Opinion
No. CV01 038 27 38
February 27, 2004
MEMORANDUM OF DECISION RE (#134) DEFENDANT MORI SEIKI USA'S MOTION FOR SUMMARY JUDGMENT
On April 10, 2001, the plaintiff, Gilbert Bourne, commenced this action for personal injuries and other damages and losses he allegedly sustained on or about September 16, 1999, while working at a lathe while an employee of the defendant, Hubbell, Incorporated.
Also named as a defendant was Mori Seiki, USA, (MSUSA) a Texas corporation and a subsidiary of Mori Seiki Co., the manufacturer of the lathe.
MSUSA purchased the lathe from the Mori Sieki Co., imported it to the United States and then sold it to its distributor, Maruka Machinery Corp. of America (Maruka). On April 17, 1990, Maruka installed the lathe at the Hubbell Corporation's Newtown, Connecticut facility, where the alleged incident occurred nine and one-half years later.
The defendant MSUSA has moved this court for summary judgment in its favor for the reason that there is no genuine issue of fact that it parted with possession and control of the lathe more than ten years before the plaintiff commenced this suit.
The movant relies upon Connecticut General Statute Section 52-577a (Limitation of action based on product liability claim). That statute provides, in relevant part, "(a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c), (d) and (e), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product." (Emphasis added.) That 10-year period is referred to as "the period of repose."
In his objection to the relief sought in the motion, the plaintiff maintains that there is, indeed, a genuine issue of fact as to whether or not MSUSA parted with possession and control more than ten years before this action was commenced in so far as the fact that there was servicing done to the lathe via express warranty during the ten years before the plaintiff's claims.
"`A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book [17-49].'" Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983).
Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co., supra, p. 12.
"It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. `Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [17-45].' Bartha v. Waterbury House Wrecking Co., supra, 12. `The movant has the burden of showing the non-existence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.'" Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F. Sup. 311, 314 (D.Conn. 1962).
The defendant MSUSA offered evidence in the form of an affidavit of Michael Jouglard, an employee of MSUSA, to the effect that there was one service call performed by MSUSA after the lathe was installed. According to Jouglard, that service call took place on September 26, 1990 (more than ten years before the date of suit) and that it was done pursuant to a one-year express warranty from Mori Seiki Co. to Hubbell. A subsequent affidavit of Jouglard contained averment that while there may have been a warranty or warranties from other companies in effect during the period of repose, there were no warranties by the defendant MSUSA, which resulted in any service calls during the period of repose.
The plaintiff has offered into evidence records which indicate that after the lathe was installed, there were, in fact, eight service calls which it claims were attributable to MSUSA — either because MSUSA or Mori Seiki Company actually performed the service call or because the service call was done under a warranty running to MSUSA.
In its reply, MSUSA argues that the data proffered by the plaintiff to establish the fact of eight service calls is undocumented, inadmissable evidence, inappropriate for consideration by the court in determining this motion. That data consists of "eight pages of service records," as the plaintiff has presented them as an attachment to an affidavit by plaintiff's counsel. The affidavit explains where the documents came from — they are part of defendant's compliance with disclosure. The affidavit, however, does not authenticate the statements contained in the eight service records. There is nothing in the submissions by either side which verifies or authenticates the eight records and the information contained in them. The court sustains the objection of the defendant.
"Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "[U]ncertified copies of documents to which no affidavit exists attesting to their authenticity . . . do not constitute proof of documentary evidence for purposes of a motion for summary judgment." Lake v. Whelan, Superior Court, judicial district of Danbury, Docket No. 337163 (January 29, 2001, Moraghan, J.T.R.); Went v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 356625 (September 15, 2000, Moran, J.); Chapman v. Franford, Superior Court, judicial district of New London at New London, Docket No. 536034 (April 24, 1997, Handy, J.); Renard v. Dillman, Superior Court, judicial district of Danbury, Docket No. 322729 (June 3, 1996, Mihalakos, J.). As cited in Ciotti v. Homick, No. CV99 0155748 (May 31, 2001) 2001 Ct. Sup. 7224. Aherne v. Lifeline Systems, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0269317 (March 21, 2003, Weise, J.).
Notwithstanding the legal sparring between the parties over the issue of the propriety of the documents used to establish the number and date of service calls or the existence of warrantees, one fact remains. Only one of the service calls which the plaintiff seeks to have the court admit reportedly occurred during the period of repose — on August 28, 1991. The ten-year period of repose began on April 10, 1991, as the suit was commenced on April 10, 2001.
In Daily v. New Britain Machine Co., 200 Conn. 562 (1986), our Supreme Court considered the issue of whether a single service call might constitute the exercise of "possession or control" as that term is used in Sec. 52-577a(e). In that case, the court found that the limited contacts the defendant had with a molding machine did not constitute "control" of the machine for the purposes of 52-577a. Daily, supra, p. 565.
The court, noting that in the case before it, as in the instant case, there was only one service call which was claimed to have occurred during the period of repose, went on to note, "The plaintiffs' characterization of the last service call of [date] and the courtesy safety check of [date], as placing the defendant in either possession or control of the molding machine was fanciful at best. The trial court, in explicating the definition of `control,' was correct in stating that to interpret the facts of this case as placing control in the defendant `would stretch the English language to the breaking point.' `It is not enough that one opposing a motion for a summary judgment claims there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit.' Hartmann v. Smith, supra. The plaintiffs failed to submit adequate counter affidavits and other documentary proof to support their claims" as required by Practice Book [17-45]. Thus, because the facts as set out above are not disputed, the court was justified in concluding that the defendant was entitled to judgment as a matter of law." Id., 570.
Having considered the arguments of counsel, the affidavits and other documentation, and having considered the applicable case law, the court finds that there are no genuine issues of material fact that the defendant MSUSA parted with possession and control of the lathe, pursuant to Sec. 52-577a, more than ten years before the plaintiff commenced this suit and, for that reason, the defendant MSUSA's motion for summary judgment is hereby granted.
BY THE COURT,
JOSEPH W. DOHERTY, JUDGE