Opinion
No. X04 CV 04 4001319 S
November 30, 2007
MEMORANDUM OF DECISION
Nine consolidated cases have arisen from an explosion at a facility of Pfizer, Inc., in Groton, Connecticut, on June 25, 2002. Four individual plaintiffs have brought actions against Mine Safety Appliances Company ("Mine Safety"), which supplied to Pfizer a number of cylinders containing a chemical reagent referred to as 2M BTHF. The actions against Mine Safety sound in product liability. Each of the plaintiffs has brought a separate claim against Onyx Environmental Services, LLC ("Onyx"), which claims sound in negligence and recklessness. Onyx allegedly made decisions and provided advice to Pfizer regarding the storage of the chemical at Pfizer. In the product liability actions against it, Mine Safety has impleaded Onyx and seeks in one count contribution and in another, indemnity. Finally, Pfizer has brought an action for property damage against Mine Safety, but not against Onyx. In the Pfizer action, Mine Safety has impleaded Onyx for contribution and indemnification.
Several other parties were defendants. The actions against them have been withdrawn.
Pfizer has also intervened for the purpose of seeking recovery of workers' compensation payments in the actions brought by the individual employees.
A series of motions for summary judgment has been filed by Onyx. The fundamental claims are that (1) the claims for indemnification and contribution, made by Mine Safety, are not legally viable in the context of a product liability action; (2) there is no evidence supporting such claims; (3) the negligence claims brought by the individual plaintiffs are barred by the applicable statutes of limitations; and (4) there is no evidence supporting claims based on negligence and recklessness. The parties have, as a rule, submitted memoranda in only one case and have incorporated those into the other cases. I shall do the same: this memorandum will address claims (1) and (2) and will be incorporated into other cases as appropriate. A separate memorandum will address the issues arising in the first-party context.
I
I first address the claims regarding the pleadings: Mine Safety, sued by the individual plaintiffs in a products liability action, has brought third-party actions against Onyx. The third-party actions comprise two counts in each case: the first seeks contribution, apparently pursuant to General Statutes § 52-572o, and the second seeks common-law indemnification. Onyx has moved for summary judgment as to each count.
The first item for consideration is whether a product seller who has been made a defendant by an allegedly injured plaintiff may implead for contribution a party who is not a product seller and is, in effect, outside of the product's stream of commerce. Onyx argues that the procedure for adding parties for the purpose of contribution is governed strictly by statute, General Statutes § 52-572o. This section contemplates an action by a product seller against another for contribution after the product seller has discharged or agreed to discharge the common liability: the action contemplates recovering from the other a proportionate share of the damages. It is agreed that the condition precedent for proceeding under § 52-572r has not been satisfied.
Mine Safety argues, however, that contribution actions are legally viable even if not brought strictly pursuant to § 52-572o. It relies principally on Malerba v. Cessna Aircraft Co., 210 Conn. 189 (1989). In Malerba, a plaintiff brought a product liability action against Cessna. Cessna brought a third-party complaint against the owner of the aircraft and a mechanic. The third-party complaints claimed contribution and indemnity and apparently were not based on product liability theories. The trial court struck the third-party actions, on the grounds that the contribution action was not brought pursuant to § 52-572o and that indemnification actions had been abrogated by the Products Liability Act, General Statutes § 52-572m et seq. The Supreme Court reversed the trial court. The Supreme Court reasoned that several statutory provisions, §§ 52-572o, 52-577a and 52-102a, should be read harmoniously. Section 52-577a(b) provides that "a product seller may implead any third party who is or may be liable for all or part of the claimant's claim . . ." (Emphasis added.) If § 52-572o is construed so that it applies only to claims brought in a separate cause of action, then the sections may be read consistently. In any event, the Supreme Court held, in a factual context much like the present one, that it was permissible for a defendant in a product liability action to bring a third-party action for contribution against a party other than a product seller. Although Onyx suggests that there have been statutory changes in tort reform since Malerba was decided and that certain arguments weren't raised in Malerba, I hold that I am bound by its dictates. The motion to grant summary judgment on the contribution issue is denied.
Malerba also disposes of the argument regarding indemnification. Onyx claims that Kyrtatas v. Stop Shop, Inc., 205 Conn. 694 (1988), governs and the indemnification claim must fail. Kyrtatas, however, held that because of the specific scheme of comparative responsibility mandated in the product liability act, indemnification actions brought by cross claim among product seller defendants were barred. Malerba, allowing indemnification actions by product liability defendants against non-product sellers, specifically noted that Kyrtatas was limited to its procedural posture, and that not all indemnification actions were barred by Kyrtatas. Malerba, supra, 198 n. 9. Malerba concluded by holding (at 198-99):
Based on the implicit language of the foregoing statutes, we conclude that common law indemnification continues as a viable cause of action in the context of product liability claims and that the comparative responsibility principles that serve as its foundation do not bar a later determination of liability as between an indemnitee and an indemnitor.
