NICHOLSON v. UNITED TECHNOLOGIES CORP.

Civ. No. H-86-1355 (PCD)

697 F. Supp. 598 (1988) | Cited 0 times | D. Connecticut | October 11, 1988

RULING ON PENDING MOTIONS

Facts and Procedural History

On January 6, 1985, plaintiff and the four individualthird-party defendants were repairing the landing gear of aCH-54B helicopter. The landing gear was manufactured bydefendant/third-party plaintiff United Technologies Corporation("UTC"). Plaintiff and third-party defendants were federal civilservice technicians employed at the Army Aviation SupportFacility in Windsor Locks, Connecticut. The noselanding gear allegedly exploded causing injury to plaintiff. Suitwas commenced in Superior Court on August 5, 1985, allegingliability under Conn.Gen.Stat. § 52-572m, claiming negligence,breach of warranty, strict liability, and failure to warn. UTCimpleaded the third-party defendants alleging that, if it wasliable, third-party defendants, as the active tort-feasors wereobliged to indemnify it. Third-party defendants removed theaction to this court on October 8, 1986. On November 24, 1986,UTC added a fifth third-party defendant — the United States.

I. Defendant/Third-Party Plaintiff's Motion for Summary Judgment

UTC now moves that summary judgment be entered in its favor asto each count for the following reasons:

1. The claims are barred by the applicable statute oflimitations (ninth affirmative defense).

2. There are no facts in dispute as to the lack of any designdefect in the forward landing gear strut.

3. Plaintiff's injury was not proximately caused by any defectin the strut.

4. The doctrines of product misuse and knowing use of a productin a dangerous condition bar plaintiff's claims (first, fifth andsixth affirmative defenses).

5. The government contractor defense bars plaintiff's recoveryas to any failure to warn (second and third affirmativedefenses).

UTC also seeks partial summary judgment on its eighthaffirmative defense claiming a right to set-off any compensationpaid by the federal government pursuant to § 52-572r in the eventthe joint motion for summary judgment of the third-partydefendants is granted as to the United States.

A. Statute of Limitations

Plaintiff has invoked Connecticut's Product Liability Act,Conn.Gen.Stat. § 52-572m, et seq. The statute of limitationsapplicable to such claims, § 52-577a, provides:

(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 . . . later than ten years from the date that the party last parted with possession or control of the product.

(c) The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under Chapter 568, provided the claimant can prove that the harm occurred during the useful safe life of the product.

UTC argues that, since the strut in question was designed andsold by it more than ten years prior to August 5, 1985,plaintiff's claims are barred under § 52-577a(a). Plaintiffcounters arguing that UTC last had possession or control of theproduct between May and October 1982 for extensive repairs afterthe helicopter suffered tornado damage. Thus, they claim thatthey had "possession or control" of the product well within theten year limitation period.

Evidence of a single service call and a courtesy safety checkwas held insufficient to establish a genuine issue of materialfact as to "possession or control" under § 52-577a(a). Daily v.New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986).

Here, plaintiff has adduced sufficient facts to defeat summaryjudgment. Plaintiff's supporting documentation outlines theextent and degree of defendant's possession and repair of thehelicopter. Contracts required UTC to inspect and repair thehelicopter, including the landing gear mechanisms. SeePlaintiff's Material Facts Not in Dispute at ¶ 1; Exhibit B.Further, UTC sought permission to return the helicopter beforecompletion of all the repairs. Id. These facts are undisputed andcreateat least an issue of fact as to the extent of UTC's possessionand control of the helicopter.

Plaintiff also argues that whether or not his injury occurredwithin its useful safe life is a question of fact for the trierof fact. Conn.Gen.Stat. § 52-577a(c). Plaintiff has alleged thathe was not and is not entitled to compensation under theConnecticut Workers' Compensation Act; Chapter 568,Conn.Gen.Stat. § 31-275, et seq. See Plaintiff's Material FactsNot in Dispute at ¶ 2; Plaintiff's Affidavit, Exhibit A. Thus,the products liability action would not be time-barred if theproduct was within its useful safe life at the time of theinjury. As this also presents a material question of fact,summary judgment is inappropriate. See Habenicht v. Sturm, Ruger& Co., 660 F. Supp. 52, 56 (D.Conn. 1986); Kelley v. The GoodyearTire & Rubber Co., 700 F. Supp. 91 (D.Conn. 1987), Ruling onMotion for Summary Judgment at 8. Accordingly, UTC's motion forsummary judgment is denied based on the statute of limitations.

B. Design Defect

UTC claims that plaintiff has produced no admissible experttestimony to suggest a design defect in the forward landing gearstrut and thus there is no material question of fact as to theclaim of a defect in the strut. Summary judgment is inappropriateif plaintiff has adduced evidence which substantiates thenecessary elements of his claim. Celotex Corp. v. Catrett,477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining the existence of a genuine issue, allambiguities must be resolved and all reasonable inferences drawnin favor of the non-moving party. Donahue v. Windsor Locks Bd. ofFire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Material questionsof fact exist as to the defective design of the forward landinggear strut. Plaintiff's expert, Robert Norton, in his depositionof March 30, 1988, testified that the landing gear strut wasdefective because it failed to prevent or minimize clogging ofthe schraeder valve, resulting in captured pressure in thechamber which led to the explosion causing plaintiff's injury.See Deposition of Norton at 39-40, 89. Mr. Norton's opinion wasbased on the accident reports, the maintenance manual, andtechnical drawings. Id. at 41-42. From this it could be foundthat the strut design was defective. Trial will be necessary toresolve that issue.

UTC argues that Mr. Norton's opinion should not be consideredbecause in his deposition he disclaimed the defect for which hewas disclosed as a supportive expert. Plaintiff disclosed thatMr. Norton's opinion was "[t]hat the location and design of theair filler/vent valve . . . is such as to be subject to cloggingand it need not have been so, if properly designed." Plaintiff'sSupplemental Discovery Response at 1. The isolated excerptsprovided by UTC do not require a finding that Mr. Nortondisclaimed the vent valve defect about which he was to testify.Mr. Norton did testify that the schraeder valve was defectivelydesigned in that it was subject to clogging. This opinion isconsistent with plaintiff's disclosure of expert testimony.Although portions of Mr. Norton's depositions may discredit hisopinion, his credibility is to be decided by the trier of factand not on a motion for summary judgment. Since issues of factexist on plaintiff's design defect claims, UTC's motion forsummary judgment is denied.

C. Proximate Cause

UTC first claims that there is no evidence that any defect inthe design of the vent valve actually contributed to plaintiff'sinjuries. Second, it argues that the condition of the valve wasknown to plaintiff and his co-workers, whose intervening conductactually caused the injury.

Plaintiff has offered evidence suggesting that a defect in thevent valve led to the explosion which caused his injuries. Indetermining whether a genuine issue has been raised, a court mustdraw all reasonable inferences against the moving party. Donahue,834 F.2d at 57. Plaintiff's expert, Robert Norton, has testifiedthat his opinion was that the vent valve was defectively designedin that it was subject to clogging. He went on to state that "thevalve was clogged by some debris during the bleeding process,thus leaving captured air pressure in the chamber which led tothe explosion of the one that was drilled out." Deposition ofNorton at 89. Plaintiff, in his affidavit, states that he waspositioned in the path of the explosion and suffered extensiveinjuries as a result. Affidavit of Nicholson at ¶ 8. Assumingthese allegations by plaintiff are factually correct for purposesof this motion, plaintiff's showing defeats UTC's claim that noevidence exists to show plaintiff's injury was proximately causedby any defect in the strut. A jury could find, based on Norton'stestimony, that because the clogging occurred in the course ofbleeding, the design was susceptible to causing the clogging andthus defective.

