Kelemen v. Rimrock Corp.

542 A.2d 720, 207 Conn. 599, 6 U.C.C. Rep. Serv. 2d (West) 710, 1988 Conn. LEXIS 132, 1988 WL 50979
CourtSupreme Court of Connecticut
DecidedMay 24, 1988
Docket13268; 13269
StatusPublished
Cited by51 cases

This text of 542 A.2d 720 (Kelemen v. Rimrock Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelemen v. Rimrock Corp., 542 A.2d 720, 207 Conn. 599, 6 U.C.C. Rep. Serv. 2d (West) 710, 1988 Conn. LEXIS 132, 1988 WL 50979 (Colo. 1988).

Opinion

Arthur H. Healey, J.

This appeal concerns the applicability of the ten year statute of repose for prod[601]*601uct liability claims; General Statutes § 52-577a (a);1 to an action filed by the plaintiff, David Kelemen, Sr., against the defendant, Rimrock Corporation.2 The trial court, Harrigan, J., found that the defendant had parted with possession and control of the product in question over ten years before the action had been initiated, thus barring the claim. We find no error.

The evidence before the trial court revealed the following facts. The plaintiff was employed by Teledyne Mt. Vernon Die Casting Corporation (Teledyne), the intervening plaintiff in this action, when he was injured by a filler cap that blew off a compression tank on May 23, 1978. On May 21, 1981, the plaintiff filed an action against the defendant, the manufacturer of the tank that had sold the compression tank to Teledyne. An amended complaint dated May 18, 1987, brought the action under Connecticut’s product liability statutes, General Statutes § 52-572m et seq. The defendant raised a special defense of the statute of repose, alleging that it had parted with possession or control of the compression tank on May 18,1971, when it placed the tank on a carrier for delivery to Teledyne. General [602]*602Statutes § 52-577a (a). The parties agreed to waive their right to a trial by jury on the special defense, and a hearing was held before the court to determine this issue. The defendant produced one witness, Arthur R. Prince, a longtime employee of the defendant, on this issue raised by the special defense. He testified that he had shipped the compression tank in question on May 18,1971, from the defendant’s plant in Columbus, Ohio, by loading it on a truck owned by Cooper-Jarrett, Inc., a motor carrier. Prince also testified that the contract provided for F.O.B., Columbus, Ohio; that the defendant did not pay shipping costs and that all its responsibility for the tank had ended when it had been loaded on the carrier. The defendant offered no evidence concerning when the shipment had arrived at Teledyne’s place of business. The defendant’s invoice contained the following language: “Terms: Net 30 Days - All Goods F.O.B. Columbus, Ohio.” The invoice also contained the following language: “All orders accepted and all agreements are subject to delays occasioned by accident, strikes, fires and causes beyond our control. Our responsibility ceases when goods have been delivered to carrier. No goods accepted for return without our approval.” The trial court concluded that the defendant had parted with possession and control of the pressure tank on May 18, 1971, and that the ten year statute of repose therefore barred the plaintiff’s action.

The plaintiff lists five claims on this appeal, but these are more appropriately divided into three issues. The plaintiff contends that the trial court erred in: (1) applying the standards of possession and control under the Uniform Commercial Code (code) and Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986); (2) finding that a letter from the defendant did not constitute continuing control of the compression tank; and (3) holding that General Statutes § 52-577a (a) is constitutional.

[603]*603I

The plaintiff claims that the trial court erred when it applied the risk of loss provision of the code to arrive at its conclusion that the defendant parted with possession and control of the compression tank on May 18, 1971. He contends that the code does not define “possession” and “control” and that the risk of loss provision is not concerned with possession, making any reliance on that specific provision inapposite. On the other hand, the defendant asserts that the trial court correctly applied the standards of possession and control set out in Daily v. New Britain Machine Co., supra. The trial court, although it acknowledged the Daily definitions extensively, appeared to rely heavily on General Statutes § 42a-2-509,3 the risk of loss provision of the code. We conclude that such reliance was erroneous because that section was drafted to serve specific purposes that are unrelated to preconditions of statutes of repose. See J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 5-1. Nevertheless, applying the Daily definitions of possession and control to the F.O.B. provision of the contract leads us to the same conclusion as the trial court.

This court discussed the definitions of the words “possession” and “control” in Daily, a case where the plaintiff argued that a courtesy check and service call within ten years of a product liability claim constituted possession or control, leaving the defendant liable under [604]*604the statute. There, the trial court held in its memorandum of decision that, “[a]s the terms are not defined in the statute, they are to be accorded their ordinary meaning.” Daily v. New Britain Machine Co., supra, 566-67 n.6. The Daily court then quoted a number of dictionary definitions of possession and control, which had been compiled by the trial court.4 In Daily, we concluded that the actions of the manufacturer did not constitute possession or control as those words are commonly understood. Id., 569. We will undertake a similar analysis in this case.

