Opinion
KNLCV156024866S
02-08-2018
Donita J. KING, Individually and as Executrix of the Estate of Daniel H. King v. VOLVO EXCAVATORS, AB et al.
UNPUBLISHED OPINION
OPINION
Cole-Chu, J.
On September 4, 2015, the plaintiffs, Donita King individually and Donita King as executrix of the estate of Daniel King, filed a three-count complaint against multiple defendants for the wrongful death of the decedent. Count II of the complaint is directed at Tyler Equipment Corporation (" Tyler Equipment" ) and seeks to hold it liable under Connecticut’s Product Liability Act (" PLA" ), General Statutes § 52-572m, et seq. Count IV is a related loss of consortium claim.
On May 15, 2017, Tyler Equipment moved for summary judgment (# 176) as to all claims against it. Tyler Equipment claims it is entitled to judgment because the plaintiffs’ claims are barred by the governing statute of repose set forth in General Statutes § 52-577a. The plaintiffs filed an opposing brief (# 189), with exhibits. Tyler Equipment filed a reply memorandum (# 190). The motion was argued on July 17, 2017. The court apologizes for the delay in ruling on the present motion.
The pleadings, affidavits and exhibits submitted on the present motion reveal the following relevant facts. On May 30, 2014, the decedent was in a trench at a construction site when the bucket on a Volvo model EC340 excavator detached from the excavator due to a defective Volvo attachment and fell on the decedent, who sustained fatal crushing injuries. The excavator was designed and manufactured by Volvo Excavators, AB, in 1997 and distributed by Volvo Construction Equipment North America, LLC (" VCENA" ) in December of that year to LB Smith, Inc. Tyler Equipment eventually acquired the excavator and, on June 25, 1999, sold it to King Construction, Inc., the company for which the decedent was working on the day of the accident. On or about August 17, 1999- prior to Tyler Equipment’s delivery of the excavator into the possession of King Construction- defendant Bruce Tuper, a service employee at Tyler Equipment, installed a hydraulic " quick-fit" attachment on the excavator’s arm. The quick-fit attachment, which permitted rapid changes of devices, such as buckets, on the end of the excavator’s arm, was also designed by Volvo Excavators, AB, and distributed by VCENA to Tyler Equipment. Tyler Equipment delivered the excavator to King Construction on September 22, 1999. On November 19, 1999, the excavator was enrolled in Volvo’s Component Assurance Program, an extended warranty plan covering certain aspects of the machine, including the quick-fit attachment, for two years or 4,000 hours, whichever first occurred. The extended Volvo warranty expired no later than November 19, 2001. The final servicing of the excavator under that warranty was by Tyler Equipment on or about May 11, 2001, and did not involve the quick-fit attachment.
DISCUSSION
Summary Judgment Standard
The party seeking summary judgment has the burden of showing that there is no pertinent issue of fact. Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). On a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Id., 320. If the movant does not establish that there is no genuine issue of material fact, the nonmovant need not submit evidence establishing that there is a material issue of fact in dispute. Id., 320-21. If, however, the movant sustains its burden, the party opposing summary judgment can only defeat it by establishing that there actually is a disputed issue of material fact. Id.
The Statute of Repose
General Statutes § 52-577a(a) establishes for product liability claims a three-year statute of limitation and a ten-year statute of repose. With certain exceptions, the ten-year limitation runs from " the date that the party last parted with possession or control of the product." General Statutes § 52-577a(a). As such, the operative inquiry for purposes of summary judgment is whether material facts are in dispute regarding when Tyler Equipment last parted with possession and control of the excavator and quick-fit attachment.