UTC also argues that plaintiff and his co-workers knew of thecondition of the valve and their intervening conduct actuallycaused plaintiff's injury. It claims that the decision ofplaintiff and his co-workers to drill the pins out of the strut,in the course of which the explosion occurred, cannot be said tohave been reasonably anticipated as a course of action to be usedto rectify the clogged condition. Further, it alleges that theCH-54B manual does not specify a procedure for drilling the pinsout of the restricting cap of the nose landing gear strut andthat such action was unreasonable. Affidavit of Rosario Rossi at¶¶ 4, 5.

Plaintiff's affidavit asserts that neither he nor hisco-workers had any idea the strut was still pressurized when theyattempted to disassemble it. Affidavit of Nicholson at ¶¶ 6, 7.He claims that the vent valve was loosened, he heard pressureescape, and the strut collapsed. Id. This evidence contradictsUTC's allegations that plaintiff and his co-workers were awarethat dangerous residual pressure remained in the strut.

Further, plaintiff's expert testified that the decision todrill out the pins in the strut was not unreasonable under thecircumstances. Deposition of Norton at 2-28 to 2-29. He assumedthat the service personnel were not aware of residual pressure inthe strut, they were having difficulty in removing the pins todisassemble the strut and the maintenance manual contained nowarnings of the danger in drilling out the pins. Id. Thatevidence counters UTC's allegations and demonstrates an issue offact as to the likelihood and reasonableness of the actions ofplaintiff and his co-workers and whether those actions were anintervening superceding cause of plaintiff's injuries. For theforegoing reasons, summary judgment is inappropriate and UTC'smotion is denied.

D. Product Misuse

On the same facts, UTC also claims that drilling out the pinsconstitutes product misuse and bars plaintiff's recovery.

Product misuse and knowing use of a product in a dangerouscondition may bar products liability claims. Conn.Gen.Stat. §52-572l. Product misuse has been defined as the use of a productin a manner not reasonably foreseeable to the defendant,knowingly using a product in a defective condition and includingactual knowledge of a dangerous condition. Norrie v. Heil Co.,203 Conn. 594, 600-02, 525 A.2d 1332 (1987); see also Kelly v.Deere & Co., 627 F. Supp. 564, 565 (D.Conn. 1986).

As discussed above, there is evidence which supports thereasonableness of the decision to drill the pins out of the strutand which supports a finding that he and his co-workers had noknowledge that dangerous pressurization remained in the strut.Thus, issues of fact exist as to product misuse and plaintiff'sknowledge of any defective condition and, therefore, summaryjudgment is denied on this defense.

E. Government Contractor Defense

UTC claims the government contractor defense in UTC's secondand third affirmative defenses bars plaintiff's claims. Plaintiffalleges that UTC was under a duty to provide instructions andwarnings concerning dangers in repairing or disassemblingthe nose landing gear strut, which they assert was defectivelydesigned. See Complaint, First Count, ¶ 8(i-k); Plaintiff'sMaterial Facts Not in Dispute, ¶ 5; Exhibit D.

In Boyle v. UTC, ___ U.S. ___, 108 S.Ct. 2510, 101 L.Ed.2d 442(1988), the Court held that "liability for design defects inmilitary equipment cannot be imposed, pursuant to state law, when(1) the United States approved reasonably precise specifications;(2) the equipment conformed to those specifications; and (3) thesupplier warned the United States about the dangers in the use ofthe equipment that were known to the supplier but not the UnitedStates." Id. 108 S.Ct. at 2518. The Court found that astate-imposed duty of care as an asserted basis for acontractor's liability was in direct conflict with the dutyimposed by the government contract and thus state tort law mustbe displaced. Id.

The Supreme Court in Boyle did not consider whether a failureto warn claim may be barred by the government contract defense.Product liability suits generally involve claims based on eithera theory of defective manufacturing, defective design, or failureto warn. Ramey v. Martin-Baker Aircraft Co., 656 F. Supp. 984, 999(D.Md. 1987). The government contractor defense does not shieldgovernment contractors from liability for manufacturing defects,i.e., the manufacturer did not comply with the government'sdesign specifications. McKay v. Rockwell Int'l Corp.,704 F.2d 444, 448 n. 6 (9th Cir. 1983); Foster v. Day & Zimmerman, Inc.,502 F.2d 867 (8th Cir. 1974). Further, the Supreme Court hasspecifically stated that the government contractors defenseinsulates government contractors from liability in design defectcases. Boyle, 108 S.Ct. at 2518.

Neither party has extensively addressed the issue of whetherthe defense will bar a duty to warn claim beyond the conclusoryassertions that it does or does not apply. It seems that theanswer depends on how the failure to warn claim is asserted andthe analysis used. Ramey, 656 F. Supp. at 999. In some cases, dutyto warn claims merely repeat design defects. See Koutsoubos v.Boeing Vertol, 553 F. Supp. 340, 344 (E.D.Pa. 1982), aff'd,755 F.2d 352 (3d Cir. 1985) (plaintiff's claim that defendant failedto warn of dangers associated with the improperly designedaircraft found to be repetitive of assertions concerning designdefects). Duty to warn claims can also be viewed as a type ofdesign defect under the theory that warnings in general aresafety components of the product.1 Ramey, 656 F. Supp. at 999.

Plaintiff asserts a failure to provide adequate warnings andinstructions concerning repair and disassembly of the forwardlanding gear strut in the CH-54B maintenance manual and not anyindependent duty to warn. See Deposition of Norton at 2-25 to2-28; 2-51; Plaintiff's Material Facts Not in Dispute at ¶ 5;Exhibit D. UTC seeks immunity under the government contractordefense because it claims the government controlled the contentsof the CH-54B manual. See UTC's Memorandum in Support at 18.

In order to decide whether the government contractor defenseapplies to the duty to warn claims at issue, it is necessary todiscuss the policy behind the defense as set out in Boyle anddetermine if it applies equally as well in this setting. Thegovernment contractor defense grew out of the historic principleof sovereign immunity. When a contractor acts under the authorityand control of the United States, it shares in the immunityenjoyed by the government. Yearsley v. W.A. Ross Constr. Co.,309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940). The defense promotesthe federal interest in military procurement and protects thegovernment officers in making military judgments about the designof equipment. Boyle, 108 S.Ct. at 2517-18.

When the government provides or approves specifications of aproduct which calls for some safeguards but not others, thegovernment contractor is not under a duty to provide every knownsafety devicewhere it is not called for by the government contract. See Id.108 S.Ct. at 2518; Ramey, 656 F. Supp. at 999. The choice is thatof the government. The contractor is obliged to the government'sdecision. The same is undoubtedly true if the government provides"reasonably precise" specifications for the contents of amaintenance manual. A contractor should not be held liable fordeficiencies in the contents of a maintenance manual if thecontents are dictated by the government.

Liability for failure to warn as asserted in this case wouldhave the same negative effects on military procurement as wasoutlined in Boyle, 108 S.Ct. at 2515. Further, the government'sdecision on the contents of a maintenance manual involves thesame balancing of technical, military and even socialconsiderations protected in Boyle. Id. 108 S.Ct. at 2517.

Because the policy justifications underlying the governmentcontractor defense apply equally well regardless of whether theaction is based on an allegedly dangerous design defect or afailure to provide adequate warnings and instructions, thegovernment contractor defense can function as an affirmativedefense against both claims.2 See Bynum v. FMC Corp.,770 F.2d 556, 574 & n. 24 (5th Cir. 1985); Ramey, 656 F. Supp. at 1000. Thefirst two elements of the government contractor defense requireUTC to show that it acted pursuant to and in conformity with"reasonably precise" specifications established or approved bythe government concerning the contents of the CH-54B maintenancemanual. Under Fed.R.Civ.P. 56(c), the party seeking summaryjudgment "always bears the initial responsibility of informingthe district court of the basis for its motion and identifyingthose portions of [the record] which it believes demonstrate theabsence of a genuine issue of material fact." Celotex Corp., 477U.S. at 323, 106 S.Ct. at 2553.

In support of its motion, UTC has provided a summary of thegovernment's involvement in compiling and amending the CH-54Bmanual. See Defendant's Memorandum in Support at 18 andsupporting documentation. This evidence establishes the followingundisputed material facts.

UTC undertook no action with respect to the CH-54B manualsother than that under contract with the government and inconformity with government specifications. Affidavit of HowardCarpenter at ¶¶ 5, 6. The government maintained control over thecontents of the manual and made revisions to the contents withoutthe consultation or knowledge of UTC. Id. at ¶¶ 7, 8. Further, inconnection with revisions made pursuant to government contract,government personnel, including users of the manual, contributedthe majority of expertise into the proposed changes to themanual. Id. at ¶¶ 9, 10.

In addition to showing the government provided it withspecifications, UTC must show that such specifications were"reasonably precise." Boyle, 108 S.Ct. at 2518. UTC has appendedthe contract and specifications under which it acted in revisingthe CH-54B Manual. See Defendant's Statement of Material FactsNot in Dispute at ¶¶ 15, 16 and supporting documentation. Thespecifications outline the requested changes to the manual andthen identify each specific page requiring change. Id. Thespecifications also refer to government furnished data which isused in developing the manuals. Lastly, such revisions weresubject to government review and approval. UTC has thusadequately demonstrated that the government provided reasonablydetailed specifications for the contents of the maintenancemanual.

The last requirement of the government contractor defense isthat the supplier have warned the United States about the dangersin the use of the equipment that were known to the supplier butnot the United States. Boyle, 108 S.Ct. at 2518. UTC has comeforward with evidence that it was aware of no hazard posed by thelanding gear strut when the maintenance manual was drafted, nordid it subsequently become aware of any scientific knowledgesupporting the existence of a hazard. See Defendant's MaterialFacts in Dispute at ¶ 19; Affidavit of Peruzzi at ¶ 4. On theother hand, plaintiff has come forward with no evidence that UTCknew or should have known about a defect and thus should havewarned the government. See, e.g., Boyle v. U.T.C., 792 F.2d 413,415 (4th Cir. 1986); Bynum, 770 F.2d at 577. Accordingly,plaintiff has not discharged his summary judgment burden and UTCis entitled to judgment as a matter of law as to plaintiff'sfailure to warn claims under the government contractor defense.

F. Applicability of Conn.Gen.Stat. § 52-572r

UTC argues that it is entitled to set off any compensationreceived by plaintiff under the Federal Employee's CompensationAct ("FECA"), 5 U.S.C. § 8101-8151, against any judgmentrendered against it. It argues that, if the United States istreated as a private employer under Connecticut law for purposesof the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, etseq., and thus accorded immunity from UTC's third-party action,see Section IIA infra, then the court should apply the entireConnecticut Workers' Compensation Act to the case.

Section 52-572r(b) provides that any verdict or settlementagainst a third-party, here UTC, shall be reduced by any amountspaid to plaintiff as compensation under the provisions of Chapter568, Connecticut Workers' Compensation Act. It is undisputed thatplaintiff has received compensation only under FECA, rather thanunder the Connecticut Act and consequently the set off is notdirectly applicable to this case.

UTC argues that it is inconsistent and inequitable to look toConnecticut law in determining immunity under FTCA and not toapply that same law to the issue of a set off. UTC brought itsaction for indemnification against the United States pursuant toFTCA, 28 U.S.C. § 1346(b), 2674. FTCA mandates the application,by way of analogy, of state substantive law only to determinewhether a right of action would exist under "like circumstances."General Elec. Co. v. United States, 813 F.2d 1273, 1275 & n. 1(4th Cir. 1987). Once that determination is made and the UnitedStates is held immune from suit, state substantive law isirrelevant to the relationship between the United States and itsemployee under FECA. Further, the fact that the United States canrecover payments made to the injured employee under FECA,5 U.S.C. § 8132, should the employer recover from a third-party,does not prevent the United States from establishing immunityunder FTCA. See, e.g., Insurance Co. of North America v. UnitedStates, 643 F. Supp. 465, 468-69 (M.D.Ga. 1986). Further, to allowthe offset would conflict with the reimbursement for FECApayments to which the United States is entitled. 5 U.S.C. § 8131,8132.

For the foregoing reasons, UTC's motion for summary judgment onthis issue is denied.3

II. Third-Party Defendants' Joint Motion for Summary Judgment

A. Indemnification Against the United States

UTC's claim against the United States for indemnification hasbeen brought pursuant to the FTCA, 28 U.S.C. § 1346(b),2671-2680. FTCA is a limited waiver of sovereignimmunity which grants the district courts exclusive jurisdictionover suits for money damages against the United States for"personal injury . . . caused by the negligent act or omission ofany employee of the government while acting within the scope ofhis . . . employment, under circumstances where the UnitedStates, if a private person, would be liable to the claimant inaccordance with the law of the place where the act or omissionoccurred." 28 U.S.C. § 1346(b). It is undisputed that theaccident which is the basis of plaintiff's claim occurred inConnecticut and, therefore, Connecticut law controls theliability of the United States for indemnity. Further FTCA"permits an indemnification action against the United states `inthe same manner and to the same extent' that the action would lieagainst `a private individual under like circumstances.'"Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 198, 103S.Ct. 1033, 1038, 74 L.Ed.2d 911 (1982); 28 U.S.C. § 2674.4

Under Connecticut law an employer who complies with theConnecticut Workers' Compensation Act, § 31-275, et seq., isimmune from any damages actions brought by injured employees.Conn.Gen.Stat. § 31-284. This exclusivity provision extends tobar third party claims for indemnity as well.

The United States, as an employer, is not covered by theConnecticut Workers' Compensation Act. Rather, plaintiff in thiscase received benefits under FECA, 5 U.S.C. § 8101-8151. SeeThird-Party Defendant's Material Facts Not in Dispute at ¶ 4.Thus, the issue becomes whether a private employer, "under likecircumstances," could be held liable for indemnification underConnecticut law. The term "under like circumstances" as found in28 U.S.C. § 2674 has been construed to support an analogy betweenthe United States' compliance with FECA and a private employer'scompliance with state compensation law. See General Elec., 813F.2d at 1275 & n. 1; In re All Maine Asbestos Litigation,772 F.2d 1023, 1028 (1st Cir. 1985).

This court finds that a private employer "under likecircumstances" would be immune from liability arising from anemployee's injuries where it secured compensation for itsemployee under the Connecticut Workers' Compensation Act.Similarly, the United States, by virtue of its compliance withFECA, is entitled to claim the same immunity. See General Elec.,813 F.2d at 1276. "To hold otherwise would be to place the UnitedStates in a position less favorable than that of any privateemployer under the [Connecticut] statute." Id. See also, Roelofsv. United States, 501 F.2d 87, 92-93 (5th Cir. 1974) (stateworkers' compensation system, including defenses available tocovered employers, is the law applied to the United States underFTCA even though the government was not in actuality coveredunder the state compensation law). Accordingly, UTC's third-partyclaims are barred pursuant to 28 U.S.C. § 2674 and summaryjudgment is granted as to the United States.

B. Indemnification Against the Individual Third-Party Defendants

Defendant/third-party plaintiff, UTC, impleaded the individualthird-party defendants (Chet Goralski, Giovanni Lenoci, DonaldNordell and Wilhelm Yungk), claiming indemnity under theactive/passive liability formulation applicable under Connecticutlaw. See Objection of Defendant/Third-Party Plaintiff to JointMotion for Summary Judgment at 2. UTC's sole theory is that anybreach of duty on its part was passive or remote and the conductof the individual third-party defendants on the day of theincident constituted the activenegligence which caused plaintiff's injuries. Thus, UTC seeksreimbursement or indemnification from the third-party defendantsfor any liability to plaintiff.

In general, passive negligence is limited to constructive ortechnical fault, i.e., where an employer is held vicariouslyliable for the acts of an employee. See Gomeau v. Forrest,176 Conn. 523, 528, 409 A.2d 1006 (1979); In re General DynamicsAsbestos Cases, 602 F. Supp. 497, 500-01 (D.Conn. 1984). In thiscase, plaintiff's product liability claims allege defectivedesign and failure to warn. Assuming arguendo that the conduct ofthe individual third-party defendants constitutes activenegligence on their part, this does not establish that UTC wasonly passively negligent. At best, such allegations, if proven,would make them joint tortfeasors.

