Jorge Pina v. Metalcraft of Mayville, Inc. (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 146)

FACTS

The plaintiff, Jorge Pina, by writ, summons, and complaint commenced this product liability action against the defendants, Metalcraft of Mayville, Inc. d/b/a Scag Power Equipment (Metalcraft), and Frenette's Power Equipment, Inc. (Frenette's) on November 2, 2011.   In a two-count complaint filed on November 14, 2011, Pina alleges the following facts.   On or about November 19, 2009, Pina was operating a lawnmower that was manufactured by Metalcraft and subsequently sold by Frenette's to Pina's employer, Lavalette Landscaping, Inc. (Lavalette).  The mower in question was equipped to detect weight in the seat of the mower and to deactivate the engine and other mechanisms that provide power to the mower deck when no operator is positioned in the seat.   Pina stopped the mower in order to clear a clog in the fan mechanism, dismounted from the seat, and, expecting that power to the mower deck was disengaged, inserted his hand into the fan mechanism.   The mower, however, “suddenly and without warning malfunctioned in that the engine did not stop running and therefore continued to leave in motion the belts and associated instrumentalities that rotate the ․ fan blades.”   The rotating blades struck the fingers of Pina's right hand causing serious, disfiguring injuries.

Pina further alleges the following.   The defendant, Metalcraft, is liable and legally responsible for his injuries pursuant to General Statutes § 52–572m ¹ in that Metalcraft:  (1) defectively designed, engineered, manufactured, and assembled the mower;  (2) failed to properly warn or instruct of the mower's dangerous propensity;  (3) misrepresented that the mower was safe for use by members of the general public, including Pina;  (4) was negligent in failing to properly and adequately test the safety aspects of the mower prior to its sale;  (5) breached an implied warranty of merchantability in that the mower was not of merchantable quality and fit for its intended purpose;  (6) breached its express warranties that the mower was safe and effective for its intended use;  and (7) failed to adequately disclose the dangerous propensities of the mower.   Additionally, the mower was defective, unreasonably dangerous, and could not be used without unreasonable risk of injury to Pina, and the defects in the mower existed when the product was put into the stream of commerce by Metalcraft.   The defendant, Frenette's, is also liable and legally responsible for Pina's injuries pursuant to § 52–572m in that Frenette's:  (1) sold the defective mower to Lavalette;  (2) failed to adequately warn Pina or Lavalette that the mower was inadequate or improper for the use intended;  (3) failed to adequately inspect the mower prior to selling it;  and (4) misrepresented to Lavalette that the mower was in good working order, in violation of the implied and express warranties.

On May 29, 2013, Metalcraft filed a motion to implead Mid–Tek, Inc. (Mid–Tek) as a third-party defendant in the action pursuant to General Statutes § 52–102a,² which the court granted on June 10, 2013.   On July 17, 2013, Metalcraft served Mid–Tek with a third-party complaint alleging the following facts.   During investigation and discovery in the plaintiff's action against Metalcraft and Frenette's, it was determined that Pina's claims center upon the alleged failure of a safety component in the mower, which caused the engine, blades, and grass collection fan to continue to run after he vacated the operating position on the mower.   It was further determined that the defect in the safety component was caused by the failure of an electronic control module, which was manufactured and sold to Metalcraft by Mid–Tek.   Pursuant to the terms of an agreement contained in the purchase order between the parties, Mid–Tek is required “to defend and hold Metalcraft harmless for any and all claims arising from a defect in the Mid–Tek product.”   If the factfinder determines that the control module was defective and was the cause of Pina's injuries, Metalcraft is entitled to indemnification and contribution from Mid–Tek for any loss it may suffer as a result of Pina's claims against it.

