Virgin v. Fireworks of Tilton, LLC

• Decision Date: 06 August 2019
• Docket Number: No. 2018-0526,2018-0526
• Parties: James M. VIRGIN v. FIREWORKS OF TILTON, LLC & a.
• Court: New Hampshire Supreme Court

172 N.H. 484

215 A.3d 892

James M. VIRGIN

v.FIREWORKS OF TILTON, LLC & a.

No. 2018-0526

Supreme Court of New Hampshire.

Argued: June 6, 2019

Opinion Issued: August 6, 2019

Hamblett & Kerrigan, P.A., of Nashua (J. Daniel Marr and Andrew J. Piela, Nashua, on the brief, and Mr. Marr orally), for the plaintiff.

Wadleigh, Starr & Peters, PLLC, of Manchester (Joseph G. Mattson, Manchester, and Stephen Zaharias on the brief, and Mr. Zaharias orally), for defendant Fireworks of Tilton, LLC.

Devine, Millimet & Branch, P.A., of Manchester (Jonathan M. Eck, Manchester, on the brief), and Brooke | Stevens, P.C., of Muncie, Indiana (John H. Brooke and John Stevens on the brief, and Mr. Brooke orally), for defendant Foursquare Imports, LLC d/b/a AAH Fireworks, LLC.

LYNN, C.J.

In this interlocutory appeal from the Superior Court (O'Neill, J.), we are asked to determine whether RSA 507:7-e (2010) applies to claims for personal injuries that allege a breach of the implied warranty of merchantability under RSA 382-A:2-314 (2011), thus permitting a named defendant to apportion fault to a non-litigant. We answer the question in the negative and remand.

The relevant facts recited in the interlocutory appeal statement are as follows. On March 24, 2016, the plaintiff, James M. Virgin, filed the instant action seeking compensation for personal injuries against the defendants, Fireworks of Tilton, LLC (Fireworks of Tilton) and Foursquare Imports, LLC d/b/a AAH Fireworks, LLC (Foursquare). As pertinent to this appeal, the complaint alleges breach of the implied warranty of merchantability for damages purportedly sustained as a result of an incident involving fireworks sold by Fireworks of Tilton, and distributed by Foursquare. On May 10, 2017, Foursquare made a DeBenedetto disclosure pursuant to the case structuring order identifying a Chinese company as the manufacturer of the fireworks that allegedly caused the plaintiff's injuries. See DeBenedetto v. CLD Consulting Eng'rs, 153 N.H. 793, 803-04, 903 A.2d 969 (2006) ; see also State v. Exxon Mobil Corp., 168 N.H. 211, 259, 126 A.3d 266 (2015) ("Pursuant to RSA 507:7-e and DeBenedetto, defendants may ask a jury to shift or apportion fault from themselves to other nonparties in a case."). The plaintiff moved to strike the disclosure arguing, among other things, that apportionment of fault does not apply to breach of warranty claims. The trial court denied the motion, but later granted the plaintiff's request to file an interlocutory appeal, which we accepted. See Sup. Ct. R. 8.

RSA 507:7-e, I, provides:

In all actions, the court shall:

(a) Instruct the jury to determine, or if there is no jury shall find, the amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties; and

(b) Enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him.

(c) RSA 507:7-e, I(b) notwithstanding, in all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, grant judgment against all such parties on the basis of the rules of joint and several liability.

RSA 507:7-e, I. The defendants argue that the phrase "in all actions" plainly shows that the statute is intended to cover all actions and not just those sounding in tort. The plaintiff posits that, taken as a whole, the statute was intended to cover only tort actions, and argues that this interpretation comports with New Hampshire jurisprudence recognizing the distinction between tort and contract actions.

"Resolving this issue requires us to engage in statutory interpretation, and, therefore, our review is de novo." N.H. Housing Fin. Auth. v. Pinewood Estates Condo. Ass'n, 169 N.H. 378, 382, 149 A.3d 282 (2016). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Olson v. Town of Grafton, 168 N.H. 563, 566, 133 A.3d 270 (2016). We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Zorn v. Demetri, 158 N.H. 437, 438, 969 A.2d 464 (2009). We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Id. at 438-39, 969 A.2d 464. This construction enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. at 439, 969 A.2d 464.

