Farish v. Courion Industries, Inc.

754 F.2d 1111, 40 U.C.C. Rep. Serv. (West) 857

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 11, 1985
• Docket: Nos. 82-1964, 83-2203
• Status: Published

Opinions

SPROUSE, Circuit Judge:

Under the law of Virginia prior to 1962 a person injured by a defective product could not maintain an action against the manufacturer for injuries caused by the defect without privity of contract.¹ The Virginia legislature abolished this privity requirement in 1962. We decide two separate appeals in Virginia diversity cases that have been consolidated for en banc consideration: Farish v. Courion, 722 F.2d 74 (4th Cir.1983) (Sprouse, Ervin, and Wyzanski, JJ.) and Bly v. Otis Elevator Company, 713 F.2d 1040 (4th Cir.1983) (Winter, Phillips, and Butzner, JJ.). The principal issue in both Farish and Bly is whether the statute abolishing the privity requirement applies retroactively to an injury incurred after the enactment of the statute but caused by a product manufactured and transferred prior to the statute’s enactment.

I.

Farish v. Courion

Farish involves an appeal by Dorothy M. Farish, wife and guardian of her husband, Shirley F. Farish, of the district court’s Rule 12(c) dismissal of her claim for damages for his injuries. Shirley Farish was an employee of the University of Virginia, and was working within the scope of his employment as a plumber when he was totally and permanently injured in a University Hospital elevator on April 6, 1981. He was removing a tool cart from a freight elevator when the lower part of the elevator door fell to the floor below. The unsupported top portion of the door then crashed downward, striking the rod arm which had held the lower door. The rod arm was propelled upward by the force of the blow and struck Farish in the head.

Courion² manufactured the elevator door in Missouri and sold it to the University’s contractor in 1958. Dorothy Farish, as guardian, brought this action against Courion,³ alleging negligence in the design, manufacture, testing, and inspection of the elevator door. She also alleged breach of warranty by Courion. The district court dismissed these claims because the injured party was not in privity with Courion. The panel of this court affirmed that dismissal, holding that the Virginia anti-privity statute was prospective only, and therefore did not abolish the privity requirement in actions against manufacturers for injuries caused by products manufactured and transferred prior to the enactment of the anti-privity statute.

II.

Bly v. Otis Elevator Company

Bly involves an appeal by Nancy Bly, administratrix of the estate of her son, Wayne Bly. The deceased was fatally injured in September 1979 while operating a lift truck at the Avtex Fibers Plant in Virginia where he was employed. The truck was equipped in the front with a lift mechanism used to transport large canisters throughout the factory, and in the rear with a shin-high guard designed to provide protection from objects encountered while the truck was traveling in reverse. Because the large canisters impair visibility to the front, the trucks are driven in reverse around the plant, requiring operators to look over their shoulders in the direction of travel.

The particular truck Bly was driving when he sustained injury was manufactured in Ohio by Otis’s predecessor, Baker Raulang Co., which sold the truck to the predecessor-in-interest of Avtex in 1944. Baker Raulang last exercised control over the truck in 1948, when it modified the truck’s lift mechanism.

The parties agree that Bly was injured in September 1979 when he backed his truck without looking behind him and ran into a canister perched on the front end lift of another truck. Because that canister was raised off the floor, the shin-high guard on Bly’s truck slipped underneath, and Bly was crushed between the canister and the controls of his truck.

The wrongful death action by Bly’s administratrix sought relief on the basis of negligence and breach of warranty for alleged defects in the lift truck. At the conclusion of the evidence, the district court granted Otis’s motion for a directed verdict on the negligence count, holding as a matter of law that Bly’s contributory negligence barred recovery.⁴ Accordingly, the case went to the jury solely on a theory of breach of the implied warranty of merchantability. The jury returned a verdict for Bly’s mother as administratrix on that theory and awarded her $250,000 damages.

Otis appealed to this court and the original panel deciding that appeal held that the trial court erred in instructions to the jury on the manufacturer’s duty to warn. That ground for reversal and remand is not involved in the instant appeal. In ruling against Otis on its contention that the action should have been barred by lack of privity, however, the Bly panel indicated that the Virginia anti-privity statute abolished the privity requirement in actions against the manufacturer even as to products manufactured before the enactment of the statute.⁵ Although the .trial court in Bly was instructed to try the case again, by the time it received the case on remand Farish had been decided. The trial court, basing its holding on Farish, then dismissed the case sua sponte because there was no privity between Otis and the deceased Bly. Since there was a conflict between our panel decisions in Farish and Bly on the privity issue, we granted rehearing en banc in both cases and consolidated them for this appeal. We specifically declined to rehear that portion of Farish reversed by the original panel.⁶

III.

The Consolidated Appeal: The Privity Issue

Farish and Bly contend that Virginia Code § 8.2-318 (1965), in abolishing the requirement of privity between a person injured by a product and its manufacturer, applies retroactively to products that were defectively manufactured and transferred prior to 1962 when the predecessor to this statute was passed. Va.Code Ann. § 8-654.3 (Supp.1964). Courion and Otis argue to the contrary that the 1962 statute applies only prospectively to products manufactured after 1962 even if the injuries occurred after that date.

In the last half century few substantive areas of the law have escaped disputes over the retroactive application of new principles enunciated by legislation or by judicial decisions. The field of products liability has been no exception. In many states products liability laws have evolved solely by judicial decision. In others the legislatures have reshaped these laws and in those instances the approach for determining retroactivity vel non still involves the application of the traditional rules of statutory construction to determine legislative intent. See Orland & Sieving, Retro-activity in Review: The Federal and Washington Approaches, 16 Gonzaga L.Rev. 855 (1981). The change in Virginia products liability law we are considering has been effected solely by legislation. Speidel, The Virginia “Anti-Privity” Statute: Strict Products Liability Under the Uniform Commercial Code, 51 Va.L.Rev. 804 (1965). The Supreme Court of Virginia has adopted clear and unwavering rules of statutory construction for resolving issues concerning’ retroactivity of statutes and it is under those rules that we decide the principal issue in this case.

Legislative enactments are applied prospectively unless the legislature indicates a contrary intent or the statute relates to remedies or procedural matters. Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974); Gloucester Realty Corp. v. Guthrie, 182 Va. 869, 30 S.E.2d 686 (1944); Ferguson v. Ferguson, 169 Va. 77, 87,192 S.E. 774, 777 (1937). Absent plain legislative intent, statutes will not be applied retroactively to create new duties and obligations or to disturb vested rights. Walke v. Dallas, Inc., 209 Va. 32, 161 S.E.2d 722 (1968); Phipps v. Sutherland, 201 Va. 448, 111 S.E.2d 422 (1959). Statutes in derogation of the common law are not to be extended beyond their express terms. Chesapeake & Ohio Railway v. Kinzer, 206 Va. 175, 142 S.E.2d 514 (1965); Sellers v. Bles, 198 Va. 49, 92 S.E.2d 486 (1956).

The learned trial court in Farish, during its hearing on the motion to dismiss for lack of privity, lamented that it had recently entertained a rash of questions in diversity cases on the retroactivity of statutes. It hoped for a definitive ruling from the Virginia Supreme Court providing guidance concerning statutory change of substantive rights. The Supreme Court of Virginia obliged and recently reiterated its traditional view of the manner in which to decide whether a newly enacted state statute is to be applied prospectively or retroactively. Shiflet v. Eller, 228 Va. 115, 319 S.E.2d 750 (1984); see also Sargent Electric Co. v. Woodall, 228 Va. —, 323 S.E.2d 102 (1984). In Shiflet, Justice Compton, writing for the court, observed “that ‘substantive’ rights as well as ‘vested’ rights, are included within those interests protected from retroactive application of statutes.” 319 S.E.2d at 753. After affirming that the Virginia general assembly had endorsed that concept in its codifications of 1977, the court went on to define substantive rights as those “which are not necessarily synonymous with vested rights, [but] are included within that part of the law dealing with creation of duties, rights, and obligations, as opposed to procedural or remedial law, which prescribes methods of obtaining redress or enforcement of rights.” Shiflet, 319 S.E.2d at 754 (quoting Blacks Law Dictionary 1281 (5th ed. 1979)).

In Shiflet, the Virginia Supreme Court considered whether legislation affecting the rights of joint tort-feasors was to be applied retroactively. The state legislature in 1979 enacted a “Covenant-Not-To-Sue” statute. Va.Code § 8.01-35.1 (1984). Prior to that time, an injured party’s release of one joint tort-feasor released the others. The Covenant-Not-To-Sue statute provided procedures whereby one joint tort-feasor could be released and a suit maintained against the others and provided concomitant rules governing contribution among tort-feasors and permissible recovery against unreleased tort-feasors. The injury in Shiflet occurred in 1977, suits were filed in 1979, and the Shiflets settled their claims against one joint tort-feasor in 1981, executing a “Release or Covenant Not To Sue Agreement Pursuant to Virginia Code 8.01-35.1, As Amended.”⁷ The Virginia Supreme Court held that despite the parties’ intent, the other joint tort-feasor was released under the law as it existed when the accident occurred in 1977. In holding that the 1979 “Covenant-Not-To-Sue” statute could not be applied retroactively, the court explained that the pre-1979 common law right of contribution between the joint tort-feasors carried with it a right to be released when a joint tort-feasor was released. The Court found this to be a substantive right that arose at the time the joint tort-feasor relationship was created and could not be retroactively affected by new legislation.⁸ We find the Shiflet analysis instructive in our necessary speculation as to how the Supreme Court of Virginia would view the rights affected by the Legislature’s alteration of the privity requirement. A review of the legislation and analysis of Shiflet against the background of traditional Virginia precedent leads us to conclude that the 1962 changes affected substantive rights and could not be retroactively applied.⁹

As we have indicated, the privity requirement for manufacturers’ liability was eliminated by the Virginia Legislature in 1962.

Lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably expect to use, consume, or be affected by the goods; however, this section shall not be construed to affect any litigation' pending at its effective date.

Va.Code Ann. § 8-654.3 (Supp.1964). In 1965, this statute was incorporated into the newly enacted Virginia Commercial Code, Va.Code § 8.2-318 (1965), and amended with minor changes. Significantly, the only change concerning the operative date of the privity statute was the substitution of the phrase “on June twenty-nine, nineteen hundred sixty-two” for the words “at its effective date.” The provision has remained unchanged since the 1965 amendments.¹⁰ The legislature did not expressly indicate whether this law was to operate completely prospectively or retroactively or partially prospectively and partially retroactively.

Applying the principles of statutory construction adopted by the Supreme Court of Virginia, and reasoning from its concept that substantive rights can not be retroactively altered by legislation, we are compelled to agree with the district court that the Virginia legislature intended §§ 8.01-223 and 8.2-318 to apply prospectively only from the dates of their enactments. The statutes are in derogation of the common law, and there was no legislative expression that they were to be applied retroactively. Although Farish and Bly contend that the abolition of the requirement for privity in these products liability actions does not affect substantive rights but only creates a remedy for the pursuit of rights, we firmly believe that the “antiprivity” statute was not remedial in nature but affected substantive rights. The pre1962 Virginia rule barred an individual in the chain of possession of a product from suing a manufacturer under the theory of implied warranty unless he was in privity with the manufacturer. See H.M. Gleason & Co. v. International Harvester Co., 197 Va. 255, 88 S.E.2d 904 (1955). This was not a question of procedural remedy; such an individual simply had no right to maintain an action. Similarly, the manufacturer had a right not to be sued for breach of implied warranty by a person not in privity with it. Again, we are reinforced in this belief by the court’s discussion of substantive rights in Shiflet.

This interpretation of the Virginia legislature’s intent, however, does not dispose completely of the appeal. Farish and Bly contend that Section 8.10-101 of the 1966 Virginia Commercial Code, into which the anti-privity statute was incorporated, makes the date of the accident the crucial time for determining whether the privity defense may be raised. Since the decedents’ accidents occurred in 1979 and 1981, well after the effective date of the statute abolishing privity, they argue that even a prospective application of the statute bars recognition of the privity defense in these cases.

Section 8.10-101 contains a general statement regarding the effective date of the Virginia Commercial Code: “This Act [Commercial Code] shall become effective on January one, nineteen hundred sixty-six. It applies to transactions entered into and events occurring after that date.” (Emphasis added.) This language is advanced to support the argument that the date of the accident, not the date of the sale, is the controlling transaction for determining whether the privity defense can be invoked. We find no authority for such an interpretation from the drafters of the Code, and eases from other jurisdictions vary depending on differences in statutory language and purpose.

Two cases cited by Farish and Bly — Sides v. Richard Machine Works, Inc., 406 F.2d 445 (4th Cir.1969) and Barnes v. Sears, Roebuck & Co., 406 F.2d 859 (4th Cir.1969) — hold correctly that, for the purpose of applying the statute of limitations, the clock runs from the time of the transaction fixing the liability. Those cases, however, do not bear on the “transaction” issue in this case, and indeed their citation completely obscures the question. In Sides and Barnes, the substantive duties of the defendants were not in question. The applicable law plainly recognized that the defendants were obligated to safeguard the injured parties from the sort of harm they ultimately suffered. The decisions in those cases turned on the issue of which “transactions” constituted breaches of the defendants’ recognized duties. Here, in contrast, we are concerned with whether the substantive duty to protect Farish and Bly from this sort of harm existed at all. The relevant transactions, then, are not the unfortunate accidents, but the sale of the forklift truck in 1944 (or its modification in 1948) and the sale of the elevator in 1958.

Likewise, decisions from other jurisdictions give little support to their argument. Forrest City Machine Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981); General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974); Wansor v. George Hantscho Co., Inc., 243 Ga. 91, 252 S.E.2d 623 (1979); Adams v. Buffalo Forge Company, 443 A.2d 932 (Me.1982);¹¹ Hoffman v. Howmedica, 373 Mass. 32, 364 N.E.2d 1215 (1977). The courts in those cases interpreted statutes varying both in policy, purpose and language from the Virginia statute we interpret. In view of the guidance provided by Virginia precedents defining substantive rights and the unequivocal statement of that court that neither substantive nor vested rights are affected retroactively, parsing statutes from other jurisdictions is not only unnecessary but inappropriate.

IV.

Other Issues Raised by Farish and Bly on En Banc Appeal

Both Farish and Bly argue that even if the anti-privity statute had never been enacted, lack of privity would not be a bar to their actions. They contend correctly that even if the privity doctrine were still in effect, Virginia has long excepted from its control injuries caused by inherently dangerous products. Likewise, they argue that under Virginia common law a party injured by an imminently dangerous product could sue the manufacturer even though no privity existed between the injured party and the manufacturer. Farish and Bly fail to recognize, however, that, in Virginia, these exceptions only apply in negligence actions. Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir.1962); Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir.1951); General Bronze Corp. v. Kostopulos, 203 Va. 66, 122 S.E.2d 548 (1961); Harris v. Hampton Roads Tractor & Equipment Co., 202 Va. 958, 121 S.E.2d 471 (1961). Bly’s mother as administratrix cannot avail herself of this negligence theory because the trial court held, as a matter of law, that her son was guilty of contributory negligence. She did not appeal that ruling and even if she had, a review of the evidence demonstrates that the trial court was correct in directing a verdict on that issue. Farish never raised the issue of either inherently or imminently dangerous characteristics of the products. The trial court, however, held a full hearing on Courion’s motion to dismiss for lack of privity. Courion’s counsel, in outlining the law of privity, pointed out exceptions such as inherently dangerous products, food substances, sealed containers and the like. Farish not only made no claim that the elevator door was an imminently or inherently dangerous product, but conceded that the only issue was whether or not the Virginia anti-privity statute controlled. Likewise, that issue was not presented in her briefs to the first panel of this court considering her appeal. It is well settled that we will not, in the absence of clear error, consider issues not raised in the court below. United States v. One 1971 Mercedes Benz, 542 F.2d 912 (4th Cir.1976); United States v. Chesapeake & Ohio Ry. Co., 215 F.2d 213 (4th Cir.1954).

Farish and Bly also argue that even if the privity requirement, as historically applied by the Virginia Supreme Court, bars their actions, the Virginia Supreme Court, on considering the matter anew, would take a more modern approach, cut through the privity bar and all its entanglements, and simply permit such suits to be brought by any person injured by manufactured products. The simple answer to that forlorn argument is that the Supreme Court of Virginia has spoken many times in this area, and we are not free to anticipate a hypothetical reconsideration of its view.

Finally, Bly and Farish contend that under the controlling Virginia conflict of law rule, the substantive law of Ohio and Missouri, respectively, govern the outcome of these cases. There is simply no merit to these contentions. We have held in Bilancia v. General Motors, 538 F.2d 621 (4th Cir.1976) that under Virginia law, the law of the state where the injury occurs supplies the substantive law governing warranty claims. See also White v. American Motors Sales Corp., 550 F.Supp. 1287 (W.D.Va.1982).

In view .of the above, the decisions of both district courts respectively dismissing the actions in Farish and Bly are affirmed.

AFFIRMED.

1 . At the time of the manufacture of the two products involved in these cases a number of exceptions to the privity requirement had developed in the common law of Virginia but none of them are applicable here. See Speidel, The Virgima "Anti-Privity" Statute: Strict Products Liability Under the Uniform Commercial Code, 51 Va.L.Rev. 804, 816 (1965); Emroch, Statutory Elimination of Privity Requirement in Products Liability Cases, 48 Va.L.Rev. 982 (1962).

