Jene R. Moore et al. v. Arvin Industries, Inc. et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 317.00)

I

FACTS

On September 10, 2008, the plaintiffs, Jene R. Moore and Joyce J. Moore, filed their original complaint against various defendants.   Subsequently, on July 14, 2010, the plaintiffs filed their sixth amended complaint in three counts against various defendants, including Borg–Warner Corporation (Borg–Warner).   The complaint arises out of Jene Moore's alleged exposure to various asbestos-containing products while employed as a mechanic from the early 1950s through the late 1970s.   The Moores allege that, as a result of such exposure, Jene Moore contracted asbestos-related mesothelioma and other asbestos-related pathologies.   Count one alleges a claim under the Connecticut Product Liability Act, General Statutes § 52–572m, et seq., and the second count alleges a loss of consortium on behalf of Joyce Moore.   In count three, the Moores claim that the defendants' conduct was grossly negligent, wilful, wanton, malicious and/or outrageous, because, although the defendants were in possession of medical and scientific data studies and reports establishing the hazards of asbestos, they failed to acknowledge or publish such information.

The defendant, Borg–Warner, filed a motion for summary judgment on July 5, 2011, accompanied by a memorandum of law and numerous exhibits.   The Moores filed their objection on July 29, 2011, also accompanied by a memorandum of law and various exhibits.   On August 19, 2011, Borg–Warner filed its response to the Moores' objection to its summary judgment motion, and the parties presented oral arguments to the court on August 22, 2011.

II

DISCUSSIONAChoice of Law

As a threshold matter, the court must determine whether to apply the substantive law of Connecticut or the substantive law of Georgia.¹  Once that determination has been made, the court must then decide whether the statute of repose of Connecticut, or the statute of repose of Georgia, applies to this action.

Connecticut espouses the significant relationship test for choice of law purposes in tort actions.  Jaiguay v. Vasquez, 287 Conn. 323, 352, 948 A.2d 955 (2008).   In determining the appropriate substantive law to apply to a matter, the court looks at the following contacts:  (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.   These contacts are to be evaluated according to their relative importance with respect to the particular issue.”  (Internal quotation marks omitted.)  Id., 352.  “[I]t is the significance, and not the number, of contacts that determines the outcome of the choice of law inquiry ․” (Internal quotation marks omitted.)  Id., 353.

The Moores allege that they are both citizens of the state of Georgia, and that Jene Moore was exposed to various asbestos-containing products while working as a mechanic from the early 1950s through the late 1970s.   Borg–Warner has submitted a jobsite list indicating that, from 1956 to 1971, Jene Moore primarily was employed by various Georgia-based employers in the capacity of mechanic, maintenance worker, welder and truck driver, respectively.   Accordingly, when applying Connecticut's significant relationship test, the court finds that the substantive law of Georgia applies to this case.   The Moores are residents of Georgia, the alleged conduct that caused the injury occurred in Georgia and the relationship of the parties is centered in Georgia.

Before the court reaches the merits of Borg–Warner's summary judgment motion, however, it must determine whether the statute of repose of Georgia applies, thereby barring this action in whole or in part, or whether the statute of repose of Connecticut applies.

B

Statute of Repose

In its memorandum in support of its summary judgment motion, Borg–Warner argues that the Moores' strict liability design and manufacturing defect claims are barred by Georgia's ten-year statute of repose, O.C.G.A. § 51–1–11(b)(2).   The Moores counter that their action is timely because the eighty-year-statute of repose contained in the Connecticut Product Liability Act, General Statutes § 52–577a(e), applies.²

