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King v. Volvo Excavators AB

Supreme Court of Connecticut

October 1, 2019

DONITA J. KING, EXECUTRIX (ESTATE OFDANIEL H. KING), ET AL.
v.
VOLVO EXCAVATORS AB, ET AL.

          Argued December 11, 2018

         Procedural History

         Action to recover damages for, inter alia, personal injuries resulting from an allegedly defective product, and for other relief, brought to the Superior Court in the judicial district of New London, where the court, Cole-Chu, J., granted the defendants’ motions for summary judgment and rendered judgment thereon, from which the plaintiffs appealed. Reversed in part; further proceedings.

          Ralph J. Monaco, with whom, on the brief, was Eric J. Garofano, for the appellants (plaintiffs).

          Francis H. LoCoco, pro hac vice, with whom, on the brief, was Mark J. Claflin, for the appellees (defendants).

          Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.

          OPINION

          MULLINS, J.

         The plaintiff, Donita J. King, individually and as executrix of the estate of Daniel H. King (decedent), appeals from the judgment of the trial court in favor of the defendants Volvo Group North America, LLC (VGNA), Volvo Construction Equipment North America, LLC (VCENA), and Tyler Equipment Corporation (Tyler Equipment), [1] on claims arising from a workplace accident in which the bucket of an excavator became dislodged and fell on the decedent, causing fatal injuries. On appeal, the plaintiff asserts that the trial court improperly granted the defendants’ motions for summary judgment. The plaintiff’s primary claim on appeal is that the statute of repose applied to her product liability claims, General Statutes (Rev. to 2015) § 52-577a, is unconstitutional because it creates two classes of claimants-employees who are subject to a ten year statute of repose and nonemployees who are not subject to the ten year statute of repose if the claimant can show that the product was within its useful safe life when the injury occurred. While the defendants’ motions for summary judgment were pending before the trial court, the legislature enacted Number 17-97 of the 2017 Public Acts (P.A. 17-97), which combined those two classes of claimants by removing the limitations provision applicable to employees. In its decision on the motions for summary judgment, the trial court concluded that P.A. 17-97 was not retroactive and applied the statute of repose applicable to employees to bar the plaintiff’s claims.

         We conclude that the trial court improperly rendered judgment in favor of the defendants because the amendment to the statute of repose in P.A. 17-97 retroactively applied to the plaintiff’s claims. As a result, we need not address the plaintiff’s claim on appeal that General Statutes (Rev. to 2015) § 52-577a is unconstitutional. Instead, we conclude that the trial court must consider whether there is a genuine issue of material fact as to whether the injury occurred during the useful safe life of the product.[2]

         The following facts and procedural history are relevant to this appeal. The decedent was an employee of King Construction, Inc. (King Construction). On May 30, 2014, the decedent was installing a public water main at a construction site in Windsor. The decedent’s coworker was operating a Volvo model EC340 excavator (excavator), and the decedent was in a trench helping to fill sand on top of a recently installed pipe. As the operator attempted to dump the sand over the water main pipe, the bucket detached from a ‘‘quick fit’’ attachment on the excavator and fell on the decedent, resulting in fatal injuries.

         The excavator was designed and manufactured in 1997 and distributed by VCENA in December, 1997. VCENA originally distributed the excavator to L.B. Smith, Inc. Eventually, Tyler Equipment acquired the excavator. Thereafter, on June 25, 1999, Tyler Equipment sold the excavator to King Construction. On August 17, 1999, while the excavator was still in the possession of Tyler Equipment, Bruce Tuper, a service employee at Tyler Equipment, installed a hydraulic quick fit attachment on the excavator’s arm. On September 22, 1999, Tyler Equipment delivered the excavator to King Construction.

         On November 19, 1999, King Construction enrolled the excavator in Volvo’s component assurance program. The component assurance program is an extended warranty, which covers certain aspects of the machine, including the quick fit attachment. The extended warranty period expired after either twenty-four months or 4000 hours, whichever occurred earlier. Therefore, the extended warranty expired no later than November 19, 2001. Under the terms of the extended warranty, Tyler Equipment performed all warranty repair work. Tyler Equipment performed the last repair work under the extended warranty on May 11, 2001, during which time it serviced the power controls and gearbox. The excavator was not repaired by VGNA or VCENA at any point in time.

         On September 4, 2015, the plaintiff filed the present action against the defendants. Specifically, in count one of the operative complaint, [3] the plaintiff alleged that the Volvo defendants are ‘‘liable and legally responsible for the injuries and damages to the plaintiff and the death [of] the decedent by virtue of [the Connecticut Product Liability Act (act), General Statutes] § 52-572m et seq. . . .’’ In count two, the plaintiff alleged that Tyler Equipment is ‘‘liable and legally responsible for the injuries and damages to the plaintiff and the death [of] the decedent by virtue of [the act] . . . .’’ In counts three and four, the plaintiff further alleged that the defendants’ actions caused her to suffer a loss of spousal consortium. After discovery, the defendants filed motions for summary judgment, and the plaintiff filed objections.[4]

         As grounds for its motion for summary judgment, the Volvo defendants asserted that the plaintiff’s claims under the act were barred by the applicable statute of repose. Specifically, the Volvo defendants asserted that General Statutes (Rev. to 2015) § 52-577a[5] provides that no product liability action may be brought against any party later than ten years from the date that the party last parted with possession or control of the product. In ruling on that motion, the trial court concluded that there was no genuine issue of material fact as to whether VGNA ever had possession or control of the excavator or quick fit attachment. The trial court further concluded that there was no genuine issue of material fact as to whether VCENA possessed or controlled the excavator or quick fit attachment after the expiration of the extended ...


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