Long v. U.S. Brass Corp., CIV. 03-B-968 (BNB).

• Citation: 333 F.Supp.2d 999
• Decision Date: 17 August 2004
• Docket Number: No. 04-B-613 (BNB).,No. CIV. 03-B-968 (BNB).,CIV. 03-B-968 (BNB).,04-B-613 (BNB).
• Parties: Claire LONG and Allstate Insurance Company, an Illinois corporation, Plaintiffs, v. UNITED STATES BRASS CORPORATION, a Texas corporation, and Dormont Manufacturing Company, a Pennsylvania corporation, Defendants.
• Court: U.S. District Court — District of Colorado

333 F.Supp.2d 999

Claire LONG and Allstate Insurance Company, an Illinois corporation, Plaintiffs, v. UNITED STATES BRASS CORPORATION, a Texas corporation, and Dormont Manufacturing Company, a Pennsylvania corporation, Defendants.

No. CIV. 03-B-968 (BNB).

No. 04-B-613 (BNB).

United States District Court, D. Colorado.

August 17, 2004.

Stephen H. Cook, Derek Regensburger, The Law Firm of Stephen H. Cook, PC,

Boulder, CO, Richard Roy Rardin, Cozen O'Connor, Denver, CO, for Plaintiffs.

Kenneth H. Lyman, Bruce Alford Menk, Hall & Evans, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

The Plaintiff in this product liability action, Claire Long ("Long"), moves for summary judgment on the issue who should bear responsibility if she is able to prove that her injuries resulted from a defect in a propane gas pipe. She argues that the Defendant, United States Brass Corporation ("US Brass"), is the apparent manufacturer because U.S. Brass packaged and sold the product as its own and did not disclose at the time of sale that the part was actually manufactured by the Defendant, Dormont Manufacturing Company ("Dormont").

On Friday, August 6, 2004 I heard oral arguments, which supplemented the parties' briefs. For the reasons set forth below, I GRANT the Plaintiff's Motion.

I. Facts

The following facts are undisputed for the purposes of this motion.

On February 23, 2001, Shakira Ballin ("Ballin"), a homeowner in Nederland, Colorado, had a propane heater moved from her living room to a "work room" in her house. The contractor who performed the installation connected the heater to its propane source with a flexible metal connector pipe ("Pipe"), which he had purchased at a hardware store. The Pipe is comprised of a flexible, corrugated metal tube with brass nuts at each end and additional brass fittings. The nuts are stamped with U.S. Brass' name and address — Commerce, Texas. US Brass, which had packaged and sold the Pipe and supplied the brass fittings, subcontracted the manufacturing of the corrugated tube and nuts to Dormont. Neither Dormont's name nor its logo appear on any component of the Pipe. On June 15, 2000, U.S. Brass had written to its testing laboratory, CSA International ("CSA"), to inform CSA of its arrangement with Dormont. CSA maintains records concerning the design and manufacture of U.S. Brass products, but does not share that information with third parties.

Some days after the installation at the Ballin residence, Ms. Ballin retained Ms. Long to tend to the house while she went on vacation. On March 3, 2001, Ms. Long turned on a vacuum cleaner in the work room. The machine ignited propane, which had collected in the room. The explosion and ensuing fire caused Ms. Long second- and third-degree burns on her face and body. The Boulder County Sheriff's Department concluded from its investigation that the source of the ignited propane was a leak in the corrugated tube portion of the Pipe. The Plaintiff, Allstate Insurance Company ("Allstate"), which insured Ms. Ballin, arrived at the same conclusion after its own investigation.

II. Discussion

Rule 56(c) provides that summary judgment shall be granted if no genuine issue of material fact is presented and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, that it believes demonstrate the absence of genuine issues for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party must respond with specific facts showing the existence of a genuine factual issue to be tried. Rule 56(e); see also Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980). These facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

The parties agree that Colorado law applies. Colorado Revised Statutes Sections 13-21-401 et seq. govern product liability actions and impose strict liability upon manufacturers of defective products if enumerated criteria are met, subject to various rebuttable presumptions. The Plaintiffs intend to prove that Ms. Long's injuries resulted from a manufacturing defect in the Pipe and, specifically, the corrugated tube. Ms. Long's motion presents the question whether U.S. Brass is a manufacturer of the product and liable for any defect to be proven at trial.

