Opinion
No. CV-08-5014745 S
November 5, 2009
MEMORANDUM OF DECISION
The issue to be determined by way of the motion for summary judgment of the third-party defendant, Carvel Corporation (Carvel), is whether the third-party claim of the defendant third-party plaintiff, The Stop Shop Supermarket Company, LLC (Stop Shop) for indemnification against Carvel is barred by the one-year limitation of action contained in General Statutes § 52-577a(b). Stop Shop opposes the motion claiming that the limitation of action applicable to its indemnification claim is set forth in General Statutes § 52-598a. Stop Shop asserts that its action is timely under that statute.
The plaintiff, Michael Ramic, commenced an action on February 27, 2008 against Stop Shop under the product liability statute, Connecticut General Statutes § 52-572m et seq. Ramic seeks compensation for injuries he allegedly sustained on November 28, 2005 as a result of eating a piece of a Carvel ice cream cake purchased at Stop Shop. Ramic alleges that he bit into a piece of metal in the cake causing him to sustain injuries.
Stop Shop moved to implead Carvel as a third-party defendant for the reason that Carvel is or may be liable to Stop Shop for all or part of Ramic's claim against it. The court (Hiller, J.) granted the motion. Thereafter, Stop Shop served Carvel with a third-party complaint and filed the complaint with the court on June 16, 2009.
In its third-party complaint, Stop Shop alleges that, pursuant to an agreement that it had with Carvel, "Carvel agreed to indemnify [it] for all losses, liabilities, claims and costs arising out of its ice cream products distributed to Stop Shop by Carvel and sold to Stop Shop's customers." Stop Shop additionally alleges that "[i]f . . . Ramic succeeds in proving his product liability cause of action as alleged in his complaint against Stop Shop and if the plaintiff obtains a settlement, verdict or judgment against Stop Shop in favor of . . . [Ramic], then Stop Shop is entitled to indemnification for any such settlement, verdict or judgment and for any expenses incurred including a reasonable attorneys fee . . ."
Carvel moves for summary judgment on the third-party complaint claiming that Stop Shop's indemnification claim against it is barred by the limitation of action contained in § 52-577a(b) because Stop Shop served it with the third-party complaint beyond the time period set forth in the statute. Stop Shop opposes the motion claiming that the applicable limitation of action is promulgated in § 52-598a, and that its third-party action was timely brought under that statute.
Section 52-577a was enacted in 1976 in response to the Supreme Court's decision in Prokolkin v. General Motors Corp., 170 Conn. 289, 365 A.2d 1180 (1976). The court affirmed the trial court's finding that the plaintiff's strict product liability claims were barred by the then applicable statute of limitations embodied in General Statutes § 52-577 which provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The court particularly found no error in the conclusion of the trial court "that the `act or omission complained of' in an action based upon . . . strict liability is the sale of the defective product, and that an allegation of continuing failure to warn of danger after discovering a defect does not prevent the statutory bar of § 52-577 from commencing to run at the date of sale." Id., 301. The court reasoned that "it was [not] unreasonable for the legislature to decide that a products manufacturer should not be subject to strict liability after three years even if a defective product were to cause injury at a later date." Id., 302.
In response to the harshness of the Prokolkin decision, the legislature passed § 52-577a, entitled "Limitation of action based on product liability claim." That statute, passed in 1976, provides in relevant part that a product liability claim must be brought "within three years from the date when the injury . . . is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ." In discussing the bill that was enacted as § 52-577a, Representative Ernest Abate remarked that the "bill would establish a statute of limitations specifically applicable to suits based upon the concept of strict products liability." 19 H.R. Proc., Pt. 6, 1976 Sess., p. 2402.
Subsection (b) of § 52-577a provides a time period for impleading third parties into a product liability action. "In any such action, a product seller may implead any third party who is or may be liable for all or part of the claimant's claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court." General Statutes § 52-577a(b).
In the present action, Carvel claims that Stop Shop's third-party indemnification action against it is barred by § 52-577a(b) because the original product liability claim was returned to court on March 24, 2008 and Stop Shop served its third-party action more than one year later on June 11, 2009. Consequently, Carvel contends that summary judgment should be granted in its favor on the third-party complaint.