The intent of the PLA " is to hold sellers of products liable for a certain time period after those products have left their possession or control and entered the marketplace. Presumably, a seller would have a chance to discover defects and take appropriate action to remedy them while the product remains in its possession." Kelemen v. Rimrock Corp., 207 Conn. 599, 607, 542 A.2d 720 (1988). As " possession" and " control" are not defined in the statute, " it is appropriate to look to the common understanding expressed in the law and in dictionaries." (Internal quotation marks omitted.) Id., 605. It is generally accepted that " possession" is defined as " the act or condition of having in or taking into one’s control or having at one’s disposal," and " control" is defined as " the power or authority to guide or manage: directing or restraining domination." (Internal quotation marks omitted.) Id.
A manufacturer or distributor is generally considered to have last parted with possession and control of a product when it sold or distributed the product to a dealer or customer. See Thomas v. Mazak Corp., 234 F.Supp.2d 135, 138-40 (D.Conn. 2002); Daily v. New Britain Machine Co., 200 Conn. 562, 566-70, 512 A.2d 893 (1986). However, in certain circumstances, the manufacturer or distributor may be found to have retained, or reacquired, possession or control after the product was sold or distributed if it was party to a written agreement for service of the product and actually performed substantial post-sale repairs or maintenance on the product. See Nicholson v. United Technologies Corp., 697 F.Supp. 598, 600-01 (D.Conn. 1988) (control found where manufacturer performed extensive post-sale service under a written service agreement). Factors to consider when determining whether a post-sale servicing arrangement constitutes continuing possession or control of a product include " the number of service calls made by the defendant, whether or not those calls were made pursuant to a service contract, and the extent of the defendant’s influence over the maintenance and operation of the machine." Thomas v. Mazak Corp., supra, 139; see Daily v. New Britain Machine Co., supra, 566-70 (evidence of single service call and a courtesy safety check insufficient to establish possession or control).
Applying this legal framework to the facts in the present case, the court finds that Tyler Equipment has borne its burden of establishing that it did not have possession or control of the excavator or quick-fit attachment after November of 2001 and that, therefore, the effect of the ten-year statute of repose in General Statutes § 52-577a(a) is that Tyler Equipment is entitled, as a matter of law, to judgment on count two. In the affidavit of John Bartz, VCENA’s Director of Product Assurance & Regulation, Bartz testifies that VCENA distributed the excavator to L.B. Smith, Inc., in December of 1997, and that Tyler Equipment acquired it sometime before June 25, 1999, the date Tyler Equipment sold the excavator to King Construction. Bartz also testifies that, although VCENA has been unable to locate the original distribution documents for the quick-fit attachment, VCENA distributed the quick-fit attachment to Tyler Equipment not later than August 17, 1999, based on Tyler Equipment’s records that it installed the attachment on the excavator on that date. Tyler Equipment delivered the excavator, with the quick-fit attachment, to King Construction on September 22, 1999. Bartz’s affidavit and Tyler Equipment’s exhibits show that the excavator was enrolled in Volvo’s Component Assurance Program, the two-year extended warranty described above, on November 19, 1999.
The court finds that Tyler Equipment established that there is no basis for a good faith dispute that coverage under that program ended not later than November 19, 2001, and that the final servicing of the excavator and the quick-fit attachment under the extended warranty was performed by Tyler Equipment on or about May 11, 2001.
Tyler Equipment submitted King Construction’s service records and portions of the deposition transcripts of Bartz and King Construction officer, John King. These exhibits show that, in the years between November 19, 2001, when Volvo’s extended warranty expired, and the day of the subject tragedy, King Construction was not obligated to use Volvo parts or service, and performed much of the maintenance of, and repairs to, the excavator and quick-fit attachment by its own staff, occasionally contracting Tyler Equipment and other mechanics for such work. The evidence also shows that when Tyler Equipment did perform repairs on the excavator, it did so at the request of King Construction, not due to any recall of the excavator or quick-fit attachment. It is upon these essentially undisputed facts that the court finds Tyler Equipment has established that it is entitled to judgment as a matter of law, absent the plaintiffs’ showing that there is a material issue of fact on count two.
