Comer v. Getty Oil Co.

• Decision Date: 13 August 1981
• Citation: 438 A.2d 1239
• Parties: 33 UCC Rep.Serv. 35 Marie E. COMER, et al., Plaintiffs, v. GETTY OIL COMPANY, et al., Defendants. . Ready for
• Court: Delaware Superior Court

Page 1239

438 A.2d 1239

33 UCC Rep.Serv. 35

Marie E. COMER, et al., Plaintiffs, v. GETTY OIL COMPANY, et al., Defendants.

Superior Court of Delaware, New Castle County.

Ready for Decision Aug. 13, 1981.

Decided Oct. 27, 1981.

Revised Dec. 8, 1981.

On Motion Of Defendant Allis-Chalmers Corporation For Summary judgment.

Thomas D. Whittington, Jr. (argued), of Wilson & Whittington, Wilmington, for plaintiffs.

B. Wilson Redfearn (argued), of Tybout, Redfearn, Casarino & Pell, Wilmington, for defendant Allis-Chalmers Corp.

William F. Taylor, of Young, Conaway, Stargatt & Taylor, Wilmington, for defendant Getty Oil Co.

Lawrence C. Ashby, of Morris, Nichols, Arsht & Tunnell, Wilmington, for defendant E. I. duPont deNemours & Co.

Gary W. Aber, of Biggs & Battaglia, Wilmington, for defendant Miller Stephenson.

Richard R. Wier, Jr., of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for defendant Montgomery Ward.

TAYLOR, Judge.

Plaintiff's decedent (decedent) was killed while working as an employee of defendant Catalytic, Inc. (Catalytic) while performing electrical work at the Delaware City Refinery of defendant Getty Oil Company (Getty). The accident which resulted in decedent's death occurred January 13, 1975. Suit was filed January 11, 1977. The complaint alleges that decedent's death was the result of negligence and breach of implied warranty of fitness with respect to the design and manufacture of a tie breaker by Allis-Chalmers Corporation (Allis-Chalmers). The tie breaker was purchased by Getty in 1955 and installed in 1956. It appears that Allis-Chalmers had no further relationship to the tie breaker after selling it in 1955.

I

The issues raised by Allis-Chalmers require initial consideration of whether or not this case is governed by the Uniform Commercial Code which was enacted in this State (with minor modification) in 1967 by 55 Delaware Laws Ch. 349, 6 Del.C. Subtitle I. Allis-Chalmers sold the tie breaker to Getty in 1955.

6 Del.C. § 10-101 provides "This subtitle applies to transactions entered into and events occurring after June 30, 1967." The effect of this language is that the UCC does not apply to or affect rights and transactions arising or occurring prior to the effective date of its enactment. 4 Anderson Uniform Commercial Code § 10-101:3, -:5, -:6, pp. 651-4. Addressing this issue in the context of the statute of limitations, 6 Del.C. § 2-725(4) provides:

This section does not alter the law on tolling the statute of limitations nor does it apply to causes of action which have accrued before this subtitle became effective.

The sale and delivery occurred in 1955, before Delaware enacted the UCC. This sale is not a transaction entered into after June 30, 1967. Cf. 6 Del.C. § 10-101.

Plaintiff urges that since the injury occurred in 1975 it is an event which occurred after the enactment of the UCC in 1967, plaintiff should be afforded the protection of that Code. Plaintiff has cited no authority in support of that proposition.