The Connecticut Supreme Court has concluded “that Connecticut law makes no distinction, for choice of law purposes, between statutes of limitation and statutes of repose ․” Baxter v. Sturm, Ruger & Co. 230 Conn. 335, 345, 644 A.2d 1297 (1994).   Further, Connecticut characterizes the statute of the foreign jurisdiction according to Connecticut's “own choice of law rules.”   Id., 345 n.6. “[S]tatutes of repose ․ are neither substantive nor procedural per se for choice of law purposes.   In any given case, the characterization of the applicable statute of repose depends on the nature of the underlying right that forms the basis of the lawsuit.   If the right existed at common law, then the statute of repose is properly characterized as procedural because it functions only as a qualification on the remedy to enforce the preexisting right.   If, however, the right is newly created by the statute, then the statute of repose is properly characterized as substantive because the period of repose is so integral a part of the cause of action as to warrant saying that it qualifie[s] the right.”  (Internal quotation marks omitted.)  Id., 346–47.   The court also explained that “for the limitation period of the lex loci to apply, the underlying right upon which the lawsuit is based must not have existed at common law.   Otherwise, the limitation period established by the lex fori governs.”  Id., 340.

In Wansor v. George Hantscho Co., 243 Ga. 91, 252 S.E.2d. 623 (1979), the United States Court of Appeals for the Fifth Circuit certified a question to the Georgia Supreme Court.   The certified question was whether, under Georgia law, the doctrine of strict liability in tort applied to a product that was manufactured, purchased and installed prior to the legislature's amendment of a statute (a statute that overcame privity limitations in tort recoveries), and the product caused an injury due to its defective condition.   The Georgia Supreme Court answered in the negative, emphasizing that the product was sold in 1961, therefore, “to apply the 1968 statute would violate Code Ann. § 102–104, forbidding the retrospective application of laws.”  Id.

The court began its analysis by acknowledging that “[a]lthough other states have found a cause of action for strict liability in their common law, the Georgia courts had not done so.   In 1968, however, the Georgia legislature passed a new statute dealing with a manufacturer's liability for its products:  Ga. L.1968, pp. 1166, 1167;  Code Ann. § 105–106.”  (Citation omitted.)  Id. Code Ann. § 105–106 (now O.C.G.A § 51–1–11), provided in pertinent part that “the manufacturer of any personal property sold as new property, either directly or through a dealer or any other person, shall be liable in tort, irrespective of privity, to any natural person who may use, consume or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended and its condition when sold is the proximate cause of the injury sustained;  a manufacturer may not exclude or limit the operation hereof.”

Previously, the court had construed this statute “as providing for strict tort liability against a manufacturer of personal property which is sold as new property and is defective.”  Id. 92.   The court continued,” [a] careful reading of Code Ann. § 105–106, convinces us that the clear intent of the legislature was to create a new tort, strict liability ․ The provisions of Code Ann. § 105–106 create a new cause of action which is in derogation of the common law.”  (Citation omitted;  internal quotation marks omitted.)  Id., 93.   The court carefully drew a distinction between “acts which [e]ffect existing rights, or impose new obligations, and acts which give new remedies for existing rights, and enforce the performance of previous obligations.”   (Emphasis in original;  internal quotation marks omitted.)  Id., 93.   The court concluded that the plaintiff had no cause of action under Code Ann. § 105–106 because he was not injured by a product “sold as new property” after 1968 when such liability attached.  (Internal quotation marks omitted.)  Id.

Subsequently, in Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383 (1983). the Georgia Supreme Court acknowledged that the Georgia legislature had added a ten-year statute of limitations to § 105–106, O.C.G.A. § 51–1–11(b) in April of 1978.   The court refused to apply this statute of limitations to an action in which the injury had occurred in January of 1978.   It reiterated that this statute governed strict liability in tort “which is in derogation of common law and must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.”  (Internal quotation marks omitted.)  Id., 167.