The plaintiffs assert the existence of such an issue based upon continued possession and control of the equipment through ongoing involvement in the repair and maintenance of the excavator after November of 2001. In particular, the plaintiffs claim that Tyler Equipment’s repair and servicing records indicate that it exerted possession and control of the excavator through at least 2014. The plaintiffs rely on King Construction’s records of repairs, maintenance, and purchases of parts for the excavator showing that Tyler Equipment performed field service on the subject equipment on August 30, 2013; it serviced or supplied parts for the excavator to King Construction through 2014; and Tyler Equipment was paid over $36,000 for those services and parts. The plaintiffs also rely on a June 6, 2005, letter from King Construction to Tyler Equipment regarding a complaint about repairs to the excavator; an August 28, 2005, invoice cancelling an order for a rental machine to be used by King Construction while Tyler Equipment made repairs to an machine other than the subject excavator; an October 12, 2005, email from Tyler Equipment indicating adjustments to King Construction’s account and a statement of credit; and an October 19, 2005, invoice from Tyler Equipment for several throttle problem service calls on the subject excavator.
To return to basics, possession or control means possession or control: even if all these facts are true, they do not create a triable issue of material fact concerning whether Tyler Equipment possessed or controlled either the subject excavator or the subject quick-fit attachment after November of 2001. The plaintiffs have failed to meet their burden of raising a triable issue of fact. There is no evidence that, after the 2001 expiration of the extended warranty, King Construction had a general or ongoing maintenance, service or warranty agreement with Tyler Equipment regarding the excavator or quick-fit attachment. Nor is there evidence that Tyler Equipment had the power to influence when the excavator or quick-fit attachment were serviced; what servicing was done and by whom; what parts would be used; let alone where the excavator would be kept or who could operate it. In fact, the evidence shows that King Construction used equipment servicers other than Tyler Equipment- and that the bulk of post-2001 repairs on the excavator were done by King Construction’s own staff. Indeed, prior to the subject accident, King Construction had its own employees assess issues with the bucket coming loose or falling off, and made the necessary repairs: it did not have the excavator serviced by the movant. The post-warranty service performed by Tyler Equipment was neither related nor critical to the functioning of the excavator or the quick-fit attachment. What the evidence indicates is that post-warranty service provided by Tyler Equipment was sporadic, done at the request of King Construction, and often performed in the field, i.e., at a construction site, not in Tyler Equipment’s custody. The law is clear that sporadic servicing at the buyer’s request is not enough to establish possession or control. See Thomas v. Mazak Corp., supra, 234 F.Supp.2d 139-40 (eleven non-warranty service calls made at buyer’s request insufficient to establish possession or control); Daily v. New Britain Machine Co., supra, 200 Conn. 568-69 (courtesy check and service call insufficient to establish possession or control).
The limited analyses in the cases cited by the plaintiffs do not show that Tyler Equipment’s post-warranty servicing resulted in possession or control. For instance, Johnson v. Allis Chalmers Corp., Superior Court, complex litigation docket at Rockville, Docket No. X07-CV-99-0074165-S (November 28, 2001), provides a vague recitation of facts, stating only that the service provider maintained possession and control of a forklift by servicing it during the repose period. Johnson provides no details on the frequency or nature of the servicer’s contacts with the forklift- facts that are dispositive of possession and control. See Daily v. New Britain Machine Co., supra, 200 Conn. 564, 568-69; Thomas v. Mazak Corp., supra, 234 F.Supp.2d 139-40. The plaintiffs also rely on Martinez v. Timken U.S. Corp., Superior Court, judicial district of Waterbury, Docket No. CV-05-5000162-S (August 16, 2007) , wherein the court found issues of fact relative to possession or control based on generally described evidence of post-sale service and possession of a " major component" of the machine. The evidence in the present case, however, indicates only that Tyler Equipment had possession of certain pumps for a brief period of time in order to reseal them: there is no evidence that these pumps were related, let alone integral, to the quick-fit attachment or were so important that possession of the pumps could reasonably be argued to constitute possession of the excavator.