2 . At the time the elevator doors were purchased, the company’s name was Security Fire Door Company. By reason of a corporate name change on January 9, 1976, this company was renamed Courion Industries, Inc.

3 . Farish also sued Otis Elevator Company, alleging it had negligently performed its contractual duty to inspect the elevator and door. The district court granted summary judgment to Otis based on its interpretation of an exception provision in the Virginia Workmen’s Compensation Act. This court reversed that decision and denied Otis' motion for rehearing. Farish v. Courion Industries, 722 F.2d 74, 78-81 (4th Cir.1983).

4 . The uncontradicted evidence was that after the accident, Bly stated, "I wasn’t looking where . I was going and I ran into that damn can."

5 . 713 F.2d at 1043 n. 2.

6 . It is only coincidental that Otis Elevator Company was a defendant in both Farish and Bly. In Farish it was a co-defendant with Courion. The Farish panel affirmed the district court’s dismissal of Courion on the privity grounds involved in this appeal but reversed the portion of the district court’s decision dismissing Otis on other grounds, remanding Farish v. Otis for trial. Farish v. Courion Industries, Inc., 722 F.2d 74, 79-81 (4th Cir.1983). Otis' petition for rehearing was denied in April 1984.

7 . The dissent would distinguish Shiflet from the facts of the cases sub judice because both the accident and the filing of the suit in Shiflet were prior to the enactment of the statute. It was the release, however, which involved the substantive rights discussed by the Virginia court and that occurred in 1981, after the passing of the statute.

8 . The court also held that retroactive application of the enactment would have been invalid as violative of Eller’s due process rights under the state constitution. Shiflet, 319 S.E.2d at 754 (citing Duffy v. Hartsock, 187 Va. 406, 416, 46 S.E.2d 570, 575 (1948)). See DeMars, Retrospectivity and Retroactivity of Civil Legislation Reconsidered, 10 Ohio N.L.Rev. 253 (1983); Greenblatt, Judicial Limitations on Retroactive Civil Litigation, 1954 Nw.U.L.Rev. 540.

9 . I am indebted to my colleagues, Judge Phillips and Judge Murnaghan. Judge Phillips for his dissent which, in his great style, presents a number of arguments that the majority considered and declined to accept, and to Judge Murnaghan for his fine response to Judge Phillips’ arguments. The principal thesis of the majority opinion is that Courion and Otis, prior to 1962, possessed concrete rights and that our task on review is to determine if the Virginia legislature intended to affect those rights retroactively. We, of course, view the statutes and Virginia cases in our search for the answer. A principal issue is whether the rights affected by the antiprivity statute are substantive or procedural— another is whether the Virginia legislature intended the pre-statute sales or the post-statute accidents to be the "transactions'’ effected by the anti-privity statute. We treat these and subsidiary issues. As the writer of the majority opinion, I simply disagree with Judge Phillips’ analysis of Humble Oil & Refining Co. v. Copley, 213 Va. 449, 192 S.E.2d 735 (1972) and Town of Danville v. Pace, 66 Va. (26 Gratt.) 1 (1874) as they relate to this case. Judge Murnaghan’s concurring opinion makes it happily unnecessary to respond more fully to that analysis and others in the dissent. I agree with and readily accept the reasoning expressed in the concurring opinion. Judge Murnaghan’s expressed difference with a part of the majority opinion is, in reality, not a difference. The reasoning in the majority opinion commences with the "general maxim of statutory construction” that in the absence of language to the contrary, prospective application of a statute is presumed. More than that is treated in the majority opinion, but no useful purpose would be served in extending the discussion in greater detail than that which, I believe, has been said adequately in the majority and concurring opinions.

10 . The Virginia legislature did, however, enact a complementary statute in 1966 that abolished the privity defense “[i]n cases not provided for in Section 8.2-318” in the event of death, personal injury or property damage caused by negligence. Va.Code § 8.01-223 (1984).

11 . The dissent correctly cites Adams as supportive of the rationale that the question of retroactivity/prospectivity should be determined from the dates of accidents rather than from the dates of sales. As we have indicated, there are cases from other jurisdictions on both sides of that argument but, like Adams, they involve statutes different in language and/or purpose from the Virginia statute and are of little assistance in anticipating what the Virginia court would have considered the Virginia legislature to have meant.