The Georgia Supreme Court has observed that its strict product liability statute, and the statute of repose contained therein, resulted from a legislative intent to “create a new tort, strict liability.”  Wansor v. George Hantscho Co., supra, 243 Ga. 92.   It emphasized that the provisions of this statute “create a new cause of action which is in derogation of the common law.”  Id.³ Under Connecticut choice of law analysis, therefore, the statute of repose of the lex loci applies, the place where the alleged injuries were incurred, the state of Georgia.   Accordingly, Georgia's ten-year statute of repose, as applied here, bars count one of the Moores' sixth amended complaint to the extent that count one alleges claims based upon strict liability.

Further, insofar that count one also alleges a breach of warranty, § 51–1–11 also bars this claim.  Section 51–1–11(b)(1) addresses injuries suffered “because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.”  Section 51–1–11(b)(2) further provides that “[n]o action shall be commenced after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.”

For the reasons discussed above, the summary judgment motion of the defendant, Borg–Warner Corp. is granted with respect to the first count as to the product liability claims that are based upon strict liability and as to the breach of warranty claim.

Georgia's statute of repose, § 51–1–11(c), further “extends the ten-year statute of repose to negligence actions, but differs from subsection (b)(2) by providing for two exceptions to the statute of repose, i.e., where the manufacturer's negligence resulted in a product causing disease or birth defect, or where the injuries or damages arose out of conduct manifesting a willful, reckless, or wanton disregard for life or property.”  (Internal quotation marks omitted.)  Chrysler Corp. v. Batten, 264 Ga. 723, 725–26, 450 S.E.2d 208 (1994).   In addition, the statute contains an exclusion that places “failure-to-warn causes of action outside the ambit of the statute of repose, thereby precluding use of the statute to relieve manufacturers of their liability for failing to warn of a danger arising from the use of a product whenever that danger becomes known to the manufacturers.”  Id., 727.

As discussed above, the court must construe the Moores' complaint in accordance with Georgia substantive law.   To the extent that the first count of the Moores' complaint contains allegations of negligence and failure to warn, Borg–Warner's summary judgment will not be granted on the basis that Georgia's statute of repose bars these claims.   Rather, because the court's decision to apply Georgia's law only applies to substantive law, not procedural law;  see Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 807 n.123, 830 A.2d 752 (2003);  the court will now apply Connecticut's summary judgment standard to Borg–Warner's motion for summary judgment as it is directed to the Moores' remaining claims.

C

Summary Judgment Motion

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Id. “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)   Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

“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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

When the defendant has moved for summary judgment, “the burden is on [that] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to demonstrate the existence of a genuine issue of fact that would justify a trial.  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007)

According to Georgia substantive law, ‘[c]ausation is an essential element of a toxic tort case ․” (Internal quotation marks omitted.)  Butler v. Union Carbide Corp., 310 Ga.App. 21, 30, 712 S.E.2d 537 (2011).  “[T]he threshold for every theory is proof that an injured plaintiff was exposed to asbestos-containing products for which the defendant is responsible.   That is, the plaintiff must present evidence that a particular defendant's asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used ․ (Citation omitted;  internal quotation marks omitted.)  Id., 31.   Further, “[i]n failure to warn cases, the duty to warn arises whenever the manufacturer knows or reasonably should know of the danger arising from the use of its product.”  (Internal quotation marks omitted.)  Mather v. L'Oreal USA, 304 App. 163, 164, 695 S.E.2d 693 (2010).

To summarize, the court must juxtapose Georgia's substantive law with respect to the Moores' surviving claims ⁴ while applying Connecticut's procedural law as to summary judgment.   Therefore, Borg–Warner is required to demonstrate that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law, concerning the issues of whether Jene Moore was exposed to Borg–Warner's asbestos-containing products at his job site, whether he was in proximity to that product at the time it was in use, and whether Borg–Warner had a duty to warn because Borg–Warner reasonably should have known of the danger arising from its asbestos-containing products.

