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King v. Volvo Excavators, AB

Superior Court of Connecticut
Dec 13, 2017
No. KNLCV156024866S (Conn. Super. Ct. Dec. 13, 2017)

Opinion

KNLCV156024866S

12-13-2017

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UNPUBLISHED OPINION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 as executrix of the estate of Daniel King and Donita King, individually, filed a three-count complaint against multiple defendants for the wrongful death of Daniel King. Count one of the complaint is against Volvo Group North America, LLC (" VGNA") and Volvo Construction Equipment North America, LLC (" VCENA"), collectively herein " the Volvo defendants." Count one claims the Volvo defendants are liable under the Connecticut Product Liability Act (" PLA"), General Statutes § 52-572m et seq., for Daniel King’s tragic death in a construction accident. Count three is Donita King’s loss of consortium claim based upon her husband’s death.

Named defendant Volvo Excavators, AB, did not appear and, though it could have been defaulted for that reason, has nothing to do with the present motion.

On August 10, 2016, the Volvo defendants moved (# 142) for summary judgment as to all claims against them. VGNA claims it is entitled to judgment because it never had possession or control of the subject products. VCENA claims entitlement 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 (# 156), with exhibits. The movants filed a reply memorandum (# 157), to which the plaintiffs filed a sur-reply (# 174). The motion was argued on May 8, 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 VCENA in December of that year to LB Smith, Inc. Defendant Tyler Equipment Corporation (" Tyler Equipment") eventually acquired the excavator and, on June 25, 1999, Tyler Equipment sold the excavator to King Construction, Inc., the company for which the decedent was working on the day of the accident. Prior to the sale to, and possession of the excavator by, 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, designed by Volvo Excavators, AB, was distributed by VCENA to Tyler Equipment on or before August 17, 1999, the date Tyler Equipment, by its employee, Tuper, installed it on the subject excavator. Tyler Equipment delivered the excavator to King Construction on September 22, 1999.

The quick-fit attachment was an optional feature of the excavator which permitted rapid changes of devices, such as buckets, on the end of the excavator’s arm.

On November 19, 1999, the excavator was placed in Volvo’s Component Assurance Program, an extended Volvo 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 the extended warranty was by Tyler Equipment on or about May 11, 2001. There is no dispute that the May 11, 2001 servicing did not involve the quick-fit attachment.

DISCUSSION

The 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 VGNA and VCENA last parted with possession and control of the excavator and quick-fit attachment.

Plaintiffs’ claims against VCENA

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 one service call and a courtesy safety check did not establish possession or control).

Applying this legal framework to the facts of the present case, the court finds that VCENA has borne its burden of establishing that it did not have possession or control of the excavator or the 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 VCENA is entitled, as a matter of law, to judgment on count one. 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.

It is undisputed that the two-year extended warranty, described above, on the excavator went into effect beginning on November 19, 1999. The court finds that VCENA 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 occurred on or about May 11, 2001. Relying on machine records in evidence, Bartz further testifies that VCENA never performed repairs or maintenance on the excavator or quick-fit attachment after November 19, 2001, after which day King Construction, without any communication with or direction from VCENA, performed its own maintenance on the subject equipment.

VCENA submitted King Construction’s service records and portions of the deposition transcripts of Bartz and of John King, an officer of King Construction. These exhibits show that, in the years between expiration of the extended warranty 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 performed repairs, it was at the request of King Construction (i.e., not due to any recall of the excavator or quick-fit attachment by VCENA). It is upon these essentially undisputed facts that the court finds VCENA 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 one.

The plaintiffs assert the existence of such an issue based on continued possession and control of the equipment through ongoing involvement in the repair and maintenance of the excavator after November of 2001 and because another Volvo entity maintained a security interest in the excavator. In particular, the plaintiffs claim that VCENA’s contractual relationship and routine interactions with its dealer, Tyler Equipment, in general, and ten specific facts show that there is a triable issue of material fact as to whether VCENA retained possession and control of the subject equipment through at least 2013. The ten facts are these. (1) VCENA’s sole link to its customers is through its dealers, such as Tyler Equipment. (2) VCENA provides free training for authorized Volvo equipment personnel, some of which is required by VCENA for service certification while other training is optional. (Some of this training takes place at VCENA’s main training and manufacturing facility.) VCENA also holds dealer meetings throughout the year, free to dealer representatives, covering all aspects of the construction equipment business. (3) Volvo maintains a " video dealer network" and a " technical support help desk" for direct interaction between dealer mechanics, such as those employed by Tyler Equipment, and Volvo experts. (4) All repairs on Volvo machines must use Volvo parts. (5) VCENA sends service bulletins to dealers, providing a wide range of information and notifying them of failures. (6) If VCENA recalls a product, the recall is handled by its dealers. (7) VCENA issues safety bulletins to its dealers. (8) VCENA sends service manuals and updates to its dealers. (9) Dealer records of service on Volvo equipment are sent to and stored by VCENA. (10) VCENA issues product updates to its dealers, which are repairs that Volvo is requesting be done.

The evidentiary basis of such requirement eludes this court. After expiration of the warranty on a Volvo machine, as far as the evidence reveals, such requirement appears only practical, in that often only Volvo parts will fit Volvo machines. However; the court must view the evidence in the light most favorable to the plaintiffs. Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 320.

Although both Bartz and Tuper testify to some of these facts, others are not supported by the record. Specifically, there is no evidence that VCENA controls what parts are used by Volvo equipment owners or mechanics for post-warranty repairs, and Bartz’s testimony that VCENA does not have mandatory training requirements for its dealers or their employees is essentially unrefuted. Tuper testified with respect only to Tyler Equipment’s use of manufacturer parts for post-warranty repairs, not all Volvo dealers’ practices. If the outcome of the present motion depended on the truth of any fact as to which the plaintiff adduces any evidence a reasonable jury could believe, the court would have to deny the present motion. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-80, 260 A.2d 596 (1969). The court finds that such is not the case.