Cases which have considered the applicability of the UCC provisions to contracts which were entered into prior to enactment of the UCC have generally held that the law which was in effect at the time the contract was entered into would govern the substantive rights of the parties under the contract and are not affected by the subsequently enacted UCC provisions. General Electric Credit Corp. v. Western Crane and Rigging Co., Neb.Supr., 184 Neb. 212, 166 N.W.2d 409 (1969); First National Bank v. Bahan, Ohio C.P., 198 N.E.2d 272 (1964); Peachtree News Co. v. MacMillan Co., Ga.App., 112 Ga.App. 556, 145 S.E.2d 666 (1965); Rinnert v. Indianapolis Morris Plan Corp., Ill.App., 74 Ill.App.2d 388, 220 N.E.2d 256 (1966); Wilson v. Prudential Ins. Co., Ark.Supr., 239 Ark. 1071, 396 S.W.2d 300 (1965); Florida Power & Light Co. v. Westinghouse Electric Corp., 4 Cir., 579 F.2d 856 (1978); Toulon v. Nagle, Wis.Supr., 67 Wis.2d 233, 226 N.W.2d 480 (1975); Blakeney v. Dee, Ala.Supr., 363 So.2d 313 (1978); First National Bank v. Jack Mathis General Contractor, Inc., Or.Supr., 274 Or. 315, 546 P.2d 754 (1976); Roller v. Jaffe, Pa.Supr., 387 Pa. 501, 128 A.2d 355 (1957); Paramount Paper Products Company v. Lynch, Pa.Supr., 182 Pa.Super. 504, 128 A.2d 157 (1956).

This Court in Kates v. Pepsi-Cola Bottling Co. of Salisbury, Md., Del.Super., 263 A.2d 308 (1970); and Moore v. Douglas Aircraft Co., Del.Super., 282 A.2d 625 (1971) held that the provisions of the UCC did not apply to transactions occurring prior to Delaware's enactment of that statute. Plaintiff points out that in Salisbury and Moore the injury as well as the sale occurred before Delaware's enactment of the UCC.

Plaintiff urges that since the injury occurred in 1975 it is an event which occurred after the enactment of the UCC in 1967, and hence, under the alternative wording of 6 Del.C. § 10-101.

A careful consideration of the scope of the statutory reference to events occurring after enactment of the UCC is found in Florida Power & Light Co. v. Westinghouse Electric Corp., supra. In that case, a contract to apply fuel over a period of years for a nuclear power plant was entered into before the effective date of the UCC. Six years after execution of the contract and five years after the UCC became effective an option provided under the contract was exercised, and two years thereafter the alleged breach of contract occurred which was the basis of the suit. The Court held that the exercise of a pre-existing option and a subsequent contractual default were not "events" which would cause the rights of the parties to be governed by the UCC even though they occurred subsequent to its enactment. Specifically, the Court rejected the contention that "acts done pursuant to the contract should be construed as 'events' bringing the contract within the UCC purview". Similar holdings have been made in First National Bank v. Bahan, supra; Rinnert v. Indianapolis Morris Plan Corp., supra; and Toulon v. Nagle, supra.

While it is true that the injury to plaintiff occurred after that date, the transactions and events relating to the sale occurred prior to that date. Plaintiff has cited no case or authority in support of the contention that the date of the injury should determine the right to invoke implied warranty based upon an earlier sale where the law has been changed subsequent to sale and delivery of goods, and the Court has found none. 6 Del.C. § 10-102(2) provides:

Transactions validly entered into before the effective date specified in Section 10-101 and the rights, duties and interests flowing from them remain valid thereafter and may be terminated, completed, consummated or enforced as required or permitted by any statute or other law amended or repealed by this subtitle as though such repeal or amendment had not occurred.

Although 6 Del.C. § 10-101 does not state that it has no application to sales transactions completed before the effective date of the Act, and §§ 10-102 through 10-104 indicate prospective application, nothing appears in the Act indicating a legislative intent to apply the provisions of the Act to transactions completed before its enactment.

II

As the Delaware law existed prior to enactment of the UCC, Delaware did not recognize a right of action against a manufacturer based upon breach of implied warranty unless privity existed between the plaintiff and the manufacturer. Ciociola v. Delaware Coca-Cola Bottling Co., Del.Supr., 172 A.2d 252 (1961); Cline v. Prowler Industries of Md., Inc., Del.Supr., 418 A.2d 968 (1980). It is not contended that privity of contract exists between plaintiff and Allis-Chalmers. Therefore, at the time of the sale of this tie breaker and at least until enactment of the UCC in 1967 Allis-Chalmers owed no duty to those who were not in privity of contract with it who might be injured by an unfit product nor did those who were injured because of such product who lacked privity of contract have a right of action against Allis-Chalmers based upon breach of implied warranty.

It is generally recognized that a statute will not be given retroactive application which affects substantive rights, at least in the...