On August 26, 2013, Mid–Tek, as third-party defendant, filed a motion to dismiss Metalcraft's third-party complaint against it on the ground that the complaint was not filed within one year from the date that the original cause of action was returned to court, as required under General Statutes § 52–577a(b).³  Mid–Tek also filed a memorandum of law in support of the motion to dismiss.   On October 7, 2013, Metalcraft filed an objection to the motion, an accompanying memorandum, and several affidavits and documents.   The court heard oral arguments on the motion and the objection thereto on November 4, 2013.

DISCUSSION

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432–33, 829 A.2d 801 (2003).  “Pursuant to Practice Book § 10–31(a), a motion to dismiss ․'shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.'  “ Conboy v. State, 292 Conn. 642, 647 n.7, 974 A.2d 669 (2009).  “If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Citations omitted.)  Id., 652.

In the present case, Mid–Tek moves to dismiss the third-party complaint filed against it by Metalcraft on the ground that the complaint was not brought within one year from the date on which Pina's original complaint against Metalcraft and Frenette's was returned to court, thus exceeding the time limitation for impleader in product liability actions provided in General Statutes § 52–577a(b).  Mid–Tek argues that Pina's complaint was filed on November 14, 2011, and that Metalcraft did not serve Mid–Tek with a third-party complaint for indemnification and contribution until July 17, 2013.⁴  Metalcraft posits three arguments in opposition to the motion to dismiss.   The first is that Mid–Tek's motion should be denied on procedural grounds because it raises a statute of limitations defense, which is improper in a motion to dismiss and must be specifically pleaded as a special defense pursuant to Practice Book § 10–50.   Second, Metalcraft argues that, even assuming that the motion to dismiss is properly brought, the one-year limitations period in § 52–577a(b) should be tolled on the ground that Metalcraft did not have a basis for bringing its indemnification or contribution claims against Mid–Tek until June 2013, when the control module that Mid–Tek manufactured was found to have malfunctioned.   Third, Metalcraft contends that the interests of judicial economy would be best served if the third-party action is allowed to proceed because Metalcraft will have the right to bring a subsequent action, should Pina prevail on his claims against it, based on the contractual agreement in which Mid–Tek agrees to indemnify and hold Metalcraft harmless for any defects in its products.

The court will first address Metalcraft's procedural argument that Mid–Tek's statute of limitations defense must be specifically pleaded and is not properly raised in a motion to dismiss.  Practice Book § 10–31(a) specifies that a motion to dismiss is generally only appropriate for contesting jurisdictional matters, including lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process.   Additionally, the Supreme Court, citing Practice Book § 10–50, has stated that “ordinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense ․” (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).   Nevertheless, the courts have also recognized an exception to this rule, stating, “[W]hen ․ a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ․ In such cases, the time limitation is not to be treated as an ordinary statute of limitation ․ but rather is a limitation on the liability itself, and not of the remedy alone ․ [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ․ and may not be waived.”  (Internal quotation marks omitted.)   State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).

The Connecticut appellate courts have not addressed this issue in relation to § 52–577a.   Presently, there is a conflict in the Superior Court as to whether the time limitation set forth in General Statutes § 52–577a(b) should be regarded as jurisdictional, rather than procedural, and thus can be raised on a motion to dismiss.   For example, in Demelis v. Lyon & Billard Co., Superior Court, judicial district of New Haven, Docket No. CV–94–0367841–S (January 3, 2000, Alander, J.) [26 Conn. L. Rptr. 209]. the court found that the time limitation in § 52–577a(b) is procedural in nature based on the statute's use of the term “may” rather than “shall,” which “is suggestive of a non jurisdictional purpose.”   The court reasoned that § 52–577a(b) does not create a substantive right of action in the product liability context because the right to implead a third-party defendant is created by the common law and through the product liability act, so § 52–577a must be considered procedural.   By contrast, in Gulycz v. Giant Bicycle Corp., Superior Court, judicial district of New Britain, Docket No. CV–98–0485167–S (March 31, 1999, Graham, J.), the court noted that where a specific limitation is contained within the statute which establishes the remedy, as is the case in § 52–577a, it is considered substantive or jurisdictional.

