Persichini v. Brad Ragan, Inc.
| Decision Date | 06 April 1987 |
| Docket Number | No. 85SA113,85SA113 |
| Citation | 735 P.2d 168 |
| Court | Colorado Supreme Court |
| Parties | , 4 UCC Rep.Serv.2d 96, Prod.Liab.Rep. (CCH) P 11,419 Roger L. PERSICHINI, Plaintiff-Appellant, v. BRAD RAGAN, INC., a North Carolina corporation, d/b/a C & C Tire Division, Defendant and Third-Party Plaintiff-Appellee, v. GOODYEAR TIRE AND RUBBER CO., Third-Party Defendant-Appellee. |
Hall & Evans, L. Richard Musat, Alan Epstein, Denver, Williams, Trine, Greenstein, David W. Griffith, Boulder, for plaintiff-appellant.
Pryor, Carney & Johnson, P.C., Christopher N. Mammel, Englewood, for defendant and third-party plaintiff-appellee.
White and Steele, P.C., James M. Dieterich, John M. Palmeri, Denver, for third-party defendant-appellee.
Roger Persichini, the plaintiff-appellant, appeals from a summary judgment entered in favor of Brad Ragan, Inc. (Brad Ragan), the defendant-appellee. 1 The court granted the motion for summary judgment on the basis that Persichini's claim was time-barred under section 13-80-127.5(1), 6 C.R.S. (1985 Supp.), the product liability statute of limitations. We affirm the judgment.
On November 6, 1978, Persichini was a member of the tire crew at the Climax Molybdenum Company (Climax) in Lake County, Colorado, and was seriously injured when he was removing a 7,000-pound tire from heavy earthmoving equipment used in Climax's mining operations. On April 26, 1984, more than five years after the date of his injury, Persichini filed suit against Brad Ragan, a tire distributing company which supplied Climax the Goodyear tires used on the truck, a Unit Rig Lectra Haul M-120-17, involved in Persichini's accident. 2 The complaint alleged that Brad Ragan had furnished Climax with a safety-training film called "The Earth Movers," produced by Goodyear Tire and Rubber Company (Goodyear), to assist Climax personnel "in training Climax employees in proper procedures for changing and removing tires on the Unit Rig M-120 truck," but that the tire removal procedures depicted in the film were unsafe if applied to the Unit Rig truck on which Persichini was working at the time of the accident; that if Persichini had not been following the procedures depicted in the film, the accident would not have occurred; and that Brad Ragan was negligent in using the film to teach tire removal procedures without providing a warning that the procedures depicted in the film were unsafe when applied to the Unit Rig Lectra Haul M-120-17.
Brad Ragan denied liability, pled various affirmative defenses including the statute of limitations, and filed a third-party complaint against Goodyear, the producer of the film, for indemnity and contribution in the event it was found liable to Persichini. Brad Ragan and Goodyear thereafter moved for summary judgment on the basis that Persichini's claim was barred by the three-year limitation period of section 13-80-127.5(1), 6 C.R.S. (1985 Supp.), which applied to actions brought against manufacturers or sellers of products for personal injury caused by or resulting from the manufacture or sale of the product. In support of its summary judgment motion, Brad Ragan filed the affidavit of Charles Adams, its sales representative. Adams' affidavit, which was uncontroverted, stated that Brad Ragan was the major supplier of Goodyear tires to Climax for use in its mining operations; that Adams had conducted general instructional seminars at Climax in order to familiarize "first-line supervisors" with the various aspects of tire care and safety procedures; that on approximately three occasions he showed the film "The Earth Movers," which he borrowed from the Goodyear district office, in order to familiarize supervisory personnel with the functions of tire crews; and that "the only manner in which the film 'The Earth Movers' has been utilized by Brad Ragan has been in connection with distribution and sale of large earth mover tires to customers or prospective tire customers of Brad Ragan."