The motion for summary judgment, insofar as it claims that the indemnification and contribution claims are legally impossible, is denied.
I am aware that Smith v. Dynamic Cooking Systems, Inc., 49 Conn.Sup. 394 (2005) (Sheedy, J.), may appear to be superficially inconsistent with the holding in this case. In practice, there may be no inconsistency. Judge Sheedy was concerned, in part, with the problems created by the third-party defendant, sued in contribution and indemnity, also being a first-party defendant. Some of the difficulties inherent in Kyrtatas are then presented. If the putative indemnitor is already in the case as a first-party defendant, then does the prohibition of "internal" indemnification actions properly bar the third-party indemnification action? Judge Sheedy believed it did. I respectfully am not entirely so persuaded, because Onyx's status as an entity other than a product seller suggests that it is not an "internal" defendant within the stream of commerce, but rather is outside the chain of product sellers and is not sued in product liability. Kyrtatas factually considered only the question of whether indemnification was appropriate by means of cross claims between product sellers.
At oral argument, the parties appeared mostly concerned with the possibility that this court might enter judgment in favor of Onyx as a first-party defendant because of statute of limitation, and other, issues. Instead, I have not granted those motions, and Onyx is a first-party defendant as well, but in consolidated cases.
What to do? I suggest that if the case is tried, the logical difficulties can be reconciled by appropriate jury interrogatories. And, in any event, Onyx is not a first-party defendant in the case brought by Pfizer. At any rate, the third-party cases against Onyx survive summary judgment.
II
Onyx raises the second argument that even if pleading requirements are logically satisfied, the indemnification claims against Onyx must fail because there is no evidence that Onyx was in exclusive control of the situation or the condition causing danger. The elements of a common-law indemnification are: (1) the putative indemnitor was negligent; (2) that negligence rather than the negligence with which the indemnitee is charged was the direct and immediate cause of the accident; (3) the indemnitor was in charge of the situation to the exclusion of the indemnitee; and (4) the indemnitee did not know of the indemnitor's negligence, had no reason to anticipate it and could reasonably rely on the indemnitor not to be negligent. Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 416 (1965). As noted by Onyx, the question of exclusive control is ordinarily one of fact; see Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573 (1982); but if there is no genuine issue of fact, summary judgment is appropriate, and, in some situations, judgment may be entered if on the state of the pleadings recovery is impossible. Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 705 (1997).
Onyx makes two arguments: first, Onyx asserts that one whose liability is based on a product defect can never successfully assert a common-law indemnification claim against one who is arguably negligent for subsequent handling of the product. And second, Onyx claims that there is no factual basis for the claim, because it was Pfizer rather than Onyx who decided where to store the chemical.
In support of the first claim, Onyx refers to Unicore, Inc. v. Tennessee Valley Authority, 768 F.2d 109, 114 (6th Cir. 1985), cited with approval in Skuzinski, supra. Unicore was cited for the proposition that "exclusive control of the situation" may be read, in the factual situation presented, as exclusive control over the dangerous condition that gave rise to the accident. Skuzinski, supra, 706. In Unicore, an employer allegedly responsible for ventilation apparently was held not to be liable in indemnification to a product seller of welding materials which caused injury. Especially in light of Malerba, it is something of a stretch to read Skuzinski to hold that a party who is negligent, but not part of the product chain, can never be in exclusive control of a dangerous condition. It seems more appropriate to examine the facts of the particular situation.
Onyx, appropriately, argues that the facts of this situation compel the conclusion that Pfizer directed where the chemical was to be stored and that, therefore, Onyx could not have been in exclusive control of the situation. Onyx relies particularly on deposition testimony of Dr. Ripin, the Pfizer employee. As noted in this court's companion memorandum, other parties have introduced evidence tending to show that the decision was made by Onyx's employee Radicioni. Among other factual items raised by Mine Safety, not only is there dispute as to the decision to store, but there also are genuine issues of fact regarding Onyx's alleged role as an expert consultant and the "Onyx book." Though exclusive control may be difficult to prove, I believe that, as in the other memorandum, it is not appropriate to make this factual determination on summary judgment, when issues of fact exist.
The motion for summary judgment is denied.
This memorandum of decision is intended to govern Onyx's motions for summary judgment brought in Karlson v. Mine Safety Appliances Co., No. X04 CV 04 4001302; Patterson v. Mine Safety Appliances Co., No. X04 CV 04 4001303; Smolen v. Mine Safety Appliances Co., No. X04 CV 044001304; Foular v. Mine Safety Appliances Co., No. X04 CV 044001319; and Pfizer, Inc. v. Mine Safety Appliances Co., No. X04 CV 044001305.