Addressing the Superior Court's inconsistent treatment of § 52–577a(b) in Barringer v. Whole Foods Market, Inc., Superior Court, judicial district of Hartford, Docket No. CV–09–6005918–S (July 14, 2011, Sheldon, J.) (52 Conn. L. Rptr. 410), the court found the Supreme Court's guidance in the related context of apportionment complaints to be instructive.   The court noted that, in Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004), the court held “that a plaintiff's failure to serve an amended complaint pleading over against an apportionment defendant by the statutory deadline for that purpose constitutes a jurisdictional defect properly raised by a motion to dismiss.”  Barringer v. Whole Foods Market, Inc., supra, 52 Conn. L. Rptr. 411.   The Lostritto court reasoned that the plaintiff's failure to serve an amended complaint against an apportionment defendant within the time prescribed by law constitutes a defect in process, and that such a failure may be raised by a timely motion to dismiss on the ground of insufficiency of process.  Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 34.   In Barringer, Judge Sheldon analogized a plaintiff's amended complaint against an apportionment defendant to a third-party complaint in which a defendant impleads a third party in product liability actions.   Both forms of complaint, he noted, “must be brought by a fixed statutory deadline if they are to be litigated together with the plaintiff's initial claims against the original defendants.”  Barringer v. Whole Foods Market, Inc., supra, 52 Conn. L. Rptr. 411.   Therefore, Judge Sheldon concluded that a third-party defendant's motion to dismiss for failure to comply with the time requirements of § 52–577a(b) constitutes a challenge to the court's personal jurisdiction over the third-party plaintiff's claims against it, which may be properly raised in a motion to dismiss.  Id., 412.

In the present case, Mid–Tek argues that Metalcraft's failure to commence its third-party action in a timely manner is a jurisdictional defect that implicates the court's personal jurisdiction over the third-party defendant.   Metalcraft, relying upon the court's reasoning in Demelis v. Lyon & Billard Co., supra, Superior Court, Docket No. CV–94–0367841–S, contends that because the right to implead a third-party defendant is derived from common law rather than from the statute itself, the timing requirement in § 52–577a(b) is procedural and thus cannot be raised on a motion to dismiss.   The procedural background of the present case is nearly identical to that which was before the court in Barringer v. Whole Foods Market, Inc., supra, 52 Conn. L. Rptr. 410.   There, the plaintiff brought a § 52–572m products liability claim against Whole Foods Market for damages related to an illness she contracted from spoiled milk that she had purchased at the defendant's store.   Whole Foods moved to implead the town of Simsbury as a third-party defendant under § 52–577a(b), and the town moved to dismiss the third-party complaint because it was not brought within one year of commencement of the original action.   As noted above, the court, relying upon the Supreme Court's treatment of apportionment complaints, found that the motion constituted a proper challenge to the court's personal jurisdiction over Whole Foods' claims.   The same logic may be applied in the present case.   If the court finds that Metalcraft failed to serve the third party complaint against Mid–Tek within the time prescribed by § 52–577a(b), such a defect constitutes a defect in process, which is properly raised by a motion to dismiss.   Based on the reasoning set forth in Barringer, Mid–Tek's argument is properly raised on a motion to dismiss, and therefore, the court will not deny Mid–Tek's motion on procedural grounds.

