Miller v. Solaglas California, Inc.

• Decision Date: 07 October 1993
• Docket Number: No. 91CA1745,91CA1745
• Citation: 870 P.2d 559
• Parties: Prod.Liab.Rep. (CCH) P 13,898 George Joseph MILLER, Plaintiff-Appellee and Cross-Appellant, v. SOLAGLAS CALIFORNIA, INC., a California corporation; and PPG Industries, Inc., a Pennsylvania corporation, Defendants-Appellants and Cross-Appellees. . III
• Court: Colorado Court of Appeals

Page 559

870 P.2d 559

Prod.Liab.Rep. (CCH) P 13,898

George Joseph MILLER, Plaintiff-Appellee and Cross-Appellant, v. SOLAGLAS CALIFORNIA, INC., a California corporation; and PPG Industries, Inc., a Pennsylvania corporation,

Defendants-Appellants and Cross-Appellees.

No. 91CA1745.

Colorado Court of Appeals,

Div. III.

Oct. 7, 1993.

Rehearing Denied Nov. 12, 1993.

Certiorari Denied April 4, 1994.

James L. Gilbert & Associates, P.C., James L. Gilbert, Carrie R. Frank, Arvada, Londrigan, Potter & Randle, P.C., Thomas F. Londrigan, Springfield, IL, for plaintiff-appellee and cross-appellant.

Burg & Eldredge, P.C., Michael S. Burg, Peter W. Burg, Tom A. Van Buskirk, Denver for defendants-appellants and cross-appellees.

Opinion by Judge JONES.

In this personal injury action premised on theories of negligence and products liability, defendants, Solaglas California, Inc. (Solaglas) and PPG Industries, Inc., appeal the judgment entered on a jury verdict in favor of plaintiff, George Joseph Miller. Plaintiff cross-appeals the trial court's application of an offset for prior settlements to the damages assessed by the jury before adding prejudgment interest to the verdict. We affirm.

This action arises out of a 1982 automobile accident involving plaintiff. The vehicle involved in the accident, a 1980 General Motors Corporation (GMC) light-duty pickup truck, was sold new to a third-party buyer by a dealer on April 18, 1980. Three days after the sale, the buyer returned to the dealer to have a crack in the truck's windshield repaired. The dealer sent all of its warranty windshield repair work to a glass installation and replacement store owned by defendants. It was there that the windshield of the truck here involved was replaced on April 21, 1980.

On July 17, 1982, plaintiff borrowed the truck. As he approached an intersection, he observed that the traffic lights were not working. Although he reduced his speed, plaintiff proceeded through the intersection without stopping. The truck plaintiff was driving was hit in the left rear by another vehicle, causing the truck to rotate and then collide with the curb at the corner of the intersection, which knocked the right rear wheel off the truck. The truck then proceeded over the curb and struck a metal light pole. During the collisions, the windshield of the pickup truck popped out, and plaintiff, who was not wearing a seat belt, was ejected through the windshield opening and instantly rendered a quadriplegic.

In 1983, plaintiff brought an action against GMC, the truck dealer, and defendants, asserting theories of negligence and strict liability and seeking compensatory and punitive damages. GMC and the dealer each reached a settlement with plaintiff prior to the conclusion of the first trial in July 1986. The trial court did not instruct the jury on plaintiff's claim against defendants for strict liability, his claim for punitive damages was dismissed, and the jury, thereafter, found that defendants were negligent, but that their negligence was not a cause of plaintiff's injuries.

Plaintiff appealed the judgment entered in favor of defendants. A division of this court reversed the judgment and remanded the cause "for a new trial on all issues," including "the issue of liability and damages." Miller v. Solaglas California, Inc., (Colo.App. No. 86CA1213, September 8, 1988) (not selected for official publication). Plaintiff did not appeal the trial court's failure to instruct the jury on his strict liability claims.

Upon remand, based on new evidence offered by plaintiff, the trial court granted plaintiff's motion to amend his complaint to include claims of products liability and negligence. Following the second trial in January and February 1991, the jury found defendants liable on both negligence and strict liability theories. The jury failed to find any comparative fault on the part of plaintiff and awarded him $2.6 million for economic damages, $2.5 million for mental pain and suffering, and $1 million for punitive damages. Before entering judgment, the trial court offset the damages assessed by the jury by the amount of the prior settlements and then added prejudgment interest to the resulting verdict. Defendants now appeal the trial court's judgment, and plaintiff cross-appeals the calculation of interest.

