Opinion
KNLCV156024935S
11-17-2017
Michael DZURNAK et al. v. CRD METAL WORKS, LLC et al.
UNPUBLISHED OPINION
OPINION
Bates, J.
FACTS
This action arises out of an injury from an allegedly defective product. On February 26, 2017, the plaintiff, Michael Dzurnak, filed a three-count amended complaint against the defendants CRD Metals Works, LLC, (CRD), Stanton Equipment, Inc., (referred to herein as the defendant or Stanton), and Sheffield Plastics, Inc., which now operates as Covestro, LLC (Covestro). The plaintiff brought all counts pursuant to General Statutes § 52-572n of the Connecticut Products Liability Act.
Covestro is no longer a party in this action.
Count one asserts a claim against CRD. The plaintiff alleges that on September 14, 2013, he sustained multiple injuries while operating a CRD Woodbine Pro 20 (hereinafter sometimes referred to as the product), a firewood processing machine. The product was manufactured by CRD and purchased from the defendant. In support of his claim, the plaintiff alleges that CRD and the defendant manufactured, designed, assembled, distributed and sold a defective product, and failed to provide adequate warnings or instructions on how to operate it. The plaintiff repeats and re-alleges the same allegations in count two, which asserts a claim against the defendant. Count two specifically alleges that the defendant failed to recall the product or make post-sale modifications, and breached express warranties and implied warranties of merchantability.
On June 30, 2017, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact that it is not a product seller under General Statutes § 52-572m(a) and, therefore, is entitled to judgment as a matter of law. The defendant’s motion is accompanied by deposition transcripts of the plaintiff, Christopher Duval, the owner of CRD, and Paul Benoit, the defendant’s deliveryman. On August 31, 2017, the plaintiff filed an objection to defendant’s motion, which is also accompanied by deposition transcripts, an invoice of the sale between the defendant and CRD, a check, and an invoice of the sale between the defendant and the plaintiff. The court heard oral arguments on October 16, 2017.
ANALYSIS
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Citation omitted; footnote omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The defendant contends that it is not a " product seller" as defined by the Connecticut Product Liability Act because it did not manufacture the product, it is not engaged in the business of selling such products, and it merely provided financing. In support of its motion, the defendant relies on the plaintiff’s deposition testimony that he retained the defendant to finance the product and did not rely on the defendant to purchase it. It further cites the deposition to establish that the plaintiff researched the product on his own and personally went to CRD’s facility to view it. The defendant also points out that in his deposition the plaintiff conceded that the defendant had not provided any instructions or manuals to the plaintiff.
In support of its motion, the defendant also cited the deposition testimony of Christopher Duval, the owner of CRD. The defendant particularly cited Duval’s testimony that CRD did not manufacture, design or assemble the product, nor did it advertise the product. Further, Duval’s deposition also confirmed that CRD did not provide manuals or warning labels to the plaintiff.
The defendant also relies on the deposition of its delivery man, Paul Benoit, in which he said that he simply delivered the product to the plaintiff’s home and that he did not instruct the plaintiff on how to operate the product. He also stated that he did not receive any instructions regarding the product.
In support of its motion to dismiss, Stanton particularly relies on the holdings of Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65 (1990) and Svege v. Mercedes-Benz Credit Corp.
In response, the plaintiff asserts that Stanton is a product seller because of the role it played in the chain of distribution. The plaintiff specifically contends that: (1) the defendant purchased the product from CRD and sold it for a profit, (2) the sale was the predominant purpose of the transaction, (3) the defendant was engaged in the business of selling such products, including landscaping and farm equipment and machinery, (4) the parties had a prior relationship in which the plaintiff purchased tractors and wood chippers, and that (5) the defendant subsequently sold a similar product to another customer.
Products Liability Claim
A plaintiff may assert a products liability claim under the Connecticut Products Liability Act (CPLA) " in lieu of all other claims against product sellers." General Statutes § 52-572n(a). The CPLA provides the " exclusive remedy for all claims" against product sellers. Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 73, 579 A.2d 26 (1990). Section 52-572m(a) defines a " product seller" as " any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." The term product seller has also been defined to include " all parties in the regular chain of distribution and where a sale of a product is a principal part of the transaction and ... the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services." Draft Uniform Product Liability Law (Draft Act), 44 Fed.Reg. 3003 (1979). See Oliva v. Bristol-Myers Squibb, (D.Conn. 2005) (noting our Supreme Court looks to the Draft Act’s commentary for guidance " in applying CPLA sections similar to sections of the Draft Act"). Whether an entity is a " product seller" is a question of law. See Burkert v. Petrol Plus of Naugatuck, Inc., supra, 216 Conn. 72 (1990).
In Burkert, the Supreme Court held that a trademark licensor was not a product seller because its role was " unusually limited" to permit third parties to use its trademark. Id., 68. In so ruling, the Supreme Court considered several factors to determine whether the defendant was a product seller: " (1) whether the entity derived a substantial economic benefit from the sale of the product; (2) whether the entity participated in advertising, marketing or creating consumer demand for the product; (3) whether the entity took title to the product; and (4) the extent of the entity’s knowledge and control over the product." Delgadillo v. Unitrons Consolidated, Inc., 191 Fed.Appx. 547, 549 (9th Cir. 2006).