Plaintiff's complaint bases UTC's potential liability on itsactions in designing the product at issue and on deficiencies inthe maintenance manual. Its tort feasance is thus parallel tothat alleged against the individual third-party defendants. Anyliability of the individual third-party plaintiff's arises fromtheir repair of the landing gear strut. It cannot be said thatUTC's potential liability flows vicariously from acts of thethird-party defendants, but rather, stems from its own acts oromissions. See General Dynamics, 602 F. Supp. at 501; Esckelson v.R.L. Best, Civil No. H-84-1003 (D.Conn. Oct. 29, 1986), Ruling onMotion to Strike at 3-4; see also Weintraub v. Dahn,188 Conn. 570, 573, 452 A.2d 117 (1982). Accordingly, UTC's potentialliability cannot be characterized as passive and is nottransferable through indemnity. See Mable v. Bass TransportationCo., 40 Conn. Sup. 253, 257-58, 490 A.2d 548 (Conn. Sup. 1983),aff'd, 3 Conn. App. 547, 490 A.2d 538 (1985) (existence of anactive/passive relationship needed to state cause of action inindemnity).

Further, the Connecticut Supreme Court in Kyrtatas v. Stop &Shop, Inc., 205 Conn. 694, 535 A.2d 357 (1988), held that theConnecticut Products Liability Act, Conn.Gen.Stat. § 52-572m, etseq., abrogated common law indemnification in products liabilitycases. The court ruled that an action based on active/passiveindemnification did not apply in a statutory product liabilityaction in which all potential defendants are parties to the suit,whether sued by plaintiff or impleaded by defendant. Id. at702-03 & n. 2, 535 A.2d 357.

The court concluded that indemnification was inconsistent withthe provisions of the product liability act establishingcomparative responsibility and contribution. Conn.Gen.Stat. §52-572o. Indemnification involves a claim for reimbursement infull from one primarily liable, while contribution involvesreimbursement of a share of a payment made by claimant that wasattributable to a joint-tortfeasor. Kaplan v. Merberg WreckingCorp., 152 Conn. 405, 412, 207 A.2d 732 (1965). Permitting anaction for contribution eliminated the need for indemnificationin product liability suits. Kyrtatas, 205 Conn. at 701,535 A.2d 357.

Accordingly, UTC's claim for indemnification against theindividual third-party defendants on the active/passiveresponsibility theory must fail and the third-party defendants'motion for summary judgment on this claim is granted.

III. Motions for Sanctions

UTC moves for the entry of sanctions against plaintiff in theform of attorney fees, monetary fines, and preclusion of evidenceat trial, based upon plaintiff's improper discovery responses andother pleadings, which are claimed to be inconsistent and inviolation of this court's orders. Rule 37(b), Fed.R.Civ.P.,allows a court, in its discretion, to impose appropriatesanctions when a party fails to obey an order compellingdiscovery.

Initially, UTC claims plaintiff failed to comply with aspectsof this court's April 4, 1988 Order Re Motion to Compel. In thatorder, the court found that plaintiff's initial answers toInterrogatories 62 and 64 were unresponsive. Plaintiff'ssupplemental responses to these interrogatories are now "unknown"and "unknown at this time," respectively.

Although such answers are not very illuminating, it ispermissible for an interrogated party to respond under oath as tohis lack of knowledge. 10 Fed.Proc.L.ed., § 26:317 at 557.Plaintiff is now bound by his responses claiming no knowledge andany later attempt to assert claims or introduce evidence on thesubject of the interrogatories at issue may be grounds forsanctions. Sanctions would be appropriate if it can be shown thatsuch information was within plaintiff's knowledge when hesupplemented his responses or that plaintiff was under a duty tosupplement his responses under Fed.R.Civ.P. 26(e).

UTC also claims that plaintiff's April 20, 1988 supplementalresponse to discovery raises claims of inadequate testing andinspection and negligent repair for the first time. SeeSupplemental Responses to Interrogatories 56, 57 and 58. UTCargues that these claims are inconsistent with (1) plaintiff'sNovember 23, 1987 disclosure of expert opinion which focused ondesign defect and failure to warn claims; and (2) plaintiff'sDecember 3, 1987 response to motion to compel in which plaintiffstated his claims were not based upon testing, quality control,inspection, assembly, installation, or repair of the product.

Although these assertions may appear inconsistent, defendantpoints to no violation of any court order in connectiontherewith. The sanctions set out in Fed.R.Civ.P. 37(b) only comeinto operation upon the failure of a party to obey a court ordercompelling discovery. Thus, sanctions are not appropriate underthese circumstances. However, this ruling in no way prejudicesUTC from taking any steps as to these claims for purposes ofdiscovery, clarification or protection.

Lastly, UTC argues that plaintiff's disclosure of a damagesexpert was in violation of the court's April 26, 1988 ordergranting plaintiff an extension of time to name additionalexperts. Defendant claims that plaintiff's request only spoke interms of naming an expert to address issues raised in thedeposition of his liability expert. The court's April 26, 1988order is drafted in broad terms and in no way limits the type ofexpert plaintiff could name. Further, UTC has not shown that hisdamages expert was not retained to address issues raised in theprior deposition of the liability expert. In any event, UTC hasnot demonstrated that it was prejudiced in any way by the namingof this damages expert.

For the foregoing reasons, UTC's motion for sanctions is deniedon all grounds.

Conclusion

1. Defendant/Third-Party Plaintiff's motion for summaryjudgment is granted as to plaintiff's failure to warn claims anddenied on all other grounds.

2. Third-Party Defendant's Joint Motion for Summary Judgment isgranted and all third-party claims are dismissed.

3. Defendant/Third-Party Plaintiff's Motion for Sanctions isdenied on all grounds.

4. Plaintiff's Motion to Strike Defendant/Third-PartyPlaintiff's Second and Third Affirmative Defenses is denied andis moot as to the seventh affirmative defense.

SO ORDERED.

1. But see McKay, 704 F.2d at 453 (separated design defect claimsfrom duty to warn claims and only applied government contractdefense to former without explanation); Johnston v. UnitedStates, 568 F. Supp. 351, 359 (D.Kan. 1983) (same).

2. By motion to strike dated June 30, 1986, plaintiff moved tostrike defendant's second and third affirmative defensesasserting the government contractor defense. Plaintiff challengedthe defense as legally insufficient under Connecticut law.

The Supreme Court has recognized that the government contractordefense applies to state law claims as a matter of federal commonlaw. Boyle, 108 S.Ct. at 2513-14; see, e.g., Clearfield Trust Co.v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573, 574-75, 87L.Ed. 838 (1942). Further, a motion to strike should not be usedto test the merits of a defense when factual and legal issuesremain to be decided. In re All Maine Asbestos Litigation,575 F. Supp. 1375, 1377 (D.Me. 1983). Thus, plaintiff's motion tostrike the second and third affirmative defenses is denied.

3. By motion to strike dated June 30, 1986, plaintiff moved tostrike defendant's seventh affirmative defense alleging a rightto set off under § 52-572r. In light of the foregoing rulingdenying defendant's motion for summary judgment and concludingthat § 52-572r(b) is inapplicable to this case, plaintiff'smotion to strike that defense is moot.

4. Defendants argue that Lockheed, 460 U.S. at 197-98, 103 S.Ct.at 1038-39, holds that nothing in either FTCA or FECA directlybars indemnity actions. While Lockheed is not a bar to suchactions, neither is it an express waiver of immunity and right tosue on indemnity claims with respect to the United States. Toestablish a right to indemnification, FTCA mandates theapplication of Connecticut's substantive law as it applies toprivate employers in like circumstances. Thus the court looks tothe exclusivity provision of the Connecticut statute, rather thanthat of FECA. See General Electric, 813 F.2d at 1276 & n. 3.