Metalcraft next argues that, even assuming that Mid–Tek's statute of limitations defense is properly raised in a motion to dismiss, the fact that Metalcraft did not have a basis for indemnification or contribution against Mid–Tek until June 2013 provides a justifiable ground on which to toll the limitations period in § 52–577a(b).  Section 52–577a(b) provides:  “In any [product liability] action, a product seller may implead any third party who is or may be liable for all or part of the claimant's claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action under subsection (a) of this section is returned to court.”   The relevant portion of subsection (a) provides that “no product liability claim ․ shall be brought but within three years from the date when the injury ․ is first sustained or discovered or in the exercise of reasonable care should have been discovered ․” The purpose of § 52–577a is to encourage “parties to consolidate the litigation flowing from a given factual circumstance into a single judicial proceeding thereby avoiding multiplicity of actions.”  Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989).  “Connecticut trial courts have consistently looked to the original complaint in the underlying action to determine when the one-year statute of limitations began to run pursuant to § 52–577a.”   Garrity v. First and Last Tavern, Superior Court, judicial district of Middlesex, Docket No. CV–10–6002820–S (April 10, 2012, Holzberg, J.) [53 Conn. L. Rptr. 771].   See also Barringer v. Whole Foods Market, Inc., supra, 52 Conn. L. Rptr. 410.

In the present case, Pina's original complaint sounding in product liability and negligence against Metalcraft and Frenette's was returned to court on November 14, 2011.   Metalcraft did not serve Mid–Tek with a third-party complaint for indemnification and contribution until July 17, 2013, which, Mid–Tek argues, exceeds the one-year time limitation in § 52–577a(b).  Metalcraft contends that the limitations period should be tolled because the basis for its claims of indemnification and contribution did not arise until June 2013, and alleges the following additional facts in its memorandum to support this argument and submits evidence in support thereof.   According to this evidence, Metalcraft received Pina's workers' compensation file from Travelers Insurance Company on November 15, 2012, which indicated that the control module in the mower had been tested, was not found to be defective, and would subsequently be disposed of by Travelers.   Based on this information, Metalcraft reasonably believed that Pina would not proceed with his claim that the control module was defective.   The documents submitted by Metalcraft further demonstrate that on January 11, 2013, it learned that the module had not been discarded by Travelers and, upon inspection, Metalcraft determined that it had been manufactured by Mid–Tek.   Metalcraft then moved to implead Mid–Tek into the pending action against it on May 29, 2013.   According to the affidavit submitted by Metalcraft, on June 13, 2013, all parties to the action, including Mid–Tek, participated in an additional inspection of the mower and the control module and found that the module did not perform as expected.   Metalcraft therefore argues that the basis for its claims of indemnification and contribution did not arise until January 11, 2013, at the earliest, when it learned that the module had not been disposed of by Travelers and had been manufactured by Mid–Tek, or June 13, 2013, at the latest, when the module was found to be defective.   Metalcraft's third-party complaint was served on Mid–Tek on July 17, 2013, which Metalcraft argues is within one year of the date on which the basis for impleading Mid–Tek arose and thus in compliance with § 52–577a(b).

The court in Garrity v. First and Last Tavern, supra, Superior Court, Docket No. CV–10–6002820–S, was presented with a similar set of facts as presented here, and found that an equitable ground existed to toll the limitations period in § 52–577a(b).  The plaintiff in Garrity brought suit against First and Last Tavern on June 18, 2010, for an injury she allegedly sustained from the consumption of a meatball at the defendant's restaurant.   On March 31, 2011, the plaintiff brought a claim against Napoli Foods via a motion to cite in a new party to the action.   Napoli then brought a third-party complaint for indemnification against Buona Vita, Inc., on September 14, 2011, which Buona Vita moved to dismiss pursuant to § 52–577a(b) because it was filed more than one year after the original complaint was returned to court.   The court concluded, however, that March 31, 2011 was the operative date when the one-year statute of limitations began to run pursuant to § 52–577a because it on that date that Napoli was included as a party in the action for the first time.   In addition, the court noted that if it were to grant the motion to dismiss, Napoli would be able to bring a separate cause of action for indemnification against Buona Vita at a later date pursuant to the three-year statute of limitations for indemnification claims in § 52–598.⁵  Given that the purpose of § 52–577a is to encourage “parties to consolidate the litigation flowing from a given factual circumstance into a single judicial proceeding thereby avoiding multiplicity of actions,” and the fact that Napoli was not a defendant in the original complaint, the court concluded that the one-year statute of limitations began to run on March 31, 2011.  Id., citing Malerba v. Cessna Aircraft Co., supra, 210 Conn. 195.