Borg–Warner argues that the sole product at issue in this case is a single automatic transmission friction plate, allegedly manufactured by Borg–Warner, which Jene Moore possessed, but never actually used, in connection with the overhaul of a Chrysler automatic transmission during the 1980s.   Borg–Warner further contends that the evidence establishes that other friction plates that Jene Moore would have worked with would have been manufactured by, and supplied through, other entities.   It concludes that the Moores have failed to set forth evidence to support their allegations that Jene Moore was exposed to asbestos through the limited use of the single Borg–Warner friction plate.   It is Borg–Warner as the summary judgment movant, however, not the Moores, who carries the burden of establishing the absence of any genuine issue of material fact with respect to Jene Moore's exposure to Borg–Warner's alleged asbestos-containing product.   Borg–Warner cites to exhibits D, E and F to support the proposition that, other than the single automatic transmission friction plate allegedly manufactured by Borg–Warner, all other friction plates Jene Moore would have worked with would have been manufactured by Allomatic Industries and supplied to the National Automotive Parts Association through Balkamp, Inc. Exhibit D contains “Genuine Parts Company's Responses to Plaintiffs' 7/2/09 Supplemental Interrogatories and Requests for Production of Defendant, Genuine Parts Company.”   This document is notable for the lack of specificity as to which, if any, of GPC's asbestos-containing products would have been located at Jene Moore's jobsites, nor is there any reference to Borg–Warner's alleged asbestos-containing products.   Exhibit F, “Plaintiffs' Supplemental Interrogatories and Requests for Production of Defendant, Balkamp, Inc.” suffers from the same lack of specificity and relevance, as Balkamp merely tailors its responses to its own products.   In addition, Exhibit E, Borg–Warner's responses to the Moores' interrogatories and production requests, also fails to buttress its motion for summary judgment as Borg–Warner objected to the majority of interrogatories propounded to it as being overly broad, vague and ambiguous.   Nor does Borg–Warner's evidence dispel issues of material fact concerning whether it reasonably should have known of the danger arising from its alleged asbestos-containing products.

Accordingly, Borg–Warner's motion for summary judgment as to the strict liability and breach of warranty claims contained in count one is granted.   Further, the motion as to the negligence and failure to warn claims incorporated in the first count is denied.   The court further denies the motion for summary judgment as it is directed at count two, the loss of consortium claim, and as to count three, the count alleging wilful, wanton and malicious misconduct because Borg–Warner has failed to meet its burden of demonstrating the absence of all genuine issues of material fact.

BELLIS, J.

FOOTNOTES

FN1. It is unclear from this court's prior ruling and the position of the parties at the August 22, 2011 oral argument as to whether the parties were in agreement that the substantive law of Georgia would apply.   As such, the record is best served by presenting an independent legal analysis of this issue..  FN1. It is unclear from this court's prior ruling and the position of the parties at the August 22, 2011 oral argument as to whether the parties were in agreement that the substantive law of Georgia would apply.   As such, the record is best served by presenting an independent legal analysis of this issue.

FN2. General Statutes § 52–577a(e) was amended by No. 11–200 § (1)(e) of the 2011 Public Acts, to expand the statute of repose to “eighty years from the date that the claimant last had contact with or exposure to asbestos ․.  FN2. General Statutes § 52–577a(e) was amended by No. 11–200 § (1)(e) of the 2011 Public Acts, to expand the statute of repose to “eighty years from the date that the claimant last had contact with or exposure to asbestos ․