The plaintiffs also argue that there is a question of fact regarding whether Tyler Equipment had a continuing duty to repair or warn King Construction about the defect. The plaintiffs rely on Patterson v. Onyx Environmental Services, LLC, Superior Court, complex litigation docket at Middlesex, Docket No. X04-CV-054004137-S (November 30, 2007) . Patterson is inapplicable to the present case as it addresses the continuing course of conduct doctrine as it applies to negligence and recklessness claims, governed by General Statutes § 52-584. Here, the plaintiffs’ claims are governed by General Statutes § 52-577a(a), which unequivocally states that the repose period commences from the date that the party " last parted with possession and control of the product." Accordingly, to the extent Tyler Equipment had a duty to warn, the repose period for such a claim is calculated from the date Tyler Equipment last parted with possession or control of the excavator or quick-fit attachment. Again, there is no genuine issue of material fact that Tyler Equipment last parted with possession and control of the excavator and quick-fit attachment, for purposes of the statute of repose, not later than November 19, 2001. There is no evidence- including that the movant knew of any defect of the quick-fit attachment- upon which the court can find a triable issue of material fact as to whether Tyler Equipment had a duty after that date to warn King Construction of any such defect.
In sum, the evidence reveals no material question of fact that, after November 19, 2001, Tyler Equipment did not control or possess the subject equipment so as to restart the running of the ten-year statute of repose in General Statutes § 52-577a(a). As Tyler Equipment had no legally cognizable control of the excavator and quick-fit attachment after November 19, 2001, the statute of repose barred any product liability action after November 19, 2011, nearly four years before the present action was commenced.
The plaintiffs contend that the statute of repose cannot constitutionally bar their claim in count two because that would violate their right to equal protection of the law. Implicitly admitting that the decedent was " entitled to compensation under chapter 568" - workers’ compensation benefits- for purposes of General Statutes § 52-577a(c), the plaintiffs claim that the effect of General Statutes § 52-577a(c), as it read at the outset of this suit, is to extinguish their right of action before it accrued. The court finds no merit in that argument because barring inchoate and future claims is the essence of statutes of repose. Baxter v. Sturm, Ruger & Co., 230 Conn. 335, 341, 644 A.2d 1297 (1994).
The plaintiffs do not specify the source of the constitutional right they claim is violated until the penultimate paragraph of this argument. See brief dated February 27, 2017 (# 156), p. 24, where they assert " the equal protection clauses of the federal and state constitution[s]." See U.S. Const., amend XIV, § 1; Conn. Const., art. 1, § 20.
When the present suit was initiated, General Statutes § 52-577a(c) provided that " [t]he ten-year limitation provided for in subsection (a) of this section shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under chapter 568, provided the claimant can prove that the harm occurred during the useful safe life of the product. In determining whether a product’s useful safe life has expired, the trier of fact may consider among other factors: (1) The effect on the product of wear and tear or deterioration from natural causes; (2) the effect of climatic and other local conditions in which the product was used; (3) the policy of the user and similar users as to repairs, renewals and replacements; (4) representations, instructions and warnings made by the product seller about the useful safe life of the product; and (5) any modification or alteration of the product by a user or third party." (Emphasis added.)
More specifically, the plaintiffs assert that the " useful safe life of the product" exception to the statute of repose, General Statutes § 52-577a(c), unconstitutionally excludes persons who are injured in the course of their employment, such as the decedent, from the extended " useful safe life" claim period for claimants injured by, hypothetically, the same product but not in the course of employment. The plaintiffs acknowledge, as they must, that a challenge to the constitutionality of the statute of repose on this ground was rejected in Daily v. New Britain Machine Co., supra, 200 Conn. 576-81. However, they claim that public policy has so evolved since 1986, when Daily was decided, that our Supreme Court’s analysis in that case is weakened to the breaking point. To show this evolution, the plaintiffs submit Connecticut Raised Bill No. 7194 which, at the time this motion was argued, was a bill to remove the workers’ compensation exclusion from General Statutes § 52-577a(c). Raised Bill No. 7194 was enacted as P.A. 17-97, signed into law by the Governor on June 30, 2017, and became effective on October 1, 2017. The General Assembly’s public policy findings are contained within P.A. 17-97: the act provides neither that the amendment of General Statutes § 52-577a(c) is retroactive nor any basis on which the court could conclude that the amendment was intended to be so.
