Kelemen v. Rimrock Corp.

• Decision Date: 24 May 1988
• Docket Number: 13269,Nos. 13268,s. 13268
• Parties: , 6 UCC Rep.Serv.2d 710, Prod.Liab.Rep. (CCH) P 11,821 David G. KELEMEN, Sr. v. RIMROCK CORPORATION.
• Court: Connecticut Supreme Court

Page 720

542 A.2d 720

207 Conn. 599, 6 UCC Rep.Serv.2d 710,

Prod.Liab.Rep. (CCH) P 11,821

David G. KELEMEN, Sr. v. RIMROCK CORPORATION.

Nos. 13268, 13269.

Supreme Court of Connecticut.

Argued Jan. 5, 1988.

Decided May 24, 1988.

Lorraine W. Osborne, with whom, on the brief, were Daniel Shepro and Anne Marie W. Vetrosky, Bridgeport, for appellants (plaintiff and intervening plaintiff).

Theodore R. Tyma, with whom were George L. Holmes, Jr., and, on the brief, James F. Kenney, Bridgeport, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and COVELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal concerns the applicability of the ten year statute of repose for product liability claims; General Statutes § 52-577a(a); ¹ to a lawsuit filed by the plaintiff, David Kelemen, Sr., against the defendant, Rimrock Corporation. ² The trial court, Harrigan, J., found that the defendant had parted with possession and control of the product in question over ten years before the lawsuit had been initiated, thus barring the claim. We find no error.

The evidence before the trial court revealed the following facts. The plaintiff was employed by Teledyne Mt. Vernon Die Casting Corporation (Teledyne), the intervening plaintiff in this action, when he was injured by a filler cap that blew off a compression tank on May 23, 1978. On May 21, 1981, the plaintiff filed a lawsuit against the defendant, the manufacturer of the tank that had sold the compression tank to Teledyne. An amended complaint dated May 18, 1987, brought the action under Connecticut's product liability statutes, General Statutes § 52-572m et seq. The defendant raised a special defense of the statute of repose, alleging that it had parted with possession or control of the compression tank on May 18, 1971, when it placed the tank on a carrier for delivery to Teledyne. General Statutes § 52-577a(a). The parties agreed to waive their right to a trial by jury on the special defense, and a hearing was held before the court to determine this issue. The defendant produced one witness, Arthur R. Prince, a longtime employee of the defendant, on this issue raised by the special defense. He testified that he had shipped the compression tank in question on May 18, 1971, from the defendant's plant in Columbus, Ohio, by loading it on a truck owned by Cooper-Jarrett, Inc., a motor carrier. Prince also testified that the contract provided for F.O.B., Columbus, Ohio; that the defendant did not pay shipping costs and that all its responsibility for the tank had ended when it had been loaded on the carrier. The defendant offered no evidence concerning when the shipment had arrived at Teledyne's place of business. The defendant's invoice contained the following language: "Terms: Net 30 Days--All Goods F.O.B. Columbus, Ohio." The invoice also contained the following language: "All orders accepted and all agreements are subject to delays occasioned by accident, strikes, fires and causes beyond our control. Our responsibility ceases when goods have been delivered to carrier. No goods accepted for return without our approval." The trial court concluded that the defendant had parted with possession and control of the pressure tank on May 18, 1971, and that the ten year statute of repose therefore barred the plaintiff's action.

The plaintiff lists five claims on this appeal, but these are more appropriately divided into three issues. The plaintiff contends that the trial court erred in: (1) applying the standards of possession and control under the Uniform Commercial Code (code) and Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986); (2) finding that a letter from the defendant did not constitute continuing control of the compression tank; and (3) holding that General Statutes § 52-577a(a) is constitutional.

I

The plaintiff claims that the trial court erred when it applied the risk of loss provision of the code to arrive at its conclusion that the defendant parted with possession and control of the compression tank on May 18, 1971. He contends that the code does not define "possession" and "control" and that the risk of loss provision is not concerned with possession, making any reliance on that specific provision inapposite. On the other hand, the defendant asserts that the trial court correctly applied the standards of possession and control set out in Daily v. New Britain Machine Co., supra. The trial court, although it acknowledged the Daily definitions extensively, appeared to rely heavily on General Statutes § 42a-2-509, ³ the risk of loss provision of the code. We conclude that such reliance was erroneous because that section was drafted to serve specific purposes that are unrelated to preconditions of statutes of repose. See J. White & R. Summers, Uniform Commercial Code (2d Ed.1980) § 5-1. Nevertheless, applying the Daily definitions of possession and control to the F.O.B. provision of the contract leads us to the same conclusion as the trial court.