Although the present case is distinguishable from Garrity in that Metalcraft was an original defendant cited in Pina's complaint, the court's reasoning regarding the equitable tolling grounds for the limitations period in § 52–577a(b) is nonetheless applicable here.   Just as Napoli was brought into the action at a later date via a motion to cite and thus did not have a reason to indemnify Buona Vita until that time, the basis for Metalcraft's claim of indemnification and contribution against Mid–Tek did not arise until January 11, 2013, when it learned that the control module had not been disposed of by Travelers, and that Pina was therefore likely to reference it in the pending action.   Likewise, as Metalcraft argues, if the court grants the instant motion to dismiss and Pina is successful on his claims, Metalcraft would be able to bring a subsequent cause of action for indemnification and contribution against Mid–Tek pursuant to § 52–598 and the contractual agreement contained in the purchase order between the parties.   As the court reasoned in Garrity, “[i]t is inconsistent with the goal of conserving limited judicial resources to dismiss [a] case only to have [the third-party plaintiff] bring a subsequent action” against the third-party defendant at a later date.  Garrity v. First and Last Tavern, supra, Superior Court, Docket No. CV–10–6002820–S.   For the foregoing reasons, Metalcraft's third-party complaint is timely because it was returned to the court on July 17, 2013, well within the one-year statute of limitations period that expires on January 11, 2014.

CONCLUSION

Accordingly, for the foregoing reasons, the third-party defendant's motion to dismiss the third-party complaint on the ground that the action was not timely commenced pursuant to General Statutes § 52–577a(b) is denied.

Wilson, J.

FOOTNOTES

FN1. General Statutes § 52–572m provides in relevant part:  “(b) ‘Product liability claim’ includes all claims or actions brought for personal injury ․ caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent ․”.  FN1. General Statutes § 52–572m provides in relevant part:  “(b) ‘Product liability claim’ includes all claims or actions brought for personal injury ․ caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent ․”

FN2. General Statutes § 52–102a provides in relevant part:  “A defendant in any civil action may move the court for permission as a third party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.   The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded ․”.  FN2. General Statutes § 52–102a provides in relevant part:  “A defendant in any civil action may move the court for permission as a third party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.   The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded ․”

FN3. General Statutes § 52–577a(b) provides in relevant part that, in an action for product liability, “a product seller may implead any third party who is or may be liable for all or part of the claimant's claims, if such third party defendant is served with the third party complaint within one year from the date the [original] cause of action ․ is returned to court.”.  FN3. General Statutes § 52–577a(b) provides in relevant part that, in an action for product liability, “a product seller may implead any third party who is or may be liable for all or part of the claimant's claims, if such third party defendant is served with the third party complaint within one year from the date the [original] cause of action ․ is returned to court.”

FN4. It is noted that Mid–Tek indicates in its memorandum that the third-party complaint was filed on May 29, 2013, which is not the filing date for the complaint but the date on which Metalcraft filed its motion to implead Mid–Tek into the action.   The operative commencement date for impleading a third party in a product liability action according to General Statutes § 52–577a(b), however, is the date on which the third-party defendant was served with the third-party complaint.   In the present case, that date is July 17, 2013..  FN4. It is noted that Mid–Tek indicates in its memorandum that the third-party complaint was filed on May 29, 2013, which is not the filing date for the complaint but the date on which Metalcraft filed its motion to implead Mid–Tek into the action.   The operative commencement date for impleading a third party in a product liability action according to General Statutes § 52–577a(b), however, is the date on which the third-party defendant was served with the third-party complaint.   In the present case, that date is July 17, 2013.

FN5. General Statutes § 52–598 provides:  “Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.”.  FN5. General Statutes § 52–598 provides:  “Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.”

Wilson, Robin L., J.