I.

Defendants first contend that the trial court erred in denying their motion to dismiss plaintiff's strict liability claim because it is barred by the doctrine of res judicata. Plaintiff asserts that defendants waived the defense of res judicata and that, in any case, the doctrine does not apply under the circumstances at issue here. We agree with plaintiff that defendants waived the defense of res judicata.

The trial court granted plaintiff's motion to strike defendants' affirmative defense of "law of the case" on the grounds that, in the first trial, the trial court had not actually dismissed plaintiff's strict liability claim, but instead had merely instructed the jury only on the claim of negligence. And, applying Moore v. 1600 Downing Street, Ltd., 668 P.2d 16 (Colo.App.1983), the court reasoned that the rule of the law of the case is a discretionary rule of practice based on the policy that once an issue is decided that should be the end of the matter, but that it was inapplicable here since there was new evidence before the court. We perceive no abuse of discretion in that ruling.

On this appeal, defendants now assert for the first time that their affirmative defense of law of the case constituted sufficient notice to represent an assertion of, and to allow defendants to proceed with, the defense of res judicata.

In contrast to the concept of law of the case, the doctrine of res judicata provides that an existing final judgment on the merits is conclusive of the rights of the parties in a subsequent suit on the same claim as to all issues decided or that might have been decided. City & County of Denver v. Consolidated Ditches Co., 807 P.2d 23 (Colo.1991); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1974).

The Colorado Rules of Civil Procedure provide that res judicata is an affirmative defense to a claim of an opposing party and must be set forth affirmatively in a responsive pleading by the party relying on the defense. C.R.C.P. 8(C). Failure to plead an affirmative defense as required by C.R.C.P. 8(C), and failure to present evidence or argument on the matter in the trial court, precludes us from reviewing the issue. Crocker v. Colorado Department of Revenue, 652 P.2d 1067 (Colo.1982).

Here, defendants' answer to plaintiff's complaint failed to set forth the defense of res judicata and the trial court did not address the issue. Rather, the trial court confined its review to defendants' affirmative defense of law of the case, which is a significantly different affirmative defense than that of res judicata. See 1B Moore's Federal Practice, 0.404[4.3], at 131 (2d ed. 1991).

Under these circumstances, we decline to reverse the trial court's denial of defendants' motion to dismiss plaintiff's products liability claim on this ground because defendants have waived their right to assert this claim on review. See Crocker v. Colorado Department of Revenue, supra.

II.

Defendants next contend that the trial court erred in denying their motion for directed verdict as to plaintiff's product liability claim. The motion was based on their arguments that Solaglas did not manufacture or sell a "windshield retention system," as described in the jury instructions. Rather, they argue, Solaglas merely installed a non-defective replacement windshield using components from the original windshield. We find no error.

A products liability action may be brought against a manufacturer or a seller of a product for injury, death, or property damage resulting from "the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product...." Section 13-21-401(2), C.R.S. (1987 Repl.Vol. 6A).

This doctrine of strict liability in tort imposes liability upon a manufacturer or seller for harm caused by a defective product which the manufacturer has placed into the stream of commerce without giving suitable and adequate warnings or instructions concerning the safe manner in which to use it. Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975); Johnston v. Amsted Industries, Inc., 830 P.2d 1141 (Colo.App.1992); Bailey v. Montgomery Ward & Co., 690 P.2d 1280 (Colo.App.1984). See also Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978) (manufacturer of component parts may be held liable for injuries to a consumer when they are expected to and do reach the consumer without substantial change in condition).

In addition, as to actions based upon strict liability, the following statutory provision applies:

No product liability action based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless said seller is also the manufacturer of said product or the manufacturer of the part thereof claimed to be defective. Nothing in this part 4 shall be construed to limit any other action from being brought against any seller of a product.

Section 13-21-402(1), C.R.S. (1987 Repl.Vol. 6A) (emphasis added).

The term "manufacturer," as used in § 13-21-402(1), is defined in § 13-21-401(1), C.R.S. (1987 Repl.Vol. 6A) as follows:

(1) 'Manufacturer' means a person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer. The term includes any seller who has actual knowledge of a defect in a product or a seller of a product who creates and furnishes a manufacturer with specifications relevant to the...