Stop Shop claims that § 52-598a, not § 52-577a(b), is the governing limitation of action. That statute provides "[n]otwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement." General Statutes § 52-598a.
General Statutes § 52-598a was enacted in 1993 in response to the Supreme Court's decision in Protter v. Brown Thompson Co., 25 Conn.App. 360, 593 A.2d 524, cert. granted, 220 Conn. 910, 597 A.2d 337 (1991) (appeal withdrawn). In discussing the bill that was enacted as § 52-598a, Representative Tulisano remarked that the "bill deals with insuring that the statute of limitations does not run against somebody before they even find out that they have a right to be indemnified. A recent court decision came down which indicated that that may be the case, and this is a clarification of the current law . . ." 36 H.R. Proc., Pt. 31, 1993 Sess., p. 11006. Representative Radcliffe further remarked that "[t]he reason for the language in the file, and there was a case, Carter [sic] versus Brown Thompson Company which is cited in the file . . ." 36 H.R. Proc., supra, p. 11016.
In Protter, the issue before the court was "whether the trial court properly found that, in a fourth party action for indemnification, the limitations period of 52-577 begins to run on the date of the negligent conduct underlying the original cause of action rather than on the date that a judgment for which the fourth party plaintiff seeks indemnification is rendered." Protter v. Brown Thompson Co., supra, 25 Conn.App. 362. The court held that the period began to run on the date of the negligent conduct while recognizing that it was possible "to bar an action even before the cause of action accrues." Id., 365. General Statutes § 52-598a was enacted to ameliorate the draconian effect of the Protter decision.
In the present action, Stop Shop has brought its third-party claim for indemnification against Carvel prior to the "determination" of Ramic's product claim against Stop Shop. Stop Shop's claim remains a contingent claim for indemnification.
There is no appellate authority as to which limitation of action statute applies to Stop Shop's third-party claim for indemnification in this product liability action. The court finds that the following two trial court decisions provide persuasive authority for the conclusion that, under the facts of this case, § 52-577a(b) applies to bar Stop Shop's indemnification claim.
The case of Demelis v. Lyon Billard Co., Superior Court, judicial district of New Haven, Docket No. 367841 (August 24, 2000, Levin, J.) ( 28 Conn. L. Rptr. 5), involved similar factual and legal claims. In Demelis, the plaintiffs, Mario and John Demelis, sued the defendant, Lyon Billard Co. (L B), for allegedly selling them defective architectural shingles. Id. L B brought a third-party action against Elk Corporation (Elk), the manufacturer of the shingles, seeking indemnification. Id. Elk moved for summary judgment against L B on the third-party complaint claiming that the action was barred by § 52-577a(b). Id. In opposition to the motion, Elk claimed that § 52-598a was the applicable limitation of action statute, and that its third-party action was timely commenced under that statute. Id.
The court, in a well reasoned decision, granted Elk's summary judgment motion. Id. The court applied principles of statutory construction and concluded that §§ 52-577a(b) and 52-598a may be read harmoniously. Id. "Section 52-577a(b) provides a procedural one-year time limit for impleading a product seller into a products liability action for indemnification or contribution. Section 52-598a provides a three-year time limit in which an action for indemnification may be brought after either judgment or settlement. Thus, while L B may have a three-year time period in which to bring an action for indemnification, that time period cannot start to run until L B receives a judgment on or settlement of the complaint against it by . . . DeMelis." Id. Judge Levin more pointedly noted that "as L B argues, a second trial runs the risk of wasting judicial resources . . . L B, however, simply missed the time frame specified in General Statutes § 52-577a(b) to implead Elk into the Demelis' action against L B." (Citation omitted.) Id. But see Johnson v. Allis Chalmers Corp., Superior Court, judicial district of Tolland, Docket No. X07 CV 99 0074165S (May 3, 2001, Bishop, J.) [ 29 Conn. L. Rptr. 442] ("[Section] 52-598a was enacted in 1993, following the enactment of § 52-577a. Accordingly, § 52-598a supersedes § 52-577a and extends the time period for which a party may bring an action for indemnification despite the time frame embodied in § 52-577a. The defendant's argument that § 52-598a does not apply to the ten year statute of repose is defeated by the language of the statute: `notwithstanding any provision of this chapter . . .'" (emphasis in original)).