" RSA 507:7-e was enacted in 1986 as part of the legislature's unified and comprehensive approach to comparative fault, apportionment of damages, and contribution." Ocasio v. Fed. Express Corp., 162 N.H. 436, 442, 33 A.3d 1139 (2011) (quotation omitted). "The ‘Act Relative to Tort Reform and Insurance,’ Laws 1986, 227:2, closely modeled the Uniform Comparative Fault Act, 12 U.L.A. 38-49 (Supp. 1987), in its treatment of comparative fault and apportionment of damages." Id. (quotation omitted). "As originally enacted in 1986, RSA 507:7-e required that judgment be entered against ‘each party liable’ on the basis of joint and several liability." DeBenedetto, 153 N.H. at 798, 903 A.2d 969 (quotation omitted). In 1989, the legislature amended the statute by adopting a several liability approach "for those parties less than 50 percent at fault," after rejecting the initial proposal to create a pure several liability scheme that would have provided that defendants in a personal injury action "could only be held liable for their percentage of the damages." Id. at 799, 903 A.2d 969 (quotations omitted). In Nilsson v. Bierman, 150 N.H. 393, 839 A.2d 25 (2003), we held that for purposes of apportionment under the statute, the term "parties" included settling parties. Id. at 396, 839 A.2d 25. In DeBenedetto, we further concluded that the term "parties" included not only settling parties, but extended "to all parties contributing to the occurrence giving rise to an action, including those immune from liability or otherwise not before the court." DeBenedetto, 153 N.H. at 804, 903 A.2d 969.

Thus, while we have addressed the scope of RSA 507:7-e with regards to named and unnamed parties in a personal injury action, we have not had the occasion to consider the question before us in this appeal: whether the statute extends to breach of warranty actions. Relying on the statute's use of the phrase "in all actions," the defendants contend that the statute clearly extends to contract claims. In the defendants' view, had the legislature desired to limit the statutory scope to tort actions, it would have done so explicitly. The defendants' interpretation, however, reads the statute in isolation and neglects to consider the statutory scheme as a whole. See Zorn, 158 N.H. at 438-39, 969 A.2d 464. Indeed, when we have considered the statute in its entirety, we have concluded that it applies only to tort actions.

In Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 529 A.2d 875 (1987), we were asked to consider the meaning of the phrase "causes of action," as used in the newly enacted tort reform statute, Laws 1986, 227:2, to determine whether the case would be governed by the statute or the common law. Id. at 343, 529 A.2d 875. In that case, the plaintiff sued Jaswell "for negligence, breach of contract, and breach of warranty for damages allegedly arising from the purchase and operation of a Jaswell drilling rig." Id. Jaswell filed a third-party complaint against General Motors Corporation, alleging that any damages sustained by the plaintiff were directly attributable to a defective component part supplied by General Motors. Id. The trial court dismissed Jaswell's third-party claim against General Motors because the "claim was actually an action for contribution," id. (quotation omitted), and the "traditional common-law rule prohibit[ed] contribution, a partial shifting of liability, among joint tortfeasors," Consol. Util. Equipment Serv's, Inc. v. Emhart Mfg. Corp., 123 N.H. 258, 260, 459 A.2d 287 (1983). After the trial court's decision, and while the case was pending on appeal, the legislature enacted The Act Relative to Tort Reform and Insurance, which superseded the common law, adopted "the rule of contribution among tortfeasors and allow[ed] apportionment of damages," and applied " ‘to causes of actions arising on or after July 1, 1986.’ " Jaswell Drill Corp., 129 N.H. at 343, 529 A.2d 875 (quoting Laws 1986, 227:22). Contrary to Fireworks of Tilton's assertion, the specific question before us in Jaswell Drill Corp. was limited in scope: that is, whether the phrase "causes of action" should be construed as referring to causes of action for contribution or to the underlying causes of action in tort. Id. If "causes of action" included those for contribution, Jaswell's claim could proceed; if not, the trial court's decision was correct. Id. After considering the phrase "in conjunction with section 2 of the Act, codified as RSA 507:7-d to - i," we concluded that it was "clear that ‘causes of action’ refers to causes of action sounding in tort." Id. at 345, 529 A.2d 875. The statute, therefore, did not apply, and Jaswell's claim for contribution was barred by the common law. Id. at 345-46, 529 A.2d 875. We noted, however, that there existed the possibility that "Jaswell w[ould] be found liable for breach of warranty ......