Consumers can hold a company liable not only for misrepresenting a product but also the physical harm it causes, said the Supreme Court in a 5-0 decision, and therefore, a Consumer Fraud Act claim can be filed concurrently with a Product Liability Act claim in the same complaint.

"PLA and CFA claims may proceed in separate counts of the same suit, alleging different theories of liability and seeking dissimilar damages," said Justice Lee Solomon, who delivered the opinion Wednesday.

Solomon said the two statutes govern different conduct, are intended to provide different remedies and are not mutually exclusive.

"There is thus no direct and unavoidable conflict between the CFA and PLA," Solomon said. Chief Justice Stuart Rabner and Justices Jaynee LaVecchia, Barry Albin and Faustino Fernandez-Vina joined. Justices Anne Patterson and Walter Timpone did not participate.

The issue arose in Sun Chemical v. Fike, a federal case in which plaintiff Sun Chemical Corp. alleges it purchased a suppression system from the defendant Fike Corp., which had marketed it as fail-proof and preventing the very thing it caused: an explosion, which ultimately injured seven Sun workers.

"It is the nature of the claims brought, and not the nature of the damages sought, that is dispositive of whether the PLA precludes the separate causes of action," Solomon wrote. "In other words, the PLA will not bar a CFA claim alleging express or affirmative misrepresentations."

The question of law over the statutes' applicability was posed to the Supreme Court by the U.S. Court of Appeals for the Third Circuit: "Can a Consumer Fraud Act (CFA) claim alleging express misrepresentations — deceptive, fraudulent, misleading, and other unconscionable commercial practices — be brought in the same action as a Product Liability Act (PLA) claim premised upon product manufacturing, warning, or design defects?"

Solomon said the statutory language and legislative history of both statutes, and the court's relevant jurisprudence regarding both, informed the court's affirmative answer to the question. The case was argued on March 17.

New Jersey Association for Justice and the state Attorney General's Office appeared as amici—whom Solomon said the court agreed with in reaching its decision.

Lance Kalik at Riker Danzig Scherer Hyland & Perretti in Morristown represented Sun Chemical.

"Our client is gratified that the New Jersey Supreme Court ruled today that Sun Chemical has a right under the Consumer Fraud Act to recover the losses it suffered from an explosion at its East Rutherford facility in 2012 that tragically injured several of its employees," Kalik said in a statement. "Sun contends that it purchased the [new explosion suppression and isolation] system based on certain representations made by Fike that turned out to be untrue and which caused its losses.

"The Supreme Court correctly recognized what Sun Chemical has argued throughout this case, that the Consumer Fraud Act provides a remedy for Sun Chemical's claims against Fike Corp., and that the Products Liability Act does not preclude those claims," added Kalik. He noted that "Sun Chemical's employees have reached a settlement with the defendant Fike Corp. in a separate litigation to address their injuries, and Sun Chemical eagerly looks forward to its day in court."

Gino Mecoli of Reilly, McDevitt & Henrich in Cherry Hill represented Fike and Suppression Systems Inc. Mecoli did not respond to calls or emails for comment.

Christopher Placitella of Cohen Placitella & Roth's Red Bank office represented the NJAJ, which contended that CFA and PLA claims should be able to proceed concurrently if both are supported by the facts.

"This case highlights the importance of amicus acting as a friend to the court," Placitella said. "Here, the court in a momentous and consequential decision, adopted the position advocated by NJAJ holding that under New Jersey law, consumers can hold a corporate defendant liable for both the express or affirmative misrepresentations that it makes about its products and the physical harm caused by those products."

Kevin Jespersen, assistant attorney general, represented the Attorney General's Office, which contended that recovery under the PLA is limited to tort-based theories of recovery for losses that fit the PLA definition of harm. The office had no comment on the decision.

Solomon outlined the sphere of each statute. The justice said that, as the more expansive and older of the two, the CFA prohibits deceptive, fraudulent, misleading, and other unconscionable commercial practices in connection with the sale of any merchandise or real estate. Passed by the Legislature in 1960 and amended 11 years later, the CFA "evinces a clear legislative intent that its provisions be applied broadly," said Solomon, quoting from case law.

The PLA, enacted in 1987, is more limited and imposes liability on the manufacturer or seller for a product's manufacturing, warning, and design defects.

"The PLA governs the legal universe of products liability actions as defined in that Act, and the CFA applies to fraud and misrepresentation and provides unique remedies intended to root out such conduct," Solomon explained.

"The failure to warn of a product defect is cognizable under the PLA, while an affirmative misrepresentation that a specific flaw did not exist, or a product had never failed may be brought under the CFA," added Solomon.

According to the decision, in 2012, Sun Chemical, an ink manufacturing company based in New Jersey, purchased an explosion isolation and suppression system from Fike to prevent and contain potential explosions in its new dust collection system at its Piscataway facility. The suit claims that, on the first day that the suppression system was operational, a fire occurred, and an alarm on the suppression system's control panel was activated but was inaudible. An explosion sent a fireball through the ducts of the dust collection system, injuring seven Sun employees and damaging Sun's facility, according to the decision.

Sun brought CFA and PLA claims in the same count of a single-count complaint in U.S. District Court of the District of New Jersey. The complaint alleged that Fike, headquartered in Blue Springs, Missouri, made oral and written misrepresentations about four aspects of its suppression system: that it would prevent explosions, contained an audible alarm, complied with industry standards, and never failed.

The District Court granted Fike's summary judgment motion, finding that Sun's claims would be governed by the PLA and that the firm could not avoid the requirements of the PLA by crafting its claims under the CFA.

Sun appealed, and after finding insufficient case law to provide guidance as to whether to apply the CFA or PLA, the Third Circuit sent the question to the state Supreme Court, which it accepted last year.

In Wednesday's opinion, Solomon said Sun "is mistaken in its heavy reliance on the nature of the damages it seeks, claiming they are economic losses rather than damages for injury to persons or property. The nature of the plaintiff's damages does not determine whether the cause of action falls under the CFA or PLA; rather, it is the theory of liability underlying the claim that determines the recoverable damages."

Solomon added, "We conclude that, irrespective of the nature of the damages, a CFA claim alleging express misrepresentations—deceptive, fraudulent, misleading, and other unconscionable commercial practices—may be brought in the same action as a PLA claim premised upon product manufacturing, warning, or design defects."