the Colgate representations that Simply White whitens teeth. The actual thrust of the allegations is that the representations on the package and available to Parker before purchase do not reveal that Simply White will not whiten artificial devices in the mouth such as dentures, veneers, crowns, caps and the like; indeed, the complaint alleges "[t]he packaging does not disclose that Simply White only whitens natural teeth and does not whiten teeth that have had dental work, including but not limited to, crowns, caps and veneers." (Complaint, Count V, ¶ 13.) That allegation concedes the truth of the representation that Simply White whitens teeth.

Parker alleges that a majority of consumers over the age of forty do not have all natural teeth. (Complaint, Count V, ¶ 13.) He appears to contend that the word "teeth" is generally understood to include within its meaning both natural teeth and dental work, and therefore, the representation by Colgate as to Simply White is false. The court does not accept this contention. On its face, it seems incorrect, and a review of CT Page 8894-be three dictionaries confirms that the primary meaning of the word "tooth" refers to the natural bonelike structure attached to the jaw consisting of a core of soft pulp surrounded by a layer of hard dentine and coated with cement and enamel. None of the definitions include artificial or manmade dental work with its meaning.

As noted Parker's claim of fraud is really founded on the concept that allegedly critical information, i.e., that Simply White would not whiten artificial teeth, was not disclosed on the package. To constitute fraud the omission or non-disclosure of a fact must be coupled with a legal duty to disclose. Parker does allege that Colgate had such a duty, but that is a conclusion of law not binding on the court. The court concludes there is no duty on a retail product seller to disclose each and every fact known about the product on its outside packaging. This is particularly so in this case when the claimed fraudulent non-disclosure involves explaining that "teeth" means only natural teeth, a fact that should be known based on the well accepted definition of the word. It is further so when information made available within the package, and before the product's use, clarifies any potential ambiguity. Count V should be stricken.

D. Connecticut Unfair Trade Practices Act

The first two counts of Parker's complaint allege violations of CUTPA a statute which prohibits, inter alia, a corporation from engaging "in unfair or deceptive acts or practices in the conduct of any trade or commerce"; General Statutes § 42-100b; and provides for a civil action for damages for any person or class of persons "who suffers any ascertainable loss "as a result of the unfair or deceptive acts or practices." Count I alleges that Colgate was engaged in deceptive practices and Count II alleges it was engaged in unfair practices. Both counts seek money damages and injunctive relief against Colgate.

Colgate has moved to strike both CUTPA counts. The basis of Colgate's motion is essentially that it is unreasonable for anyone to be deceived into thinking that Simply White would whiten anything other than natural teeth. This broad contention, however, is somewhat belied by the fact that Colgate itself included the information about not whitening caps, veneers, etc. in the insert inside the package. While proof of a deceptive practice under CUTPA is often less demanding than that required for fraud; see Langer, Morgan, Belt, The Connecticut Unfair Trade Practices Act, § 4.2 (1994); in this case the court's finding above in connection with the fraud count precludes the plaintiff from pursuing Count I alleging deceptive practices in violation of CUTPA simply because there was no misrepresentation. CT Page 8894-bf

Count II alleges that Colgate's representations were unfair in that the failure to specify on the package, and thus provide the information "prior to the time consumers buy the product" that "Simply White does not whiten dental work such as caps, crowns and veneers" was likely to mislead a consumer. (Complaint, Count II at ¶ 21.) The Connecticut Supreme Court has pointed out that CUTPA is a remedial statute and must be broadly and liberally construed. Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 354; see also General Statutes § 42-110b (d). In determining what qualifies as an unfair practice, Connecticut courts have regularly used a definition initially formulated by the United States Federal Trade Commission in 1964, to wit:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

See Associated Investment Co. Limited Partnership v. Williams Associates IV, 230 Conn. 148, 155 and n. 11.

The court concludes that the allegations of Count II, quoted and set forth above, claiming it an unfair practice not to divulge that Simply White will whiten only natural teeth until after the point of purchase can fit within the broad parameters of an established concept of unfairness. Therefore, Count II states a viable claim for relief under CUTPA.

Conclusion

The motion to strike is granted as to all counts of the complaint, except Count II.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE