Opinion
No. CV05-5000162S
August 16, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #135
This action was commenced in March 2005 when the plaintiff, an employee of a temporary employment agency, filed a five-count complaint against the defendants, Timken US Corporation (Timken), Mal Machinery Sales, Inc. (Mal Sales) and Mal Machine Tools, LLC (Mal Tools). The plaintiff alleges that, while she was working at the Timken facility, her hand was severely injured by a defective milling machine sold by Mal Machinery Sales and/or Mal Machinery Tools and owned and maintained by Timken. The plaintiff alleges in the second count of the complaint that Mal Sales is liable to her pursuant to the Connecticut Products Liability Act, General Statutes § 52-572m, et seq.
Before the court is Mal Sales' motion for summary judgment on the ground that the statute of repose had passed before the action was brought, and therefore, it is not liable to the plaintiff. In support of its motion, Mal Sales filed an affidavit of Howard Waxler, former vice president of Mal Sales, and Timken's interrogatory responses. The plaintiff objected to the motion and requested a continuance in order to take the deposition of Howard Waxler. The motion was granted, the deposition was taken, and the court was provided with excerpts from the deposition transcript.
DISCUSSION
"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. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).
General Statutes § 52-577a(a) provides: "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 the provisions of subsections (c), (d) and (e) of this section, no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) of this section later than ten years from the date that the party last parted with possession or control of the product."
Mal Sales argues that because it sold the product to Timken in 1991, fourteen years prior to the filing of the complaint, that the statute of repose, General Statutes § 52-577a, had passed and, therefore, Mal Sales is entitled to summary judgment as a matter of law. Mal Sales contends that the fact that it provided service to the milling machine in 1996 does not affect this result because repair and service do not establish possession and control for the purpose of defeating a summary judgment motion under the statute of repose.
The plaintiff argues that there are genuine issues of fact as to when Mal Sales last parted with control and possession of the milling machine. She claims that the service done by Mal Sales in 1996 shows that Mal Sales was in control and possession of the machine within the statutory period, and therefore, summary judgment should be denied.
In Kelemen v. Rimrock Corporation, 207 Conn. 599, 606, 542 A.2d 720 (1988), our Supreme Court stated that "[i]t is essential to follow the precise direction of 52-577a(a) [which] . . . unequivocally states that no action can be brought later than ten years from the date that the party last parted with possession or control of the product."
The definitive case regarding what constitutes "possession or control" under § 52-577a(a) is Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986). In Daily, the appellate court determined that the defendant seller did not gain possession and control of an injury-causing machine based on several factors including the fact that the buyer did not relinquish physical possession of the machine at any time. Other factors included the lack of service contract, the few contacts that the seller had with the machine after the sale, the fact that the contacts were at the request of the buyer and on the premises of the buyer, and the fact that the buyer was free to have the machine repaired anywhere it chose. Where actions were brought to recover for injuries resulting from the use of a machine more than ten years after its vendor had parted with possession or control thereof, courts have continually relied on Daily v. New Britain Machine Co., and granted summary judgment when the facts indicated that the defendant lacked possession or control. See Arsenault v. Pa-Ted Spring Co., 203 Conn. 156, 523 A.2d 1283 (1987); Kelemen v. Rimrock Corp., 202 Conn. 599, 542 A.2d 720 (1988); and Currie v. Perkin Elmer Corp., Superior Court, judicial district of Stamford, Docket No. CV 93 0134043 (April 24, 1991, Karazin, J.).
In support of its contention that it parted with possession or control of the machine prior to the ten-year statute of repose period, Mal Sales submitted the affidavit of Howard Waxler, its former Vice President. In that affidavit, Waxler stated that the defendant shipped the machine to Timken's predecessor company in April of 1991. According to Waxler, the owner of the machine shipped part of the machine, the spindle carrier, to the defendant for repairs in 1996. After the repairs were made, Mal Sales shipped the spindle carrier back to the owner. In his deposition, Waxler stated that "[t]he spindle carrier is the portion of the machine that holds the rotating spindle that has the cutters attached to it on an arbor. It holds the cutters. The spindle carrier is the portion of the machine that has the . . . that rotates the spindle and allows for precision adjustments, up, down, in, out, and speed changes . . . It's a major component, and that is the only part that was shipped . . . [The milling machine] won't be a milling machine . . . without it . . ." (Deposition of Howard Waxler dated April 24, 2007, pp. 70-71).
Unlike the situation in Daily, a major component of the machine in this case was out of the owner's possession for a period of time during which Mal Sales had possession and control.
Based on the fact that a major component of the machine was in the defendant's facility for a period of time in 1996, there is a genuine issue of material fact as to whether the contact the defendant had with the machine at that time constituted possession or control sufficient to impose liability under section 52-577a. Accordingly, the motion for summary judgment is denied.