Rodia v. Tesco Corp.

527 A.2d 721, 11 Conn. App. 391, 1987 Conn. App. LEXIS 990
CourtConnecticut Appellate Court
DecidedJune 30, 1987
Docket4804
StatusPublished
Cited by51 cases

This text of 527 A.2d 721 (Rodia v. Tesco Corp.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodia v. Tesco Corp., 527 A.2d 721, 11 Conn. App. 391, 1987 Conn. App. LEXIS 990 (Colo. Ct. App. 1987).

Opinion

Borden, J.

This case involves a product liability action brought by the named plaintiff and his wife for injuries sustained by the named plaintiff while operating a forklift in the course of his employment. The plaintiffs filed suit against two defendants: Clark Equipment Company (Clark), the manufacturer of the forklift; and Tesco Corporation (Tesco), the lessor of the forklift to the plaintiffs employer, C.N. Flagg & Company, Inc. (Flagg). Flagg moved to intervene as a coplaintiff in the action pursuant to General Statutes § 31-293,1 in order to recover benefits it had paid to the named plaintiff under the Workers’ Compensation Act. The plaintiffs and the defendants objected to the motion to intervene.2 The trial court denied Flagg’s motion. The propriety of this ruling is the subject of this appeal. We find no error.

[393]*393Before addressing the merits of the trial court’s ruling, we must determine whether the denial of Flagg’s motion to intervene is properly before this court as an appealable final judgment. We have stated that “an unsuccessful applicant for intervention in the trial court does not have a final judgment from which to appeal unless he can make a colorable claim to intervention as a matter of right.” Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985). In Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980), our Supreme Court recognized that a party makes a colorable claim to intervention as of right when it seeks to intervene in a personal injury action where it has paid workers’ compensation to a plaintiff. As the court noted, this colorable claim arises out of General Statutes § 31-293. See footnote 1, supra. Since Flagg seeks to intervene in the plaintiffs’ product liability suit for the same reason, the trial court’s action is a final judgment for purposes of this appeal.

The plaintiffs and the defendants argue that Flagg is precluded from intervening in this action by the clear language of General Statutes § 52-572r (c). That statute provides in relevant part that “[njeither an employer nor . . . the insurer of such employer, shall have any lien upon any judgment received in any product liability claim, or any right of subrogation if the claim against the third party is a product liability claim.” (Emphasis added.) “ ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express [394]*394or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation or nondisclosure, whether negligent or innocent.” (Emphasis added.) General Statutes § 52-572m (b).

Flagg concedes that if the plaintiffs’ complaint sounds solely in product liability, it would be precluded from intervening since it is an “employer” under General Statutes § 52-572r (c). Flagg claims, however, that the allegations in the third count of the plaintiffs’ complaint,3 directed at Tesco, the lessor, reveal a claim for negligent repair and maintenance, which is not a prod[395]*395uct liability claim within the meaning of General Statutes § 52-572m (b). Flagg argues that the enumeration in General Statutes § 52-572m (b) is both exhaustive and exclusive of the types of conduct which will give rise to a product liability claim. Therefore, Flagg argues, because “repair” and “maintenance” are not specifically included within the statutory enumeration, the plaintiffs’ complaint does not solely state a product liability claim, and Flagg is not barred from intervening.

The plaintiffs, in their brief, have limited the scope of count three of the complaint to apply only to the failure to repair or maintain the forklift prior to its delivery to the named plaintiffs employer. We view this statement by the plaintiffs in their brief as analogous to a judicial admission and therefore binding on the plaintiffs. We see no reason not to accept this limitation, self-imposed by the plaintiffs, on the scope of their own complaint. This reading of paragraph eleven of count three; see footnote 3, supra; is consistent with the rest of the complaint, whereas a contrary reading would be inconsistent therewith. Of course, by offering this limitation the plaintiffs preclude themselves from claiming at the trial of this case any reliance on the failure to repair or maintain the forklift after its leasing by Tesco to Flagg.

Consequently, we are faced with the narrow issue of whether predelivery negligent maintenance and repair of a leased product is within the scope of a product liability claim. A lessor is a “product seller” within the meaning of General Statutes § 52-572m (a). We conclude that an allegation that a lessor negligently fails to repair or maintain its product prior to leasing it, states a “product liability claim.” General Statutes § 52-572m (b).

[396]*396The characterization of the types of conduct or activity enumerated in General Statutes § 52-572m (b) must be broadly construed in light of the purposes of the statute. A principal purpose of the product liability statute is to protect people from harm caused by defective and hazardous products. Ip order to meet this purpose, it is necessary that the statute be read to reach all conduct which affects the safety of a product prior to its entry into the stream of commerce. The terms enumerated in General Statutes § 52-572m (b) are simply generic categories of conduct which must be read broadly and in relationship to one another in order to accomplish the purposes of the statute. Thus, such generic, categorical terms as “preparation . . . installation, [and] testing,” read in light of the principal purpose of the statute which we have identified, are quite broad enough to include the failure to maintain and repair a product prior to placing it in the stream of commerce.

Our conclusion is sensible in light of the clear mandate of the product liability statute to provide the exclusive remedy in this area. Daily v. New Britain Machine Co., 200 Conn. 562, 571-72, 512 A.2d 893 (1986). The legislature could not have intended to preclude from this exclusive remedy a preleasing failure to maintain and repair which affected the safety of a product.

The cases Flagg has cited in support of its argument are inapplicable. They stand for the proposition that a “repairer” cannot be held liable under a product liability claim. Winans v. Rockwell International Corporation, 705 F.2d 1449 (5th Cir. 1983); Swensen Trucking & Excavating, Inc. v. Truckweld, Equipment Co., 604 P.2d 1113 (Alaska 1980).

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Bluebook (online)
527 A.2d 721, 11 Conn. App. 391, 1987 Conn. App. LEXIS 990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodia-v-tesco-corp-connappct-1987.