Opinion
No. CV 05 4008725
August 9, 2007
MEMORANDUM OF DECISION
Before this court is a motion for summary judgment filed by the fourth-party defendant, Robert K. Simon d/b/a PRC Worldwide Sourcing (Simon). The motion arises from a fourth-party complaint, filed by Odyssey Group, LLC (Odyssey) seeking statutory damages and indemnification against Simon. The origin of this underlying products liability lawsuit is a May 27, 2004 electrical fire on board a Keystone RV Mountaineer Travel Trailer owned by Paul Duguay (Duguay), and insured by Allstate Insurance Company (Allstate). By way of a complaint filed on February 22, 2005, Allstate, as subrogee of Duguay, commeneed an action against Keystone RV Company (Keystone) to recover for losses allegedly sustained in the fire. The initial complaint has resulted in the filing of several third-party complaints seeking to shift or share liability. On February 10, 2006, Keystone filed a third-party complaint against Odyssey, alleging that the fire started in an electrical outlet sold to Keystone by Odyssey. Subsequently, on September 22, 2006, Odyssey filed a fourth-party complaint against Simon, thereafter amended by a February 21, 2007 "revised fourth-party complaint."
In the first count of the revised fourth-party complaint, Odyssey alleges that Simon supplied to Odyssey parts and supplies, including electrical outlets allegedly used in the construction and manufacture of the Keystone trailer. In this count, Odyssey further alleges that if Duguay sustained losses and if the trailer's electrical outlet was defective, such losses were caused by Simon's violations of the Connecticut Product Liability Act, General Statutes § 52-572m et seq. In the second count, Odyssey alleges that if Duguay sustained losses as alleged, Simon is liable to Odyssey to indemnify it in the amount of any such judgment and all related fees, costs and expenses.
On April 24, 2007, Simon filed a motion for summary judgment and a memorandum of law in support on the grounds that Odyssey's claims are time barred by General Statues § 52-577a(b). On May 10, 2007, Odyssey filed an objection and memorandum in opposition to the motion for summary judgment, arguing that Odyssey brought Simon into the action within the appropriate statute of limitations, specifically General Statues § 52-598a. The motion was argued before this court on May 14, 2007.
"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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Colangelo v. Heckelman, 279 Conn. 177, 182, 900 A.2d 1266 (2006). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
In its memorandum in support of the motion for summary judgment, Simon asserts that Odyssey's claims are time barred under § 52-577a(b), which provides in relevant part that in an action based on a product liability claim, "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 brought under subsection (a) of this section is returned to court." (Emphasis added.) There has been no claim that the "cause of action" referred to in subsection (a) of § 52-577a is anything but the original product liability action, here the action between Allstate and Keystone. Odyssey, however, claims that the one-year statute of limitations in § 52-577a(b) does not operate to bar its action. Instead, it asserts that as a claim for indemnification, their complaint is governed by § 52-598a, which 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." This court is not persuaded.
By its terms, § 52-598a requires either a judgment or settlement before a cause of action for indemnification accrues. See Sivilla v. Philips Medical Systems of North America., Inc., 46 Conn.App. 699, 711, 700 A.2d 1179 (1997) ("[s]ection 52-598a expressly provides that a cause of action for indemnity does not arise until the determination of the underlying action against the party seeking indemnification"). There is no dispute that the underlying product liability action, in which Odyssey is a third-party defendant, is still pending.
In Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 810 A.2d 259 (2002), our Supreme Court addressed the issue of whether or not the three-year statute of limitations in § 52-598a applies instead of the statute of limitations applicable to breach of contract claims under General Statutes § 52-576. Amoco Oil Co. v. Liberty Auto Electric Co., supra, 262 Conn. 146-47. In that case, the plaintiff premised its indemnification claim on the indemnity agreement between it and the defendant, asserting that the defendant was responsible for losses it incurred by the installation of a leaking gas tank. Id., 145. Notwithstanding the existence of an indemnity agreement, the court rejected Amoco's attempt to characterize their breach of contract claim as a claim for indemnification, given that they were seeking damages for their own losses, as opposed to losses incurred as a result of a claim arising from liability to third parties. Id., 151-52. Moreover, in an alternate holding, the court, quoting the relevant statutory language, also underscored the absence of either a judgment or settlement in the allegations. It noted that "General Statutes § 52-598a provides that a party seeking indemnification may bring an indemnification action within three years from the date an action against it, by a third party, has been determined `by either judgment or settlement.'" (Emphasis in original.) Amoco Oil Co. v. Liberty Auto Electric Co., supra, 262 Conn. 152. As such, the court held that Amoco's reliance on § 52-598a was misplaced, to the extent that it failed to allege that "it sought indemnification for losses it had incurred pursuant to either a judgment or settlement in a third party action." Id. Moreover, this court finds persuasive the reasoning and analysis of the court's decision in Demelis v. Lyon Billard Co., Superior Court, judicial district of New Haven, Docket No. 367841 (August 25, 2000, Levin, J.) (28 Conn. L. Rptr. 5). Decided more than two years before Amoco Oil Co. v. Liberty Auto Electric Co., supra, 262 Conn. 142, the Demelis decision is nevertheless consistent with the holding in Amoco and is directly on point with the matter before this court.
In Demelis, the court noted that the third-party plaintiff in a product liability action failed to bring its third-party complaint until four and one-half years after the return date, and therefore failed to implead the third-party defendant within the one-year time limitation set forth in § 52-577a(b). Demelis v. Lyon Billard Co., supra, 28 Conn. L. Rptr. 5. Like the fourth-party plaintiff in the case before this court, the third-party plaintiff in Demelis argued that its third-party action was timely by attempting to invoke the three-year statute of limitations provision in § 52-598a. Id.
Observing that § 52-598a was enacted in 1993, subsequent to § 52-577a, which was enacted in 1979, the court invoked the relevant rules of statutory construction. It noted that "[s]tatutes should be read so as to harmonize with each other, and not to conflict with each other . . . We must presume that the legislature intended the two statutes to be read together and to be construed, wherever possible, to avoid conflict between them." Demelis v Lyon Billard Co., supra, 28 Conn. L. Rptr. 5, quoting Furhman v. Dept. of Transportation, 33 Conn.App. 775, 778, 638 A.2d 1091 (1994).
Employing this analysis, the court in Demelis observed that "General Statutes §§ 52-577a(b) and 52-598a indeed may be read in harmony. Section 52-577a(b) provides a procedural one-year time limit for impleading a product seller into a products liability action for indemnification or contribution. Section 52-598a provides a three-year time limit in which an action for indemnification may be brought after either judgment or settlement. Thus, while [the third-party plaintiff may have a three-year time period in which to bring an action for indemnification, that time period cannot start to run until [the third-party plaintiff] receives a judgment on or settlement of the complaint against it . . . Thus, § 52-577a allows a party to implead another party prior to adjudication of an underlying products liability claim, rather than wait until judgment or settlement to bring an action in indemnification." (Citations omitted; emphasis added.) Demelis v. Lyon Billard Co., supra, 28 Conn. L. Rptr. 5-6. Given that the third-party plaintiff failed to implead within the one-year limitation, the Demelis court granted the motion for summary judgment. Id.
In light of the Amoco decision and the persuasive reasoning of Demelis, this court holds that application of § 52-598a to this case would be misplaced, given the absence of a judgment or settlement. While Odyssey is not precluded from seeking indemnification from Simon, of and when there is a judgment or settlement in this matter, an indemnification claim pursuant to § 52-598a is simply premature. See also Alstom Power, Inc. v. Schwing America, Inc., United States District Court, Docket No. 3:04cv1311, p. 21 (D.Conn. September 14, 2006). This court is certainly sympathetic to the fact that, as a third-party defendant, Odyssey was itself served on the eve of the limitation period's expiration; the court is equally sensitive to the specter of wasting judicial resources by having to entertain the possibility of a subsequent action. Nevertheless, to interpret § 52-598a as the governing statute would render § 52-577a(b) a nullity. As such, this court finds that § 52-598a may not be used to bypass the limitation period which the legislature so clearly articulated in § 52-577a(b).
The motion for summary judgment is hereby granted.