The district court entered summary judgment in favor of Brad Ragan and Goodyear, ruling that Persichini's action was a "product liability action" which was time-barred by section 13-80-127.5(1), 6 C.R.S. (1985 Supp.):
In examining the pleadings, the briefs, and the affidavits filed in this action it is clear to the court that the film was supplied to Climax in connection with its sale of tires. Ragan sold tires for large earth movers which had to be installed on earth moving equipment. Ragan provided a film which demonstrated the method to be used when putting its product on earth moving equipment. If that instruction was unsafe it was a "failure to warn" or a "failure to provide proper instruction" for the use of the tires it sold. Section 13-80-127.5, C.R.S., exhibits the legislature['s] clear intent to include actions such as that asserted by plaintiff in the instant case "regardless of the substantive legal theory or theories upon which the action is brought." Plaintiff's claims for relief were asserted more than three years after the incident giving rise to them and they are barred by section 13-80-127.5, C.R.S.
In appealing from the summary judgment, Persichini argues that his lawsuit against Brad Ragan is not "a product liability action" within the intendment of section 13-80-127.5(1) because the film "The Earth Movers" was not a "product" and, alternatively, because Brad Ragan was not a "seller." 3 He follows this argument with the claim that section 13-80-127.5(1), if applicable at all to this case, violates equal protection of the laws as guaranteed by the United States and Colorado Constitutions.
Before addressing the merits of Persichini's arguments, we briefly review the statutory scheme which establishes a limitation period for product liability actions. Section 13-21-401(2), 6 C.R.S. (1986 Supp.), which was enacted in 1977 as part of an act addressing various aspects of product liability litigation, ch. 199, sec. 2, § 13-21-401, 1977 Colo.Sess.Laws 819, 820, defines a "product liability action" as follows:
"Product liability action" means any action brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product.
This same definition is incorporated in the three-year statute of limitations in section 13-80-127.5(1), 6 C.R.S. (1985 Supp.), which also was enacted as part of the same 1977 act dealing with product liability, ch. 199, sec. 1, § 13-80-127.5, 1977 Colo.Sess.Laws 819, 819, and states:
Notwithstanding any other statutory provisions to the contrary, all actions except those governed by section 4-2-725, C.R.S., brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product shall be brought within three years after the claim for relief arises and not thereafter. 4
In keeping with the principle that it is the nature of the right sued upon and not necessarily the particular form of action or the precise character of the relief requested that ordinarily will determine the applicability of a particular statute of limitations to the case at issue, Schafer v. Aspen Skiing Corp., 742 F.2d 580, 582 (10th Cir.1984); Association of Owners, Satellite Apartment, Inc. v. Otte, 38 Colo.App. 12, 15, 550 P.2d 894, 896 (1976), sections 13-21-401(2) and 13-80-127.5(1) recognize that product liability actions may take many forms premised on any one or more of numerous legal theories, including, for example: the negligent design, manufacture, or labeling of a product, see Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978); strict liability in tort under section 402A of the Restatement (Second) of Torts (1965) for a defective product unreasonably dangerous to users by reason of a failure to provide directions or warnings as to its use, see Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975); and strict liability of a seller under section 402B of the Restatement (Second) of Torts (1965) for misrepresenting a material fact concerning the character or quality of a chattel sold by the seller, see American Safety Equipment Corp. v. Winkler, 640 P.2d 216 (Colo.1982). By incorporating into the three-year limitation period of section 13-80-127.5(1) the statutory definition of "product liability action" in section 13-21-401(2), and by expressly excluding from section 13-80-127.5(1) only those actions governed by the four-year period of limitations created by section 4-2-725 of the Uniform Commercial Code for breach of a sales contract, the legislature made manifest its intent to encompass all forms of product liability actions against manufacturers and sellers of products, other than the section 4-2-725 exclusion, within the three year limitation period "regardless of the substantive legal theory or theories upon which the action is brought."
In the absence of a clear expression of legislative intent to the contrary, a statute of limitations specifically addressing a particular class of cases will control over a more general or catch-all statute of limitations. See Schafer,...
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