RULING ON PENDING MOTIONS

Facts and Procedural History

On January 6, 1985, plaintiff and the four individualthird-party defendants were repairing the landing gear of aCH-54B helicopter. The landing gear was manufactured bydefendant/third-party plaintiff United Technologies Corporation("UTC"). Plaintiff and third-party defendants were federal civilservice technicians employed at the Army Aviation SupportFacility in Windsor Locks, Connecticut. The noselanding gear allegedly exploded causing injury to plaintiff. Suitwas commenced in Superior Court on August 5, 1985, allegingliability under Conn.Gen.Stat. § 52-572m, claiming negligence,breach of warranty, strict liability, and failure to warn. UTCimpleaded the third-party defendants alleging that, if it wasliable, third-party defendants, as the active tort-feasors wereobliged to indemnify it. Third-party defendants removed theaction to this court on October 8, 1986. On November 24, 1986,UTC added a fifth third-party defendant — the United States.

I. Defendant/Third-Party Plaintiff's Motion for Summary Judgment

UTC now moves that summary judgment be entered in its favor asto each count for the following reasons:

1. The claims are barred by the applicable statute oflimitations (ninth affirmative defense).

2. There are no facts in dispute as to the lack of any designdefect in the forward landing gear strut.

3. Plaintiff's injury was not proximately caused by any defectin the strut.

4. The doctrines of product misuse and knowing use of a productin a dangerous condition bar plaintiff's claims (first, fifth andsixth affirmative defenses).

5. The government contractor defense bars plaintiff's recoveryas to any failure to warn (second and third affirmativedefenses).

UTC also seeks partial summary judgment on its eighthaffirmative defense claiming a right to set-off any compensationpaid by the federal government pursuant to § 52-572r in the eventthe joint motion for summary judgment of the third-partydefendants is granted as to the United States.

A. Statute of Limitations

Plaintiff has invoked Connecticut's Product Liability Act,Conn.Gen.Stat. § 52-572m, et seq. The statute of limitationsapplicable to such claims, § 52-577a, provides:

(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 . . . later than ten years from the date that the party last parted with possession or control of the product.

(c) The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under Chapter 568, provided the claimant can prove that the harm occurred during the useful safe life of the product.

UTC argues that, since the strut in question was designed andsold by it more than ten years prior to August 5, 1985,plaintiff's claims are barred under § 52-577a(a). Plaintiffcounters arguing that UTC last had possession or control of theproduct between May and October 1982 for extensive repairs afterthe helicopter suffered tornado damage. Thus, they claim thatthey had "possession or control" of the product well within theten year limitation period.

Evidence of a single service call and a courtesy safety checkwas held insufficient to establish a genuine issue of materialfact as to "possession or control" under § 52-577a(a). Daily v.New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986).

Here, plaintiff has adduced sufficient facts to defeat summaryjudgment. Plaintiff's supporting documentation outlines theextent and degree of defendant's possession and repair of thehelicopter. Contracts required UTC to inspect and repair thehelicopter, including the landing gear mechanisms. SeePlaintiff's Material Facts Not in Dispute at ¶ 1; Exhibit B.Further, UTC sought permission to return the helicopter beforecompletion of all the repairs. Id. These facts are undisputed andcreateat least an issue of fact as to the extent of UTC's possessionand control of the helicopter.

Plaintiff also argues that whether or not his injury occurredwithin its useful safe life is a question of fact for the trierof fact. Conn.Gen.Stat. § 52-577a(c). Plaintiff has alleged thathe was not and is not entitled to compensation under theConnecticut Workers' Compensation Act; Chapter 568,Conn.Gen.Stat. § 31-275, et seq. See Plaintiff's Material FactsNot in Dispute at ¶ 2; Plaintiff's Affidavit, Exhibit A. Thus,the products liability action would not be time-barred if theproduct was within its useful safe life at the time of theinjury. As this also presents a material question of fact,summary judgment is inappropriate. See Habenicht v. Sturm, Ruger& Co., 660 F. Supp. 52, 56 (D.Conn. 1986); Kelley v. The GoodyearTire & Rubber Co., 700 F. Supp. 91 (D.Conn. 1987), Ruling onMotion for Summary Judgment at 8. Accordingly, UTC's motion forsummary judgment is denied based on the statute of limitations.

B. Design Defect

UTC claims that plaintiff has produced no admissible experttestimony to suggest a design defect in the forward landing gearstrut and thus there is no material question of fact as to theclaim of a defect in the strut. Summary judgment is inappropriateif plaintiff has adduced evidence which substantiates thenecessary elements of his claim. Celotex Corp. v. Catrett,477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining the existence of a genuine issue, allambiguities must be resolved and all reasonable inferences drawnin favor of the non-moving party. Donahue v. Windsor Locks Bd. ofFire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Material questionsof fact exist as to the defective design of the forward landinggear strut. Plaintiff's expert, Robert Norton, in his depositionof March 30, 1988, testified that the landing gear strut wasdefective because it failed to prevent or minimize clogging ofthe schraeder valve, resulting in captured pressure in thechamber which led to the explosion causing plaintiff's injury.See Deposition of Norton at 39-40, 89. Mr. Norton's opinion wasbased on the accident reports, the maintenance manual, andtechnical drawings. Id. at 41-42. From this it could be foundthat the strut design was defective. Trial will be necessary toresolve that issue.

UTC argues that Mr. Norton's opinion should not be consideredbecause in his deposition he disclaimed the defect for which hewas disclosed as a supportive expert. Plaintiff disclosed thatMr. Norton's opinion was "[t]hat the location and design of theair filler/vent valve . . . is such as to be subject to cloggingand it need not have been so, if properly designed." Plaintiff'sSupplemental Discovery Response at 1. The isolated excerptsprovided by UTC do not require a finding that Mr. Nortondisclaimed the vent valve defect about which he was to testify.Mr. Norton did testify that the schraeder valve was defectivelydesigned in that it was subject to clogging. This opinion isconsistent with plaintiff's disclosure of expert testimony.Although portions of Mr. Norton's depositions may discredit hisopinion, his credibility is to be decided by the trier of factand not on a motion for summary judgment. Since issues of factexist on plaintiff's design defect claims, UTC's motion forsummary judgment is denied.

C. Proximate Cause

UTC first claims that there is no evidence that any defect inthe design of the vent valve actually contributed to plaintiff'sinjuries. Second, it argues that the condition of the valve wasknown to plaintiff and his co-workers, whose intervening conductactually caused the injury.

Plaintiff has offered evidence suggesting that a defect in thevent valve led to the explosion which caused his injuries. Indetermining whether a genuine issue has been raised, a court mustdraw all reasonable inferences against the moving party. Donahue,834 F.2d at 57. Plaintiff's expert, Robert Norton, has testifiedthat his opinion was that the vent valve was defectively designedin that it was subject to clogging. He went on to state that "thevalve was clogged by some debris during the bleeding process,thus leaving captured air pressure in the chamber which led tothe explosion of the one that was drilled out." Deposition ofNorton at 89. Plaintiff, in his affidavit, states that he waspositioned in the path of the explosion and suffered extensiveinjuries as a result. Affidavit of Nicholson at ¶ 8. Assumingthese allegations by plaintiff are factually correct for purposesof this motion, plaintiff's showing defeats UTC's claim that noevidence exists to show plaintiff's injury was proximately causedby any defect in the strut. A jury could find, based on Norton'stestimony, that because the clogging occurred in the course ofbleeding, the design was susceptible to causing the clogging andthus defective.

UTC also argues that plaintiff and his co-workers knew of thecondition of the valve and their intervening conduct actuallycaused plaintiff's injury. It claims that the decision ofplaintiff and his co-workers to drill the pins out of the strut,in the course of which the explosion occurred, cannot be said tohave been reasonably anticipated as a course of action to be usedto rectify the clogged condition. Further, it alleges that theCH-54B manual does not specify a procedure for drilling the pinsout of the restricting cap of the nose landing gear strut andthat such action was unreasonable. Affidavit of Rosario Rossi at¶¶ 4, 5.

