Malerba v. Cessna Aircraft Co.
| Decision Date | 21 February 1989 |
| Docket Number | No. 13492,13492 |
| Citation | 210 Conn. 189,554 A.2d 287 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,098 James G. MALERBA v. CESSNA AIRCRAFT COMPANY. |
| Court | Connecticut Supreme Court |
Steven E. Arnold, with whom, on the brief, was Constance L. Epstein, Hartford, for appellant (defendant-third party plaintiff Cessna Aircraft Co.).
F. Timothy McNamara, Hartford, for appellee (plaintiff).
James H. Rotondo, with whom was John S. Haverstock, Hartford, for appellee (third party defendant Edward A. Schuler).
Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and COVELLO, JJ.
The plaintiff, James G. Malerba, brought an action against the defendant, Cessna Aircraft Company (Cessna), seeking damages for personal injuries sustained in an airplane accident. The complaint contained three counts, each alleging a separate theory of recovery: (1) negligence; (2) strict product liability; and (3) breach of warranty. Cessna filed a motion for permission to serve a third party complaint pursuant to Practice Book § 117. 1 The trial court, Nash, J., granted the motion. The third party complaint was in four counts and was directed against the aircraft's owner, Edward A. Schuler, and the aircraft's mechanic, Peter Lindblom. Counts one and two sought recovery from Schuler based upon common law principles of: (1) indemnification (first count); and (2) contribution (second count). Counts three and four sought recovery from Lindblom, again based upon common law principles of: (1) indemnification (third count); and (2) contribution (fourth count).
Malerba filed a motion to strike the third party complaint in its entirety claiming "it seeks contribution [in a way] ... not recognized under Connecticut law." Schuler, a third party defendant, also filed a motion to strike addressed to the second count (the contribution claim) of the third party complaint "because its claim for contribution ... fails to state a claim for which relief can be granted." 2 The trial court, Stanley, J., thereafter granted both motions and ordered the third party complaint stricken in its entirety. The trial court concluded: (1) common law principles of indemnification had been "abrogated by virtue of our Product Liability Act"; General Statutes §§ 52-240a, 52-240b, 52-572m through 52-572r and 52-577a; and (2) the third party complaint failed to allege either of the preconditions for the initiation of a contribution action apparently required by General Statutes § 52-572o (e). 3 Following the entry of judgment in favor of the third party defendant Schuler, 4 Cessna appealed. We find error and remand for further proceedings.
As a threshold consideration, Cessna argues that Malerba, the original plaintiff, lacked standing to challenge the third party complaint. It argues that since Malerba could not be injured or prejudiced by Cessna's claim against the third party defendants, Malerba lacked standing to challenge the legal sufficiency of Cessna's third party complaint. We disagree.
"When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue...." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978). "[Standing is] ordinarily held to have been met when a complainant makes a colorable claim of direct injury he ... is likely to suffer...." Maloney v. Pac, 183 Conn. 313, 321, 439 A.2d 349 (1981).
The question then is whether the third party complaint and the parties it draws into the action create a risk of a direct injury to the original plaintiff. Injury in this context includes procedural injury to the cause of action. Practice Book § 117 provides that the third party complaint (Emphasis added.) See Gino's Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 141-43, 475 A.2d 305 (1984). It is apparent that Practice Book § 117 thus arms a third party defendant with the full panoply of procedural options available to address not only the claim of the third party plaintiff but also the claim of the original plaintiff against the original defendant. The addition of two defendants with perhaps greater insights as to both the factual and legal ramifications of the original cause of action creates at least a colorable claim of a likelihood of injury to the plaintiff's cause of action. This being the case, we conclude that the plaintiff had standing to challenge the sufficiency of the third party complaint.
Cessna next claims that the trial court erred in concluding that actions for a contribution within the context of a product liability claim, 5 must meet the provisions of General Statutes § 52-572o(e) as a precondition to the initiation of the contribution action, i.e., the entry of a judgment against the joint tortfeasors and actual payment by one of them to the original claimant or an agreement by one of the tortfeasors to pay the claimant which is thereafter fully executed. 6 While § 52-572o (e) establishes preconditions to the initiation of a contribution action, this statute must be construed in harmony, if that is possible, with General Statutes § 52-102a(a), which authorizes the impleading of third parties by a defendant in a civil action without such preconditions. This latter provision states in relevant part: "A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." (Emphasis added.) 7
General Statutes § 52-102a is similar in content to General Statutes § 52-577a(b) which is the statute of limitations in product liability actions. This latter statute provides: "In any [product liability] 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." While § 52-577a(b) omits the words "to him" which are found in § 52-102a, the failure to identify specifically to whom the impleaded third party may be liable does not preclude parallel treatment of the two statutes in view of their otherwise similar language. Link v. Shelton 86 Conn. 623, 627, 443 A.2d 902 (1982).
In Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965), we observed that "indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others." (Emphasis added.) It is evident that the language of § 52-102a, which describes a third party who may be liable to the defendant for all or part of the claim, refers to causes of action for indemnity and contribution respectively. Thus, while § 52-572o (e) requires some disposition of the original claim as a precondition to the initiation of a cause of action seeking contribution from a third party, §§ 52-102a and 52-577a(b) implicitly authorize the inclusion of such a claim in the original product liability action without any preconditions.
"If the statutes appear to be repugnant, but both can be construed together, both are given effect." Hirschfeld v. Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71 (1977). Such a reconciliation is especially important in dealing with provisions that are enacted as part of the same legislation. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637, 513 A.2d 52 (1986).
We harmonize the apparent inconsistency between the three statutes by concluding that the preconditions of § 52-572o (e) apply only to those circumstances where a party elects to pursue an independent cause of action for a contribution rather than impleading the prospectively liable third party as authorized by §§ 52-102a and 52-577a(b). This construction of § 52-572o (e) furthers the salutary purpose of encouraging parties to consolidate the litigation flowing from a given factual circumstance into a single judicial proceeding thereby avoiding multiplicity of actions. Our earlier analysis of § 52-102a recognized this to be the case. See Senior v. Hope, 156 Conn. 92, 96, 239 A.2d 486 (1968); see also F. James & G. Hazard, Civil Procedure (3d Ed.1985) § 10.18. In view of the similarity in language between §§ 52-102a and 52-577a(b), we see no reason why this analysis is not equally applicable to § 52-577a(b). Since these statutes implicitly authorize the initiation of contribution actions by defendants in product liability cases, and the preconditions of § 52-572o (e) apply only to independent contribution actions, we conclude that the trial court erred in striking the second and fourth counts of the third party complaint.
Cessna next claims that the court erred in striking the remaining paragraphs of the third party complaint which sought indemnification from Schuler and Lindblom. The plaintiff argues that actions for common law indemnification within the context of a product liability claim have been abrogated by the adoption of the product liability act. We disagree.
As earlier discussed, there is within the language of both General Statutes §§ 52-102a and 52-577a(b) implicit authority for defendants to maintain both...
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