The parties dispute whether U.S. Brass in fact manufactured the product. Ms. Long claims that U.S. Brass assembled the Pipe before packaging it for sale. Also, I find indications in materials provided by U.S. Brass that it was involved in the manufacturing process. For example, in his Affidavit, Frederick J. Clark ("Clark"), Manager, Special Investigations of CSA, indicates that Dormont manufactured a "component" of U.S. Brass'"flexible gas connector" product, implying that U.S. Brass manufactured the rest. Aff. Frederick J. Clark, ¶¶ 6, 8. Richard Sekerchak ("Sekerchak"), Dormont's designated deponent, testified that U.S. Brass dictated the type and grade of material to be used in manufacturing the Pipe. Dep. Richard Sekerchak, 205-206.

Much of the record before me indicates, however, that U.S. Brass' involvement in the design and production of the Pipe was limited to provision of the brass fittings, which are intended to wed the Pipe to other components of the appliance that it serves. Mr. Sekerchak testified that Dormont controlled the production and assembly of the metal tube and the brass nuts and U.S. Brass produced only the brass fittings. Dep. Richard Sekerchak, 208-210. Dormont would not have shared with U.S. Brass information about its production because U.S. Brass is a competitor. Dep. Richard Sekerchak, 209.

Nothing in the record indicates whether the fittings that U.S. Brass provided were incorporated into or used with the Pipe installed at the Ballin residence. A factual dispute thus exists concerning whether U.S. Brass had any role in the process of manufacturing the end product. Because of this dispute, I do not find that U.S. Brass was the actual manufacturer.

A. The apparent manufacturer doctrine is the law of Colorado.

That U.S. Brass packaged and sold the Pipe with its own name, and no other, displayed on the product is undisputed. US Brass doubts whether that act is sufficient to bring it within the definition of "manufacturer," as that term appears in the statute. US Brass considers itself a "seller," which is an "individual or entity, including a manufacturer, wholesaler, or retailer, who is engaged in the business of selling or leasing any product for resale, use, or consumption." Colo.Rev.Stat. § 13-21-401(3). US Brass claims absolution because "[n]o product liability action shall be commenced or maintained against any seller of a product unless said seller is also the manufacturer of said product or the manufacturer of the part thereof giving rise to the product liability action." Colo.Rev.Stat. § 13-21-402(1). The exception admitted in this innocent-seller rule does not concern U.S. Brass because, it argues, actual manufacturing is the only conduct by which a seller can be deemed to be a manufacturer. The statute does not explicitly state otherwise.

If appearing alone in the statute, these provisions would almost certainly end the inquiry. However, U.S. Brass fails to offer a satisfactory explanation for Subsection 1 of Section 13-21-401, which provides, inter alia,

A seller not otherwise a manufacturer shall not be deemed to be a manufacturer merely because he places or has placed a private label on a product if he did not otherwise specify how the product shall be produced or control, in some manner, the manufacturing process of the product and the seller discloses who the actual manufacturer is.

Colo.Rev.Stat. § 13-21-401(1). This provision would make no sense unless placement of a private label was otherwise sufficient to impose liability. As the Tenth Circuit Court of Appeals stated in Yoder v. Honeywell, Inc., 104 F.3d 1215, 1223 (10th Cir.1997), cert. denied, 522 U.S. 812, 118 S.Ct. 55, 139 L.Ed.2d 19 (1997), "By negative implication the statute allows a seller who places a private label on a product without disclosing the actual manufacturer to be held liable as a manufacturer."

Other than the dicta in Yoder, I have not found, and the parties have not presented, Colorado law on the issue Ms. Long hypothesizes that the Colorado Supreme Court, if confronted with the same facts and issue, see Aurora v. Bechtel Corp., 599 F.2d 382, 386 (10th Cir.1979), would adopt the view of the Restatement, which says, "One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer." Restatement (Second) of Torts § 400 (1965). This so-called "apparent manufacturer" doctrine certainly is not inconsistent with the language of the Colorado statute and matches the implication that the Tenth Circuit found in Subsection 401(1).

The Restatement explains the rationale for the rule.

The actor puts out a chattel as his own product in two types of cases. The first is where the actor appears to be the manufacturer of the chattel. The second is where the chattel appears to have been made particularly for the actor. In the first type of case the actor frequently causes the chattel to be used in reliance upon his care in making it; in the second, he frequently causes the chattel to be used in reliance upon a belief that he has required it to be made properly for him and that the actor's reputation is an...