Allard v. Liberty Oil Equipment Co., (SC 16154)

• Decision Date: 25 July 2000
• Docket Number: (SC 16154)
• Citation: 253 Conn. 787,756 A.2d 237
• Court: Connecticut Supreme Court
• Parties: BRUCE ALLARD v. LIBERTY OIL EQUIPMENT COMPANY, INC.

253 Conn. 787

756 A.2d 237

BRUCE ALLARD v. LIBERTY OIL EQUIPMENT COMPANY, INC.

(SC 16154)

Supreme Court of Connecticut.

Argued May 30, 2000.

Officially released July 25, 2000.

Borden, Norcott, Katz, Sullivan and Vertefeuille, JS. John B. Farley, with whom, on the brief, were James V. Somers, Michael S. Taylor and Jodie R. Small, for the appellant (defendant).

Michael Brodinsky, for the appellee (third party defendant).

Opinion

BORDEN, J.

The sole issue in this appeal is whether a defendant sued in negligence may apportion liability to a product seller against whom the defendant alleges, in its apportionment complaint, only a theory of negligence. The defendant, Liberty Oil Equipment Company, Inc. (Liberty Oil),¹ appeals² from the judgment of the trial court striking its apportionment complaint against the third party defendant, Boston Steel and Manufacturing Co. (Boston Steel). Liberty Oil claims that the trial court improperly struck its apportionment complaint because, although Boston Steel was alleged to be a product seller with respect to the particular item in question in the case, Liberty Oil confined its apportionment allegations against Boston Steel to claims of negligence. We affirm the judgment of the trial court.

The plaintiff, Bruce Allard, brought the action underlying this case against Liberty Oil in negligence. Liberty Oil filed a substitute apportionment complaint against Boston Steel. The trial court granted Boston Steel's motion to strike the substitute apportionment complaint, and rendered judgment accordingly.

The procedural history is undisputed. In June, 1996, Allard brought the underlying action in this case. In his original complaint, Allard alleged that, on February 27, 1995, while employed by Viking Oil, Inc.,³ he brought his oil truck to Liberty Oil for servicing and, while in Liberty Oil's service area, he was descending certain steps of a ladder on his truck when he fell, landing on a wooden hand truck, causing him to suffer severe injuries. Allard alleged that Liberty Oil was negligent in failing to maintain its service area in a safe condition, in failing to prohibit customers from entering the service area, and in failing to take reasonable measures to prevent customers from entering the dangerous service area. Liberty Oil filed its first apportionment complaint against Boston Steel alleging that a portion of its liability to Allard, if any, should be apportioned to Boston Steel because the oil truck or a portion of the oil truck from which Allard allegedly had fallen was "designed, installed, manufactured, distributed, or sold by" Boston Steel, and was defective and unreasonably dangerous. The trial court, Lavine, J., granted Boston Steel's motion to strike this first apportionment complaint. Liberty Oil then filed a substitute apportionment complaint (apportionment complaint), which is the focus of this appeal.

In the apportionment complaint, Liberty Oil alleged that the portion of the oil truck from which Allard allegedly had fallen, including the tank and ladder, was "designed, manufactured, installed, distributed, or sold by" Boston Steel. Liberty Oil also alleged that Allard had alleged that his injuries were the result of Liberty Oil's negligence, and that, if Allard had suffered any injuries, "then said injuries and damages were proximately caused by the negligence and carelessness of Boston Steel...."⁴ Accordingly, Liberty Oil sought "an apportionment of liability against Boston Steel for the percentage of its liability causing the plaintiff's alleged injuries and damages." Boston Steel moved to strike the apportionment complaint on the ground that, despite the allegations of negligence, the apportionment complaint "alleges a products liability claim, not a negligence claim." The trial court, Lavine, J., granted the motion to strike. Subsequently, the trial court, Maloney, J., granted Liberty Oil's motion for judgment on the apportionment complaint.⁵ This appeal followed. Liberty Oil claims that the trial court improperly struck its apportionment complaint. Liberty Oil's argument is simple and straightforward: it has been sued in negligence; General Statutes § 52-572h permits apportionment of negligence claims; its apportionment complaint seeks to apportion only its liability, if any, based on negligence; and, therefore, its apportionment complaint was proper. Despite this apparent simplicity and straightforwardness, however, we disagree. We conclude that the trial court properly struck the apportionment complaint.

It is undisputed that Liberty Oil filed its apportionment complaint pursuant to General Statutes § 52-102b (a),⁶ which provides in pertinent part: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability...." Indeed, § 52-102b is "the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action." General Statutes § 52-102b (f).

It is also undisputed that, to the extent that Allard's complaint seeks damages from Liberty Oil based on negligence, that complaint is a "civil action to which section 52-572h applies"; General Statutes § 52-102b (a); because of the provisions of § 52-572h (c): "In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages...." General Statutes § 52-572h (c), as amended by No. 99-69, § 1 (c), of the 1999 Public Acts (P.A. 99-69).⁷ Put another way, a "civil action to which section 52-572h applies," within the meaning of § 52-102b, means a civil action based on negligence.

In addition, Boston Steel does not dispute that, if Liberty Oil's apportionment complaint were based on allegations of negligence by Boston Steel that did not in any way involve Boston Steel's conduct as a product seller, within the meaning of our statutes governing product liability; General Statutes §§ 52-572m through 52-572q;⁸ the apportionment complaint would be proper. That is because, in that instance, the provisions of § 52-572h would plainly apply. See General Statutes § 52-572h (b) and (c), as amended by P.A. 99-69, as set forth in footnote 7 of this opinion.

The question raised by the present case, however, is whether § 52-572h, as amended by P.A. 99-69, permits an apportionment complaint that seeks to limit its allegations against a product seller, as defined by our product liability statutes, to allegations of negligence. We conclude that it does not, because of the provisions of our product liability statutes, as we have interpreted them, and because of the specific provisions of § 52-572h, as contained in P.A. 99-69, § 1 (o).

First, the allegations of the apportionment complaint are that Boston Steel "designed, manufactured, installed, distributed, or sold" the portion of the oil truck from which the plaintiff allegedly fell. These allegations are classic allegations of product liability. See, e.g., General Statutes § 52-572m (a) ("`[p]roduct seller' means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption"); see footnote 8 of this opinion for the full text of § 52-572m. It cannot be disputed that Boston Steel is, under the allegations of the apportionment complaint, a "`product seller'" within the meaning of § 52-572m. See also General Statutes § 52-572m (b) ("`[p]roduct liability claim' includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product").

Second, under § 52-572m (b), a "`[p]roduct liability claim' includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent...." Thus, despite the limitations by Liberty Oil of its allegations of misconduct to allegations of negligence, the allegations of the apportionment complaint constitute a "`[p]roduct liability claim'" within the meaning of § 52-572m (b).

Section 52-572n (a) provides: "A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." See footnote 8 of this opinion for the full text of § 52-572n. It is now beyond dispute that this provision "provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 463, 562 A.2d 517 (1989) (plaintiff cannot avoid product...