In Allstate Ins. Co. v. Keystone RV Co., Superior Court, judicial district of Hartford, Docket No. CV 05 4008725 (August 9, 2007, Elgo, J.) ( 44 Conn. L. Rptr. 7), a case involving similar factual and legal claims, Judge Elgo also found the court's decision in Demelis to be persuasive in its reasoning.
The Allstate case involved a fourth-party complaint for indemnification. Id. The fourth-party defendant moved for summary judgment claiming that the indemnification claim was barred by § 52-577a(b). Id. The fourth-party plaintiff opposed summary judgment, asserting that § 52-598a applied and that the action was timely brought under that statute. Id. The court agreed with the fourth-party defendant's position in holding that § 52-577a(b) applied to bar the fourth-party plaintiff's claim and granted summary judgment in favor of the fourth-party defendant. In her careful and detailed decision, Judge Elgo stated that "[i]n light of the Amoco decision and the persuasive reasoning of Demelis, this court holds that application of § 52-598a to this case would be misplaced, given the absence of a judgment or settlement. While [the fourth-party plaintiff] is not precluded from seeking indemnification from [the fourth-party defendant], of and when there is a judgment or settlement in this matter, an indemnification claim pursuant to § 52-598a is simply premature . . . [T]he court is equally sensitive to the specter of wasting judicial resources by having to entertain the possibility of a subsequent action. Nevertheless, to interpret § 52-598a as the governing statute would render § 52-577a(b) a nullity. As such, this court finds that § 52-598a may not be used to bypass the limitation period which the legislature so clearly articulated in § 52-577a(b)." Id.
Judge Elgo relied, in part, on the case of Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 810 A.2d 259 (2002). In that case, the plaintiff entered into a contract with the defendant concerning the installation of underground gas tanks and equipment. Id., 144. The terms of the agreement included indemnification language in favor of the plaintiff. Id. On appeal, the court held that "the trial court properly concluded that General Statutes § 52-576(a) barred [the plaintiff's] claim for indemnification pursuant to the terms of a contract between [the plaintiff] and [the defendant]." Id.
The defendant asserted that § 52-598a was the governing limitation of action. Id., 147. The court disagreed, reasoning that "§ 52-598a provides that a party seeking indemnification may bring an indemnification action within three years from the date [of] an action against it, by a third party, has been determined by either judgment or settlement . . . [The plaintiff] did not allege in count one of its complaint that it sought indemnification for losses it had incurred pursuant to either a judgment or settlement in a third party action. Rather, [the plaintiff] alleged that it had a right to indemnification in accordance with the terms and provisions of its contract with [the defendant] for all damages . . . incurred as a result of [the leaking tank]. Thus, we agree with the trial court that § 52-576(a) rather than § 52-598a applies to [the plaintiff's] claim." (Emphasis in original; internal quotation marks omitted.) Id., 152.
In view of the foregoing, the court concludes under the facts of this case that § 52-577a(b) provides the limitation of action applicable to Stop Shop's indemnification claim against Carvel. Ramic's action for personal injuries against Stop Shop is a product liability claim. "Section 52-577a provides a one-year time limitation in which a party may be impleaded into a products liability action. Thus, § 52-577a allows a party to implead another party prior to adjudication of an underlying products liability claim, rather than wait until judgment or settlement to bring an action in indemnification." Demelis v. Lyon Billard Co., supra, Superior Court, Docket No. 367841. There is no dispute that Stop Shop failed to serve Carvel with the third-party complaint within the one-year time period set forth in § 52-577a(b). Therefore, Carvel's motion for summary judgment on Stop Shop's third-party complaint is granted.
As discussed, Stop Shop seeks in its third-party complaint indemnification from Carvel when there is a determination of Ramic's product liability claim against it by a judgment or settlement, which event has not yet occurred. In accordance with § 52-598a, Stop Shop retains the right to bring such a claim against Carvel. It merely missed the time period to maintain such a claim in the present action.
In view of the foregoing, the third-party defendant Carvel's motion for summary judgment (119.00) is granted.