Plaintiff's affidavit asserts that neither he nor hisco-workers had any idea the strut was still pressurized when theyattempted to disassemble it. Affidavit of Nicholson at ¶¶ 6, 7.He claims that the vent valve was loosened, he heard pressureescape, and the strut collapsed. Id. This evidence contradictsUTC's allegations that plaintiff and his co-workers were awarethat dangerous residual pressure remained in the strut.

Further, plaintiff's expert testified that the decision todrill out the pins in the strut was not unreasonable under thecircumstances. Deposition of Norton at 2-28 to 2-29. He assumedthat the service personnel were not aware of residual pressure inthe strut, they were having difficulty in removing the pins todisassemble the strut and the maintenance manual contained nowarnings of the danger in drilling out the pins. Id. Thatevidence counters UTC's allegations and demonstrates an issue offact as to the likelihood and reasonableness of the actions ofplaintiff and his co-workers and whether those actions were anintervening superceding cause of plaintiff's injuries. For theforegoing reasons, summary judgment is inappropriate and UTC'smotion is denied.

D. Product Misuse

On the same facts, UTC also claims that drilling out the pinsconstitutes product misuse and bars plaintiff's recovery.

Product misuse and knowing use of a product in a dangerouscondition may bar products liability claims. Conn.Gen.Stat. §52-572l. Product misuse has been defined as the use of a productin a manner not reasonably foreseeable to the defendant,knowingly using a product in a defective condition and includingactual knowledge of a dangerous condition. Norrie v. Heil Co.,203 Conn. 594, 600-02, 525 A.2d 1332 (1987); see also Kelly v.Deere & Co., 627 F. Supp. 564, 565 (D.Conn. 1986).

As discussed above, there is evidence which supports thereasonableness of the decision to drill the pins out of the strutand which supports a finding that he and his co-workers had noknowledge that dangerous pressurization remained in the strut.Thus, issues of fact exist as to product misuse and plaintiff'sknowledge of any defective condition and, therefore, summaryjudgment is denied on this defense.

E. Government Contractor Defense

UTC claims the government contractor defense in UTC's secondand third affirmative defenses bars plaintiff's claims. Plaintiffalleges that UTC was under a duty to provide instructions andwarnings concerning dangers in repairing or disassemblingthe nose landing gear strut, which they assert was defectivelydesigned. See Complaint, First Count, ¶ 8(i-k); Plaintiff'sMaterial Facts Not in Dispute, ¶ 5; Exhibit D.

In Boyle v. UTC, ___ U.S. ___, 108 S.Ct. 2510, 101 L.Ed.2d 442(1988), the Court held that "liability for design defects inmilitary equipment cannot be imposed, pursuant to state law, when(1) the United States approved reasonably precise specifications;(2) the equipment conformed to those specifications; and (3) thesupplier warned the United States about the dangers in the use ofthe equipment that were known to the supplier but not the UnitedStates." Id. 108 S.Ct. at 2518. The Court found that astate-imposed duty of care as an asserted basis for acontractor's liability was in direct conflict with the dutyimposed by the government contract and thus state tort law mustbe displaced. Id.

The Supreme Court in Boyle did not consider whether a failureto warn claim may be barred by the government contract defense.Product liability suits generally involve claims based on eithera theory of defective manufacturing, defective design, or failureto warn. Ramey v. Martin-Baker Aircraft Co., 656 F. Supp. 984, 999(D.Md. 1987). The government contractor defense does not shieldgovernment contractors from liability for manufacturing defects,i.e., the manufacturer did not comply with the government'sdesign specifications. McKay v. Rockwell Int'l Corp.,704 F.2d 444, 448 n. 6 (9th Cir. 1983); Foster v. Day & Zimmerman, Inc.,502 F.2d 867 (8th Cir. 1974). Further, the Supreme Court hasspecifically stated that the government contractors defenseinsulates government contractors from liability in design defectcases. Boyle, 108 S.Ct. at 2518.

Neither party has extensively addressed the issue of whetherthe defense will bar a duty to warn claim beyond the conclusoryassertions that it does or does not apply. It seems that theanswer depends on how the failure to warn claim is asserted andthe analysis used. Ramey, 656 F. Supp. at 999. In some cases, dutyto warn claims merely repeat design defects. See Koutsoubos v.Boeing Vertol, 553 F. Supp. 340, 344 (E.D.Pa. 1982), aff'd,755 F.2d 352 (3d Cir. 1985) (plaintiff's claim that defendant failedto warn of dangers associated with the improperly designedaircraft found to be repetitive of assertions concerning designdefects). Duty to warn claims can also be viewed as a type ofdesign defect under the theory that warnings in general aresafety components of the product.1 Ramey, 656 F. Supp. at 999.

Plaintiff asserts a failure to provide adequate warnings andinstructions concerning repair and disassembly of the forwardlanding gear strut in the CH-54B maintenance manual and not anyindependent duty to warn. See Deposition of Norton at 2-25 to2-28; 2-51; Plaintiff's Material Facts Not in Dispute at ¶ 5;Exhibit D. UTC seeks immunity under the government contractordefense because it claims the government controlled the contentsof the CH-54B manual. See UTC's Memorandum in Support at 18.

In order to decide whether the government contractor defenseapplies to the duty to warn claims at issue, it is necessary todiscuss the policy behind the defense as set out in Boyle anddetermine if it applies equally as well in this setting. Thegovernment contractor defense grew out of the historic principleof sovereign immunity. When a contractor acts under the authorityand control of the United States, it shares in the immunityenjoyed by the government. Yearsley v. W.A. Ross Constr. Co.,309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940). The defense promotesthe federal interest in military procurement and protects thegovernment officers in making military judgments about the designof equipment. Boyle, 108 S.Ct. at 2517-18.

When the government provides or approves specifications of aproduct which calls for some safeguards but not others, thegovernment contractor is not under a duty to provide every knownsafety devicewhere it is not called for by the government contract. See Id.108 S.Ct. at 2518; Ramey, 656 F. Supp. at 999. The choice is thatof the government. The contractor is obliged to the government'sdecision. The same is undoubtedly true if the government provides"reasonably precise" specifications for the contents of amaintenance manual. A contractor should not be held liable fordeficiencies in the contents of a maintenance manual if thecontents are dictated by the government.

Liability for failure to warn as asserted in this case wouldhave the same negative effects on military procurement as wasoutlined in Boyle, 108 S.Ct. at 2515. Further, the government'sdecision on the contents of a maintenance manual involves thesame balancing of technical, military and even socialconsiderations protected in Boyle. Id. 108 S.Ct. at 2517.

Because the policy justifications underlying the governmentcontractor defense apply equally well regardless of whether theaction is based on an allegedly dangerous design defect or afailure to provide adequate warnings and instructions, thegovernment contractor defense can function as an affirmativedefense against both claims.2 See Bynum v. FMC Corp.,770 F.2d 556, 574 & n. 24 (5th Cir. 1985); Ramey, 656 F. Supp. at 1000. Thefirst two elements of the government contractor defense requireUTC to show that it acted pursuant to and in conformity with"reasonably precise" specifications established or approved bythe government concerning the contents of the CH-54B maintenancemanual. Under Fed.R.Civ.P. 56(c), the party seeking summaryjudgment "always bears the initial responsibility of informingthe district court of the basis for its motion and identifyingthose portions of [the record] which it believes demonstrate theabsence of a genuine issue of material fact." Celotex Corp., 477U.S. at 323, 106 S.Ct. at 2553.

In support of its motion, UTC has provided a summary of thegovernment's involvement in compiling and amending the CH-54Bmanual. See Defendant's Memorandum in Support at 18 andsupporting documentation. This evidence establishes the followingundisputed material facts.