FN3. The court would be remiss if it failed to address a later Georgia Supreme Court case, which, on its face, appears to conflict with the Georgia caselaw discussed above.   In Doyle v. Volkswagenwerk Aktiengesellchaft, 267 Ga. 574, 481 S.E.2d 518 (1997), the certified question from the United States Court of Appeals for the Eleventh Circuit was [w]hen an automobile manufacturer sells an automobile to a Georgia citizen and the automobile is in compliance with the National Automobile Safety Act, does Georgia law preclude a personal injury product liability claim?  Id. The court explained that the focus of the federal Safety Act was to reduce deaths and injuries from automobile accidents by promoting safer car designs.   It observed that “[t]o that end, we determine that our state common law permits its citizens to pursue a personal injury product liability claim against an automobile manufacturer even if the automobile is in compliance with the Safety Act.” Id., 577.   The court emphasized, however, that “[a]ll we do today is affirm that proof of compliance with federal standards or regulations will not bar manufacturer liability for design defect as a matter of law.  (Emphasis added.)  Id.This court recognizes that in the Doyle case, the Georgia Supreme Court was restricted to answering the certified question as presented by the Court of Appeals, and that the certified question did not involve the issue of which Georgia law was to apply, common law or statutory.   In addition, upon further research, this court has found that the Doyle case has been cited for propositions such as “[a]n automobile manufacturer's compliance with Federal regulations does not eliminate liability for design defects under Georgia law.”  Gentry v. Volkswagen of America, Inc., 738 Ga.App. 785, 786 521 S.E.2d 13 (1999).   Accordingly, this court is of the opinion that the Doyle decision does not conflict with the Georgia caselaw relied upon in the discussion above..  FN3. The court would be remiss if it failed to address a later Georgia Supreme Court case, which, on its face, appears to conflict with the Georgia caselaw discussed above.   In Doyle v. Volkswagenwerk Aktiengesellchaft, 267 Ga. 574, 481 S.E.2d 518 (1997), the certified question from the United States Court of Appeals for the Eleventh Circuit was [w]hen an automobile manufacturer sells an automobile to a Georgia citizen and the automobile is in compliance with the National Automobile Safety Act, does Georgia law preclude a personal injury product liability claim?  Id. The court explained that the focus of the federal Safety Act was to reduce deaths and injuries from automobile accidents by promoting safer car designs.   It observed that “[t]o that end, we determine that our state common law permits its citizens to pursue a personal injury product liability claim against an automobile manufacturer even if the automobile is in compliance with the Safety Act.” Id., 577.   The court emphasized, however, that “[a]ll we do today is affirm that proof of compliance with federal standards or regulations will not bar manufacturer liability for design defect as a matter of law.  (Emphasis added.)  Id.This court recognizes that in the Doyle case, the Georgia Supreme Court was restricted to answering the certified question as presented by the Court of Appeals, and that the certified question did not involve the issue of which Georgia law was to apply, common law or statutory.   In addition, upon further research, this court has found that the Doyle case has been cited for propositions such as “[a]n automobile manufacturer's compliance with Federal regulations does not eliminate liability for design defects under Georgia law.”  Gentry v. Volkswagen of America, Inc., 738 Ga.App. 785, 786 521 S.E.2d 13 (1999).   Accordingly, this court is of the opinion that the Doyle decision does not conflict with the Georgia caselaw relied upon in the discussion above.

FN4. The Moores' remaining claims are:  Count One—negligence and failure to warn;  Count Two—loss of consortium;  and Count Three—failure to make known studies and reports establishing that asbestos-containing products were hazardous to the health and safety of the Moores, constituting acts and omissions that were willful, wanton and malicious.This court further observes that Joyce Moore's loss of consortium claim is dependent upon her husband, Jene Moore's, right to recover.  Bramblett v. Earl Smith Floors, Inc. 227 Ga.App. 296, 298 488 S.E.2d 766 (1997)..  FN4. The Moores' remaining claims are:  Count One—negligence and failure to warn;  Count Two—loss of consortium;  and Count Three—failure to make known studies and reports establishing that asbestos-containing products were hazardous to the health and safety of the Moores, constituting acts and omissions that were willful, wanton and malicious.This court further observes that Joyce Moore's loss of consortium claim is dependent upon her husband, Jene Moore's, right to recover.  Bramblett v. Earl Smith Floors, Inc. 227 Ga.App. 296, 298 488 S.E.2d 766 (1997).

Bellis, Barbara N., J.