Neither § 52-577a (a) nor the code define the words “possession” or “control.” “ ‘Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.’ Doe v. Manson, [183 Conn. 183, 186, 438 A.2d 859 (1981)]; Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979).” Johnson v. Manson, [605]*605196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). Webster’s Third New International Dictionary defines “possession” as “the act or condition of having in or taking into one’s control or having at one’s disposal . . . .” “Control” is defined by Webster’s as the “power or authority to guide or manage: directing or restraining domination.” Accord Daily v. New Britain Machine Co., supra, 566-67 n.6.

In deciding how to allocate control and possession of contract goods, contracting parties sometimes include trade terms such as F.O.B. The applicable code provision, General Statutes § 42a-2-319 (1), defines an F.O.B. shipment contract as follows: “Unless otherwise agreed the term F.O.B., which means ‘free on board,’ at a named place, even though used only in connection with the stated price, is a delivery term under which (a) when the term is F.O.B. the place of shipment, the seller must at that place ship the goods in the manner provided in section 42a-2-504 and bear the expense and risk of putting them into the possession of the carrier . . . .” Since the contract provided for F.O.B. Columbus, Ohio, and no variation was made by mutual agreement, the contract to ship the compression tank is governed by the rules concerning F.O.B. shipment contracts.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tofolowsky v. Bilow, No. Cv97 0063795 (Mar. 17, 2003)
2003 Conn. Super. Ct. 3469 (Connecticut Superior Court, 2003)
Thomas v. Mazak Corp.
234 F. Supp. 2d 135 (D. Connecticut, 2002)
Sipples v. Lewis, No. 557403 (Jul. 9, 2002)
2002 Conn. Super. Ct. 8450 (Connecticut Superior Court, 2002)
Raymond v. Norwalk Zba, No. Cv 98 035 44 34s (May 1, 2001)
2001 Conn. Super. Ct. 7303 (Connecticut Superior Court, 2001)
Raymond v. Norwalk Z. B. of App., No. Cv 98 035 44 34s (Apr. 30, 2001)
2001 Conn. Super. Ct. 5741-fj (Connecticut Superior Court, 2001)
Sullivan v. Town of Monroe, No. Cv00 37 05 45 (Jun. 30, 2000)
2000 Conn. Super. Ct. 7960 (Connecticut Superior Court, 2000)
Miller v. Sterling Extruder Co., No. Cv96 0056563s (Jun. 28, 2000)
2000 Conn. Super. Ct. 7691 (Connecticut Superior Court, 2000)
Anufrijevas v. Am. Photography Appliance, No. Cv98 0064574s (Mar. 7, 2000)
2000 Conn. Super. Ct. 3275 (Connecticut Superior Court, 2000)
State v. Valinski
731 A.2d 311 (Connecticut Appellate Court, 1999)
Cucuel v. Fayed, No. Cv 94 315420 (Feb. 28, 1997)
1997 Conn. Super. Ct. 1572 (Connecticut Superior Court, 1997)
Allstate Insurance v. Carabetta Enterprise, No. 0123842 (May 22, 1996)
1996 Conn. Super. Ct. 4010-SS (Connecticut Superior Court, 1996)
Castagno v. Wholean, No. 076161 (Dec. 13, 1995)
1995 Conn. Super. Ct. 14601 (Connecticut Superior Court, 1995)
Castagno v. Wholean, No. 07 61 61 (Nov. 30, 1995)
1995 Conn. Super. Ct. 13359 (Connecticut Superior Court, 1995)
Rosado v. Roman Catholic Diocesan Corp., No. Cv93302072 (Jun 2, 1995)
1995 Conn. Super. Ct. 6727 (Connecticut Superior Court, 1995)
Currie v. Perkin Elmer Corp., No. Cv93 0134043s (Apr. 24, 1995)
1995 Conn. Super. Ct. 4241 (Connecticut Superior Court, 1995)
Atlantic Mut. Cos. v. Hbr. Vil. Ltd. Part., No. Cv92 0127542 (Dec. 7, 1994)
1994 Conn. Super. Ct. 12387 (Connecticut Superior Court, 1994)
Sanborn v. Greenwald, No. Cv92 51159 (Nov. 15, 1994)
1994 Conn. Super. Ct. 12087 (Connecticut Superior Court, 1994)
Russell v. Gateway Bank, No. Cv92 29 97 90 S (Aug. 22, 1994)
1994 Conn. Super. Ct. 8360 (Connecticut Superior Court, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
542 A.2d 720, 207 Conn. 599, 6 U.C.C. Rep. Serv. 2d (West) 710, 1988 Conn. LEXIS 132, 1988 WL 50979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelemen-v-rimrock-corp-conn-1988.