UTC undertook no action with respect to the CH-54B manualsother than that under contract with the government and inconformity with government specifications. Affidavit of HowardCarpenter at ¶¶ 5, 6. The government maintained control over thecontents of the manual and made revisions to the contents withoutthe consultation or knowledge of UTC. Id. at ¶¶ 7, 8. Further, inconnection with revisions made pursuant to government contract,government personnel, including users of the manual, contributedthe majority of expertise into the proposed changes to themanual. Id. at ¶¶ 9, 10.

In addition to showing the government provided it withspecifications, UTC must show that such specifications were"reasonably precise." Boyle, 108 S.Ct. at 2518. UTC has appendedthe contract and specifications under which it acted in revisingthe CH-54B Manual. See Defendant's Statement of Material FactsNot in Dispute at ¶¶ 15, 16 and supporting documentation. Thespecifications outline the requested changes to the manual andthen identify each specific page requiring change. Id. Thespecifications also refer to government furnished data which isused in developing the manuals. Lastly, such revisions weresubject to government review and approval. UTC has thusadequately demonstrated that the government provided reasonablydetailed specifications for the contents of the maintenancemanual.

The last requirement of the government contractor defense isthat the supplier have warned the United States about the dangersin the use of the equipment that were known to the supplier butnot the United States. Boyle, 108 S.Ct. at 2518. UTC has comeforward with evidence that it was aware of no hazard posed by thelanding gear strut when the maintenance manual was drafted, nordid it subsequently become aware of any scientific knowledgesupporting the existence of a hazard. See Defendant's MaterialFacts in Dispute at ¶ 19; Affidavit of Peruzzi at ¶ 4. On theother hand, plaintiff has come forward with no evidence that UTCknew or should have known about a defect and thus should havewarned the government. See, e.g., Boyle v. U.T.C., 792 F.2d 413,415 (4th Cir. 1986); Bynum, 770 F.2d at 577. Accordingly,plaintiff has not discharged his summary judgment burden and UTCis entitled to judgment as a matter of law as to plaintiff'sfailure to warn claims under the government contractor defense.

F. Applicability of Conn.Gen.Stat. § 52-572r

UTC argues that it is entitled to set off any compensationreceived by plaintiff under the Federal Employee's CompensationAct ("FECA"), 5 U.S.C. § 8101-8151, against any judgmentrendered against it. It argues that, if the United States istreated as a private employer under Connecticut law for purposesof the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, etseq., and thus accorded immunity from UTC's third-party action,see Section IIA infra, then the court should apply the entireConnecticut Workers' Compensation Act to the case.

Section 52-572r(b) provides that any verdict or settlementagainst a third-party, here UTC, shall be reduced by any amountspaid to plaintiff as compensation under the provisions of Chapter568, Connecticut Workers' Compensation Act. It is undisputed thatplaintiff has received compensation only under FECA, rather thanunder the Connecticut Act and consequently the set off is notdirectly applicable to this case.

UTC argues that it is inconsistent and inequitable to look toConnecticut law in determining immunity under FTCA and not toapply that same law to the issue of a set off. UTC brought itsaction for indemnification against the United States pursuant toFTCA, 28 U.S.C. § 1346(b), 2674. FTCA mandates the application,by way of analogy, of state substantive law only to determinewhether a right of action would exist under "like circumstances."General Elec. Co. v. United States, 813 F.2d 1273, 1275 & n. 1(4th Cir. 1987). Once that determination is made and the UnitedStates is held immune from suit, state substantive law isirrelevant to the relationship between the United States and itsemployee under FECA. Further, the fact that the United States canrecover payments made to the injured employee under FECA,5 U.S.C. § 8132, should the employer recover from a third-party,does not prevent the United States from establishing immunityunder FTCA. See, e.g., Insurance Co. of North America v. UnitedStates, 643 F. Supp. 465, 468-69 (M.D.Ga. 1986). Further, to allowthe offset would conflict with the reimbursement for FECApayments to which the United States is entitled. 5 U.S.C. § 8131,8132.

For the foregoing reasons, UTC's motion for summary judgment onthis issue is denied.3

II. Third-Party Defendants' Joint Motion for Summary Judgment

A. Indemnification Against the United States

UTC's claim against the United States for indemnification hasbeen brought pursuant to the FTCA, 28 U.S.C. § 1346(b),2671-2680. FTCA is a limited waiver of sovereignimmunity which grants the district courts exclusive jurisdictionover suits for money damages against the United States for"personal injury . . . caused by the negligent act or omission ofany employee of the government while acting within the scope ofhis . . . employment, under circumstances where the UnitedStates, if a private person, would be liable to the claimant inaccordance with the law of the place where the act or omissionoccurred." 28 U.S.C. § 1346(b). It is undisputed that theaccident which is the basis of plaintiff's claim occurred inConnecticut and, therefore, Connecticut law controls theliability of the United States for indemnity. Further FTCA"permits an indemnification action against the United states `inthe same manner and to the same extent' that the action would lieagainst `a private individual under like circumstances.'"Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 198, 103S.Ct. 1033, 1038, 74 L.Ed.2d 911 (1982); 28 U.S.C. § 2674.4

Under Connecticut law an employer who complies with theConnecticut Workers' Compensation Act, § 31-275, et seq., isimmune from any damages actions brought by injured employees.Conn.Gen.Stat. § 31-284. This exclusivity provision extends tobar third party claims for indemnity as well.

The United States, as an employer, is not covered by theConnecticut Workers' Compensation Act. Rather, plaintiff in thiscase received benefits under FECA, 5 U.S.C. § 8101-8151. SeeThird-Party Defendant's Material Facts Not in Dispute at ¶ 4.Thus, the issue becomes whether a private employer, "under likecircumstances," could be held liable for indemnification underConnecticut law. The term "under like circumstances" as found in28 U.S.C. § 2674 has been construed to support an analogy betweenthe United States' compliance with FECA and a private employer'scompliance with state compensation law. See General Elec., 813F.2d at 1275 & n. 1; In re All Maine Asbestos Litigation,772 F.2d 1023, 1028 (1st Cir. 1985).

This court finds that a private employer "under likecircumstances" would be immune from liability arising from anemployee's injuries where it secured compensation for itsemployee under the Connecticut Workers' Compensation Act.Similarly, the United States, by virtue of its compliance withFECA, is entitled to claim the same immunity. See General Elec.,813 F.2d at 1276. "To hold otherwise would be to place the UnitedStates in a position less favorable than that of any privateemployer under the [Connecticut] statute." Id. See also, Roelofsv. United States, 501 F.2d 87, 92-93 (5th Cir. 1974) (stateworkers' compensation system, including defenses available tocovered employers, is the law applied to the United States underFTCA even though the government was not in actuality coveredunder the state compensation law). Accordingly, UTC's third-partyclaims are barred pursuant to 28 U.S.C. § 2674 and summaryjudgment is granted as to the United States.

B. Indemnification Against the Individual Third-Party Defendants

Defendant/third-party plaintiff, UTC, impleaded the individualthird-party defendants (Chet Goralski, Giovanni Lenoci, DonaldNordell and Wilhelm Yungk), claiming indemnity under theactive/passive liability formulation applicable under Connecticutlaw. See Objection of Defendant/Third-Party Plaintiff to JointMotion for Summary Judgment at 2. UTC's sole theory is that anybreach of duty on its part was passive or remote and the conductof the individual third-party defendants on the day of theincident constituted the activenegligence which caused plaintiff's injuries. Thus, UTC seeksreimbursement or indemnification from the third-party defendantsfor any liability to plaintiff.

In general, passive negligence is limited to constructive ortechnical fault, i.e., where an employer is held vicariouslyliable for the acts of an employee. See Gomeau v. Forrest,176 Conn. 523, 528, 409 A.2d 1006 (1979); In re General DynamicsAsbestos Cases, 602 F. Supp. 497, 500-01 (D.Conn. 1984). In thiscase, plaintiff's product liability claims allege defectivedesign and failure to warn. Assuming arguendo that the conduct ofthe individual third-party defendants constitutes activenegligence on their part, this does not establish that UTC wasonly passively negligent. At best, such allegations, if proven,would make them joint tortfeasors.