The court in Burkert held that none of these factors applied to the trademark licensor. It observed that the trademark licensor did not receive any royalty or financial benefit, did not promote or exercise control over the product, and was not a " manufacturer, wholesaler, distributor, retailer, lessor, or bailor of the defective [product] ... or otherwise engaged in business of selling the product." (Internal quotation marks omitted.) Id., 72. " Absent any further involvement in the stream of commerce, " the Burkert court held that the trademark licensor was not a seller under the CPLA. Id., 72.
Similarly, in Iragorri v. United Technologies Corp., 285 F.Supp.2d 230 (2003), the district court held that the defendant was not a product seller due to dearth of evidence regarding its involvement in the stream of commerce. In Iragorri, the decedent fell from an empty elevator shaft, which led to his death. See Iragorri v. United Technologies Corp., 285 F.Supp.2d 230, 233 (D.Conn. 2003). The defective elevator was designed and manufactured by the defendant’s subsidiary, a Brazil corporation, and sold to a third party. See id., 235. The decedent’s estate argued that the defendant was a product seller because it managed and controlled its subsidiary’s operations. Id. Relying on the holding in Burkert, supra, the court found no evidence to support that the defendant placed the defective elevator in the stream of commerce because it did not manufacture, distribute, market or sell it. See id., 236-37.
However, the district court in Svege v. Mercedes -Benz Credit Corp., 329 F.Supp.2d 272, 280 (D.Conn. 2004), using the same reasoning as was applied in Burkert and Iragorri, found that a finance lessor was a product seller. In a case involving an allegedly defective truck, the defendant in Sverge moved for summary judgment on the ground that it was not a product seller due to its limited role in vehicle financing. The district court began its analysis by observing that Burkert stood for the proposition that " whether an entity is sufficiently involved in the stream of commerce of product to be a ‘product seller’ under the CPLA requires a fact-intensive, case-by-case assessment." Svege v. Mercedes -Benz Credit Corp., 329 F.Supp.2d 272, 280 (D.Conn. 2004).
The court then observed that the criteria in Burkert applied equally to other cases besides trademark licensing. Id. Utilizing the factors considered in Burkert, the court noted that the defendant did not merely provide vehicle financing. The district court found that " [the defendant’s] critical role in developing a program to finance inventory to dealer showrooms, to promote dealer sales of ... trucks to end users through programs like the Success Program, to finance trucks at retail for buyers, as well as its taking title owner and lessor status of all trucks for which it provides retail financing before the lessee is permitted to use the truck, taken collectively lead [it] to conclude that [the defendant’s] role in putting ... trucks into the stream of commerce [was] sufficiently developed and pervasive to justify concluding [that the defendant] [was] a " product seller" for purposes of the CPLA." Id., 281. In so holding, the district court noted that it was important to consider the overall facts and circumstances of the case. See Svege v. Mercedes-Benz Credit Corp., supra, 329 F.Supp.2d 282 n. 9 (" [the defendant’s] inventory financing cannot be viewed in isolation, but must rather under Burkert, be seen as a part of the overall facts and circumstances evincing [the defendant’s] significant role in placing the ... trucks into the stream of commerce").
In considering these authorities, this court also has recognized that " [w]hen a Connecticut court is reviewing the principles governing a products liability action, it considers, inter alia, the legal principles set forth by the American Law Institute in the Restatement of Torts. See, e.g., Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 131, 25 A.3d 571 (2011). According to the Restatement (Third), Torts, Products Liability § 20, p. 284 (1998), ‘One Who Sells or Otherwise Distributes, ’ in the context of commercial product sellers, ‘(a) include, but are not limited to, manufacturers, wholesalers, and, retailers.’ Subsection (b) further provides that one ‘distributes a product when, in a commercial transaction other than a sale, one provides the product to another either for use or consumption or as a preliminary step leading to ultimate use or consumption.’ Finally, subsection (c) states that ‘[o]ne also sells or otherwise distributes a product when, in a commercial transaction, one provides a combination of products and services and either the transaction taken as a whole, or the product component thereof, satisfies the criteria in Subsection (a) or (b).’ " (Internal quotation marks omitted.) Mazzaia v. A.O. Smith Corp., Superior Court, judicial district of Fairfield, Docket No. CV-11-5029478-S (November 29, 2012, Bellis, J.).
Based on the authorities cited above, this court finds that Stanton has failed to meet its burden. Comparatively, the seller’s involvement in the present case is less substantial than the defendant’s sales role in Sverge but it is considerably more substantial than the sellers’ roles in Burkert and Iragorri in that the defendant in this case obtained a substantial economic benefit and title to the product. The invoice between the defendant and the plaintiff shows that Stanton bought the product for $42,190 and, thereafter, sold it to the plaintiff for $47,190. The defendant obtained title through the purchase and in turn, received a $5,000 profit. In addition, notwithstanding the fact that the defendant did not exclusively sell the product at issue, the plaintiff testified that he had purchased similar products from the defendant in the past, which included tractors and wood chippers. Also Mr. Benoit, the delivery man, testified that he delivered a similar product to another customer in Rhode Island subsequent to the delivery to the plaintiff.
Based on the cases and analysis above, particularly the analysis of the factors cited in the Burkert case, this court finds that the defendant, Stanton, has failed to establish that it was not a " product seller." Accordingly, the defendant’s Motion for Summary Judgment is denied.