Stevers v. E.T. & H.K. Ide Co., Inc., 85-545

• Citation: 527 A.2d 658,148 Vt. 12
• Decision Date: 27 February 1987
• Docket Number: No. 85-545,85-545
• Court: United States State Supreme Court of Vermont
• Parties: , Prod.Liab.Rep. (CCH) P 11,483 Melvin J. STEVERS v. E.T. & H.K. IDE CO., INC. v. EASTERN CROWN, INC. v. ROCKLAND CHEMICAL CO., INC.

Page 658

527 A.2d 658

148 Vt. 12, Prod.Liab.Rep. (CCH) P 11,483

Melvin J. STEVERS v. E.T. & H.K. IDE CO., INC. v. EASTERN CROWN, INC. v. ROCKLAND CHEMICAL CO., INC.

No. 85-545.

Supreme Court of Vermont.

Feb. 27, 1987.

Richard E. Davis and Carolyn Tonelli of Richard E. Davis Associates, Inc., Barre, for plaintiff-appellant.

Richard A. Axelrod and Steven A. Adler of Gensburg & Axelrod, St. Johnsbury, for defendant-appellee E.T. & H.K. Ide Co.

Paul R. Bowles of Paul, Frank & Collins, Inc., Burlington, for defendant-appellee Eastern Crown, Inc.

George A. Holoch, Jr., and Robert R. McKearin of Dinse, Erdmann & Clapp, Burlington, for defendant-appellee Rockland Chemical Co.

Before BARNEY, C.J. (Ret.), KEYSER, J. (Ret.), MARTIN, Superior Judge, and COSTELLO, District Judge (Ret.), Specially Assigned.

PER CURIAM.

Plaintiff appeals from a summary judgment dismissing his complaint as untimely under the Vermont statute of limitations. We affirm.

Plaintiff purchased an insecticide from defendant on August 26, 1980, asserting that he did so under the representation that the insecticide was safe for spraying animals. Plaintiff used the product in his barn and thereafter claimed that it killed one cow and caused damage to others, with resultant losses and expenses. Defendant E.T. & H.K. Ide, Inc. sued the distributor, Eastern Crown, Inc. as a third-party defendant, which in turn joined the manufacturer, Rockland Chemical Company, Inc. as a third-party defendant.

In December, 1980 plaintiff retained counsel and brought an action in the federal district court in Vermont. That case was dismissed by stipulation on July 21, 1981. The present action was brought in December, 1984, some four and one-half years after he purchased, used, and was allegedly damaged by the product. Defendants moved for summary judgment under V.R.C.P. 56, contending that the facts alleged fell within the parameters of 12 V.S.A. § 512(5), which states:

Actions for the following causes shall be commenced within three years after the cause of action accrues, and not after:

....

(5) Damage to personal property suffered by the act or default of another.

Plaintiff, however, asserts that the complaint sounded in fraud and should be governed by the provisions of 12 V.S.A. § 511, which allows a six-year limitations period.

The trial court, relying on Kinney v. Goodyear Tire & Rubber Co., 134 Vt. 571, 367 A.2d 677 (1976), correctly concluded that the nature of the harm done is the determining factor in construing the two limitations provisions, rather than the plaintiff...