To return to basics, possession or control means possession or control: even if all these ten facts are true, they do not create a triable issue of material fact concerning whether VCENA 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. The facts claimed, and for present purposes assumed to be true, support a finding of a general, ongoing business relationship between VCENA and Tyler Equipment, but the existence of that relationship is not material to whether VCENA possessed or controlled the subject equipment after November of 2001.

There is no evidence that, after the expiration of the extended warranty, VCENA retained control, let alone possession, of the subject excavator or quick-fit attachment by controlling what was done to maintain them, who maintained them, the parts used to maintain them, or otherwise. The limited analyses in the cases cited by the plaintiffs do not show otherwise. See Martinez v. Timken U.S. Corp., Superior Court, judicial district of Waterbury, Docket No. CV-05-5000162-S (August 16, 2007) (issues of fact existed as to whether the defendant had possession or control of product based on evidence that it provided post-sale service and a major component of the product was in the defendant’s facility after sale); Johnson v. Allis Chalmers Corp., Superior Court, complex litigation docket at Rockville, Docket No. X07-CV-99-0074165-S (November 28, 2001) (issues of fact created by post-sale service of product).

A general business relationship between a dealer and manufacturer, as distinguished from an agency relationship concerning a specific product sufficient to make control by the dealer constructive control by the manufacturer, is not enough to establish the manufacturer’s possession or control of the defective product. The general business relationship between VCENA and Tyler Equipment cannot be stretched to create an issue of fact with regard to continuing possession and control by VCENA over the excavator and quick-fit attachment. The evidence simply does not permit the court to conclude that there is a material question of fact whether VCENA so controlled Tyler Equipment’s post-warranty servicing of Volvo machines, in general, or the subject equipment, in particular, that a reasonable jury could find that VCENA was in possession or control of the excavator and quick-fit attachment after November of 2001. For example, routine safety bulletins and product updates which the plaintiffs’ evidence showed VCENA issued to its dealers, including Tyler Equipment, regarding the model EC340 excavator are not sufficient to create a triable issue as to VCENA’s control of the subject equipment. See Kelemen v. Rimrock Corp., supra, 207 Conn. 608-09; Daily v. New Britain Machine Co., supra, 200 Conn. 568.

Further, even if VCENA had substantial influence over Tyler Equipment’s post-warranty servicing of the excavator and quick-fit attachment, the law is clear that sporadic servicing at the buyer’s request- even if done by the manufacturer- is not enough to establish possession or control for purposes of the product liability act. 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 service and repair records in evidence indicate that most of the post-warranty repairs on the excavator were done by King Construction’s own staff- and that none of the servicing by Tyler Equipment was done at the request, let alone demand, of VCENA.

The plaintiffs also argue that a security interest held by " Volvo" in the excavator and " Volvo’s" right to repossess the machine demonstrates continuing possession and control. The court cannot agree. The evidence shows that King Construction financed its purchase of the excavator with a Volvo entity separate and distinct from VCENA. For present purposes, the financing might as well have been by a non-Volvo entity; the court is aware of no statute, principle of corporate law, or case law supporting the claim that a finding of possession or control, and, therefore, of the existence of a triable issue of fact regarding possession or control, can be based upon a security interest in the product held by a corporate entity other than the defendant.

In sum, the evidence reveals no material question of fact that, after November 19, 2001, VCENA never controlled, let alone possessed, the subject equipment so as to restart the running of the ten-year statute of repose in General Statutes § 52-577a(a). As VCENA 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 one 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 of 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 the defendants’ 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 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) 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.

Plaintiffs’ claims against Volvo Group North America, LLC

VCENA’s co-defendant, VGNA, bases its claim to judgment on count one as a matter of law on its evidence that it never had possession or control of the excavator or the quick-fit attachment; it had no involvement in the design, manufacture or distribution of that equipment; and it never had any contact, direct or indirect, with the equipment. VGNA relies on Bartz’s affidavit. The plaintiffs submitted no evidence to contradict Bartz in this regard. There is no genuine issue of material fact that VGNA never possessed or controlled the subject equipment. Accordingly, VGNA is entitled to summary judgment on count one.

Count three: Plaintiff Donita King’s Claim for Loss of Consortium

The present motion also seeks summary judgment in favor of VCENA and VGNA on count three, plaintiff Donita King’s individual claim for loss of consortium resulting from the death of her husband. Deeming count three to seek relief from the Volvo defendants based on count one, the court’s ruling that the Volvo defendants are entitled to summary judgment on count one precludes Donita King from recovering against either VGNA or VCENA 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).

Count three of the original complaint did not specify from which defendant Mrs. King sought relief. By an amended complaint filed after the present motion was filed, she made it clear that count three seeks recovery from VGNA and VCENA.

CONCLUSION

For the foregoing reasons, VCENA and VGNA are entitled to judgment on counts one and three, and their motion for summary judgment is granted.


Summaries of

King v. Volvo Excavators, AB

Superior Court of Connecticut
Dec 13, 2017
No. KNLCV156024866S (Conn. Super. Ct. Dec. 13, 2017)
Case details for

King v. Volvo Excavators, AB

Case Details

Full title:Donita J. KING, Individually and as Executrix of the Estate of Daniel H…

Court:Superior Court of Connecticut

Date published: Dec 13, 2017

Citations

No. KNLCV156024866S (Conn. Super. Ct. Dec. 13, 2017)