Plaintiff's complaint bases UTC's potential liability on itsactions in designing the product at issue and on deficiencies inthe maintenance manual. Its tort feasance is thus parallel tothat alleged against the individual third-party defendants. Anyliability of the individual third-party plaintiff's arises fromtheir repair of the landing gear strut. It cannot be said thatUTC's potential liability flows vicariously from acts of thethird-party defendants, but rather, stems from its own acts oromissions. See General Dynamics, 602 F. Supp. at 501; Esckelson v.R.L. Best, Civil No. H-84-1003 (D.Conn. Oct. 29, 1986), Ruling onMotion to Strike at 3-4; see also Weintraub v. Dahn,188 Conn. 570, 573, 452 A.2d 117 (1982). Accordingly, UTC's potentialliability cannot be characterized as passive and is nottransferable through indemnity. See Mable v. Bass TransportationCo., 40 Conn. Sup. 253, 257-58, 490 A.2d 548 (Conn. Sup. 1983),aff'd, 3 Conn. App. 547, 490 A.2d 538 (1985) (existence of anactive/passive relationship needed to state cause of action inindemnity).

Further, the Connecticut Supreme Court in Kyrtatas v. Stop &Shop, Inc., 205 Conn. 694, 535 A.2d 357 (1988), held that theConnecticut Products Liability Act, Conn.Gen.Stat. § 52-572m, etseq., abrogated common law indemnification in products liabilitycases. The court ruled that an action based on active/passiveindemnification did not apply in a statutory product liabilityaction in which all potential defendants are parties to the suit,whether sued by plaintiff or impleaded by defendant. Id. at702-03 & n. 2, 535 A.2d 357.

The court concluded that indemnification was inconsistent withthe provisions of the product liability act establishingcomparative responsibility and contribution. Conn.Gen.Stat. §52-572o. Indemnification involves a claim for reimbursement infull from one primarily liable, while contribution involvesreimbursement of a share of a payment made by claimant that wasattributable to a joint-tortfeasor. Kaplan v. Merberg WreckingCorp., 152 Conn. 405, 412, 207 A.2d 732 (1965). Permitting anaction for contribution eliminated the need for indemnificationin product liability suits. Kyrtatas, 205 Conn. at 701,535 A.2d 357.

Accordingly, UTC's claim for indemnification against theindividual third-party defendants on the active/passiveresponsibility theory must fail and the third-party defendants'motion for summary judgment on this claim is granted.

III. Motions for Sanctions

UTC moves for the entry of sanctions against plaintiff in theform of attorney fees, monetary fines, and preclusion of evidenceat trial, based upon plaintiff's improper discovery responses andother pleadings, which are claimed to be inconsistent and inviolation of this court's orders. Rule 37(b), Fed.R.Civ.P.,allows a court, in its discretion, to impose appropriatesanctions when a party fails to obey an order compellingdiscovery.

Initially, UTC claims plaintiff failed to comply with aspectsof this court's April 4, 1988 Order Re Motion to Compel. In thatorder, the court found that plaintiff's initial answers toInterrogatories 62 and 64 were unresponsive. Plaintiff'ssupplemental responses to these interrogatories are now "unknown"and "unknown at this time," respectively.

Although such answers are not very illuminating, it ispermissible for an interrogated party to respond under oath as tohis lack of knowledge. 10 Fed.Proc.L.ed., § 26:317 at 557.Plaintiff is now bound by his responses claiming no knowledge andany later attempt to assert claims or introduce evidence on thesubject of the interrogatories at issue may be grounds forsanctions. Sanctions would be appropriate if it can be shown thatsuch information was within plaintiff's knowledge when hesupplemented his responses or that plaintiff was under a duty tosupplement his responses under Fed.R.Civ.P. 26(e).

UTC also claims that plaintiff's April 20, 1988 supplementalresponse to discovery raises claims of inadequate testing andinspection and negligent repair for the first time. SeeSupplemental Responses to Interrogatories 56, 57 and 58. UTCargues that these claims are inconsistent with (1) plaintiff'sNovember 23, 1987 disclosure of expert opinion which focused ondesign defect and failure to warn claims; and (2) plaintiff'sDecember 3, 1987 response to motion to compel in which plaintiffstated his claims were not based upon testing, quality control,inspection, assembly, installation, or repair of the product.

Although these assertions may appear inconsistent, defendantpoints to no violation of any court order in connectiontherewith. The sanctions set out in Fed.R.Civ.P. 37(b) only comeinto operation upon the failure of a party to obey a court ordercompelling discovery. Thus, sanctions are not appropriate underthese circumstances. However, this ruling in no way prejudicesUTC from taking any steps as to these claims for purposes ofdiscovery, clarification or protection.

Lastly, UTC argues that plaintiff's disclosure of a damagesexpert was in violation of the court's April 26, 1988 ordergranting plaintiff an extension of time to name additionalexperts. Defendant claims that plaintiff's request only spoke interms of naming an expert to address issues raised in thedeposition of his liability expert. The court's April 26, 1988order is drafted in broad terms and in no way limits the type ofexpert plaintiff could name. Further, UTC has not shown that hisdamages expert was not retained to address issues raised in theprior deposition of the liability expert. In any event, UTC hasnot demonstrated that it was prejudiced in any way by the namingof this damages expert.

For the foregoing reasons, UTC's motion for sanctions is deniedon all grounds.

Conclusion

1. Defendant/Third-Party Plaintiff's motion for summaryjudgment is granted as to plaintiff's failure to warn claims anddenied on all other grounds.

2. Third-Party Defendant's Joint Motion for Summary Judgment isgranted and all third-party claims are dismissed.

3. Defendant/Third-Party Plaintiff's Motion for Sanctions isdenied on all grounds.

4. Plaintiff's Motion to Strike Defendant/Third-PartyPlaintiff's Second and Third Affirmative Defenses is denied andis moot as to the seventh affirmative defense.

SO ORDERED.

1. But see McKay, 704 F.2d at 453 (separated design defect claimsfrom duty to warn claims and only applied government contractdefense to former without explanation); Johnston v. UnitedStates, 568 F. Supp. 351, 359 (D.Kan. 1983) (same).

2. By motion to strike dated June 30, 1986, plaintiff moved tostrike defendant's second and third affirmative defensesasserting the government contractor defense. Plaintiff challengedthe defense as legally insufficient under Connecticut law.

The Supreme Court has recognized that the government contractordefense applies to state law claims as a matter of federal commonlaw. Boyle, 108 S.Ct. at 2513-14; see, e.g., Clearfield Trust Co.v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573, 574-75, 87L.Ed. 838 (1942). Further, a motion to strike should not be usedto test the merits of a defense when factual and legal issuesremain to be decided. In re All Maine Asbestos Litigation,575 F. Supp. 1375, 1377 (D.Me. 1983). Thus, plaintiff's motion tostrike the second and third affirmative defenses is denied.

3. By motion to strike dated June 30, 1986, plaintiff moved tostrike defendant's seventh affirmative defense alleging a rightto set off under § 52-572r. In light of the foregoing rulingdenying defendant's motion for summary judgment and concludingthat § 52-572r(b) is inapplicable to this case, plaintiff'smotion to strike that defense is moot.

4. Defendants argue that Lockheed, 460 U.S. at 197-98, 103 S.Ct.at 1038-39, holds that nothing in either FTCA or FECA directlybars indemnity actions. While Lockheed is not a bar to suchactions, neither is it an express waiver of immunity and right tosue on indemnity claims with respect to the United States. Toestablish a right to indemnification, FTCA mandates theapplication of Connecticut's substantive law as it applies toprivate employers in like circumstances. Thus the court looks tothe exclusivity provision of the Connecticut statute, rather thanthat of FECA. See General Electric, 813 F.2d at 1276 & n. 3.

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