This court discussed the definitions of the words "possession" and "control" in Daily, a case where the plaintiff argued that a courtesy check and service call within ten years of a product liability claim constituted possession or control, leaving the defendant liable under the statute. There, the trial court held in its memorandum of decision that, "[a]s the terms are not defined in the statute, they are to be accorded their ordinary meaning." Daily v. New Britain Machine Co., supra, at 566-67 n. 6. The Daily court then quoted a number of dictionary definitions of possession and control, which had been compiled by the trial court. ⁴ In Daily, we concluded that the actions of the manufacturer did not constitute possession or control as those words are commonly understood. Id., at 569. We will undertake a similar analysis in this case.

Neither § 52-577a(a) nor the code define the words "possession" or "control." " 'Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.' Doe v. Manson, [183 Conn. 183, 186, 438 A.2d 859 (1981) ]; Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979)." Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787, reh. denied, 475 U.S. 1061, 106 S.Ct. 1290, 89 L.Ed.2d 597 (1986). Webster's Third New International Dictionary defines "possession" as "the act or condition of having in or taking into one's control or having at one's disposal...." "Control" is defined by Webster's as the "power or authority to guide or manage: directing or restraining domination." Accord Daily v. New Britain Machine Co., supra, 200 Conn. at 566-67 n. 6, 512 A.2d 893.

In deciding how to allocate control and possession of contract goods, contracting parties sometimes include trade terms such as F.O.B. The applicable code provision, General Statutes § 42a-2-319(1), defines an F.O.B. shipment contract as follows: "Unless otherwise agreed the term F.O.B., which means 'free on board,' at a named place, even though used only in connection with the stated price, is a delivery term under which (a) when the term is F.O.B. the place of shipment, the seller must at that place ship the goods in the manner provided in section 42a-2-504 and bear the expense and risk of putting them into the possession of the carrier...." Since the contract provided for F.O.B. Columbus, Ohio, and no variation was made by mutual agreement, the contract to ship the compression tank is governed by the rules concerning F.O.B. shipment contracts. The words of § 42a-2-319(1) contemplate that the seller puts the goods "into the possession of the carrier." (Emphasis added.) The carrier, usually an independent contractor and not an agent of either the buyer or the seller, has possession and control of the goods in the ordinary meaning of the words. The uncontroverted evidence in this case indicates that Cooper-Jarrett, Inc., had no relationship to either the plaintiff or the defendant except as an independent contractor. Under the ordinary meaning of the words "possession" and "control" and under § 42a-2-319(1), the carrier had actual physical possession of the compression tank and exercised control over it during its journey to the destination of the buyer.

It is essential to follow the precise direction of § 52-577a(a). It unequivocally states that no action can be brought later than ten years "from the date that the party last parted with possession or control of the product." (Emphasis added.) Prior to the revision of the statute of repose in 1979, the defendant had to prove only that the sale had occurred more than eight years before the action had been commenced by the injured party. See General Statutes (Rev. to 1979) § 52-577a. ⁵ The legislature, in 1979, changed the date when the repose period commenced from the date of sale to the date that the party last parted with possession or control of the product. It did not use the date that the buyer gained possession or control of the product and we must presume that it meant to make such a distinction. "Where the legislative intent is clear there is no room for statutory construction." Hartford Hospital v. Hartford, 160 Conn. 370, 376, 279 A.2d 561 (1971); see also Johnson v. Manson, supra, 196 Conn. at 316, 493 A.2d 846; Houston v. Warden, 169 Conn. 247, 252-53, 363 A.2d 121 (1975). "We have recognized that 'courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it....' Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980)." Mingachos v. CBS, Inc., 196 Conn. 91, 98, 491 A.2d 368 (1985). The plaintiff argues that Teledyne did not have possession or control of the tank until it actually had received it. Even if factually correct, this point is irrelevant since the operative statutory focus is when the seller "last parted with...