Although the complaint does not explicitly allege that the excavator or quick-fit attachment was within its useful safe product life, the court cannot avoid consideration of General Statutes § 52-577a(c) on such technical grounds. The complaint is not required to anticipate defenses. Todd v. Bradley, 99 Conn. 307, 311, 122 A. 68 (1923). Also, the complaint implicitly alleges that the equipment was still, at the time of the subject accident, in general operation. See Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005) (interpretation of pleadings is a question of law for the court). If there were doubt regarding Tyler Equipment’s entitlement to summary judgment, that doubt would have to be resolved in favor of the plaintiffs. See United Oil Co. v. Urban Redevelopment Commission, supra, 58 Conn. 378-80.
The General Assembly could have provided that P.A. 17-97 was retroactive. See Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 402 n.37, 119 A.3d 462, 506 (2015) (explaining that legislature explicitly stated that amendment was retroactive).
There is no reason, let alone requirement, to analyze whether retroactive application of P.A. 17-97 is an appropriate legislative response to an extraordinary circumstance, let alone a circumstance of extraordinary potential for injustice. See Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 357 (retroactive application of amendment held to be constitutional).
This Court is bound by controlling judicial precedent, particularly as established by our state Supreme Court. Moreover, the enactment of P.A. 17-97 says nothing, as a matter of law, regarding the constitutionality of General Statutes § 52-577a(c) before October 1, 2017. See State v. Hernaiz, 140 Conn.App. 848, 855, 60 A.3d 331, cert. denied, 308 Conn. 928, 64 A.3d 121 (2013); see also Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 300, 957 A.2d 407 (2008) (" [i]t is an extreme act of judicial power to declare a statute unconstitutional. It should be done with great caution and only when the case for invalidity is established beyond a reasonable doubt" ). Accordingly, the constitutionality of General Statutes § 52-577a(c) before its 2017 amendment continues to be governed by Daily v. New Britain Machine Co., supra . See also Kelemen v. Rimrock Corp., supra, 207 Conn. 609-11; Tarbe v. Berkel, Inc., 196 F.3d 136, 137-38 (2d Cir. 1999) (changes to workers’ compensation statute " do nothing to undermine the rationality of the Connecticut legislature’s balanced approach to its products liability statute of limitations" ). This court has no basis on which to conclude that General Statutes § 52-577a(c) was unconstitutional in September of 2015, when this action was filed. Indeed, this court has no power to apply P.A. 17-97 retroactively because to do so would be to intrude on the powers of the General Assembly.
Count Four: Donita King’s Claim for Loss of Consortium
The present motion also seeks summary judgment in favor of Tyler Equipment on count four, plaintiff Donita King’s individual claim for loss of consortium resulting from the death of her husband. Deeming count four to seek relief from Tyler Equipment based on count two, the court’s ruling that Tyler Equipment is entitled to summary judgment on count two precludes Donita King from recovering against it on the derivative claim for loss of consortium. See Voris v. Molinaro, 302 Conn. 791, 799-800, 31 A.3d 363 (2011) (derivative claim such as loss of consortium, being defined by the injury done to the principal, fails- is " lost, diminished or barred" - when the injured person’s claim fails).
CONCLUSION
For the foregoing reasons, Tyler Equipment is entitled to judgment on counts two and four, and its motion for summary judgment is granted.