Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1437 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 3590 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1437
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Josh S. Cutler
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to protecting innocent sellers.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Josh S. Cutler6th Plymouth1/20/2023 1 of 9
16	16	HOUSE DOCKET, NO. 3590 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1437
18	18	By Representative Cutler of Pembroke, a petition (accompanied by bill, House, No. 1437) of
19	19	Josh S. Cutler relative to nonmanufacturing seller liability. The Judiciary.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act relative to protecting innocent sellers.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 SECTION 1. Title XV is hereby amended by adding the following new chapter:-
29	29	2 “CHAPTER 93M. NONMANUFACTURING SELLER LIABILITY
30	30	3 Section 1. Definitions.
31	31	4 (a) "Claimant" means a party seeking relief, including a plaintiff, counterclaimant, or
32	32	5cross-claimant.
33	33	6 (b) "Products liability action" means any action against a manufacturer or seller for
34	34	7recovery of damages arising out of personal injury, death, or property damage allegedly caused
35	35	8by a defective product whether the action is based in strict tort liability, strict products liability,
36	36	9negligence, misrepresentation, breach of express or implied warranty, or any other theory or
37	37	10combination of theories. 2 of 9
38	38	11 (c) "Seller" means a person who is engaged in the business of distributing or otherwise
39	39	12placing, for any commercial purpose, in the stream of commerce for use or consumption a
40	40	13product or any component part thereof.
41	41	14 (d) "Manufacturer" means a person who is a designer, formulator, constructor, rebuilder,
42	42	15fabricator, producer, compounder, processor, or assembler of any product or any component part
43	43	16thereof and who places the product or any component part thereof in the stream of commerce.
44	44	17 Section 2. Manufacturer's duty to indemnify.
45	45	18 (a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a
46	46	19products liability action, except for any loss caused by the seller's intentional misconduct or other
47	47	20act or omission, such as negligently modifying or altering the product, for which the seller is
48	48	21independently liable.
49	49	22 (b) For purposes of this section, "loss" includes court costs and other reasonable
50	50	23expenses, reasonable attorney fees, and any reasonable damages.
51	51	24 (c) Damages awarded by the trier of fact shall, on final judgment, be deemed reasonable
52	52	25for purposes of this section.
53	53	26 (d) For purposes of this section, a wholesale distributor or retail seller who completely or
54	54	27partially assembles a product in accordance with the manufacturer's instructions shall be
55	55	28considered a seller.
56	56	29 (e) The duty to indemnify under this section:
57	57	30 (1) applies without regard to the manner in which the action is concluded; 3 of 9
58	58	31 (2) shall supersede a preexisting contractual agreement absolving a manufacturer of the
59	59	32duty to indemnify; and
60	60	33 (3) is in addition to any duty to indemnify established by law, contract, or otherwise.
61	61	34 (f) A seller eligible for indemnification under this section shall give reasonable notice to
62	62	35the manufacturer of a product claimed in a petition or complaint to be defective, unless the
63	63	36manufacturer has been served as a party or otherwise has notice of the action.
64	64	37 (g) A seller is entitled to recover from the manufacturer court costs and other reasonable
65	65	38expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce
66	66	39the seller's right to indemnification under this section.
67	67	40 Section 3. Liability of nonmanufacturing sellers.
68	68	41 (a) A seller that did not manufacture a product is not liable for harm caused to the
69	69	42claimant by that product unless the claimant proves:
70	70	43 (1) that the seller participated in the design of the product;
71	71	44 (2) that the seller altered or modified the product and the claimant's harm resulted from
72	72	45that alteration or modification;
73	73	46 (3) that the seller installed the product, or had the product installed, on another product
74	74	47and the claimant's harm resulted from the product's installation onto the assembled product;
75	75	48 (4) that:
76	76	49 (i) the seller exercised substantial control over the content of a warning or instruction that
77	77	50accompanied the product; 4 of 9
78	78	51 (ii) the warning or instruction was inadequate; and
79	79	52 (iii) the claimant's harm resulted from the inadequacy of the warning or instruction;
80	80	53 (5) that:
81	81	54 (i) the seller made an express factual representation about an aspect of the product;
82	82	55 (ii) the representation was incorrect;
83	83	56 (iii) the claimant relied on the representation in obtaining or using the product; and
84	84	57 (iv) if the aspect of the product had been as represented, the claimant would not have
85	85	58been harmed by the product or would not have suffered the same degree of harm; or
86	86	59 (6) that:
87	87	60 (i) the seller actually knew of a defect to the product at the time the seller supplied the
88	88	61product; and
89	89	62 (ii) the claimant's harm resulted from the defect.
90	90	63 (b) This section does not apply to a manufacturer or seller whose liability in a products
91	91	64liability action is governed by Chapter 93B. In the event of a conflict, Chapter 93B prevails over
92	92	65this section.
93	93	66 (c) If after service on a nonresident manufacturer through the secretary of state, the
94	94	67manufacturer fails to answer or otherwise make an appearance in the time required by law, it is
95	95	68conclusively presumed for the purposes of Subsection (a)(7)(B) that the manufacturer is not 5 of 9
96	96	69subject to the jurisdiction of the court unless the seller is able to secure personal jurisdiction over
97	97	70the manufacturer in the action.
98	98	71 Section 4. Design defects.
99	99	72 (a) In a products liability action against a seller in which a claimant alleges a design
100	100	73defect, the burden is on the claimant to prove by a preponderance of the evidence that:
101	101	74 (1) it is proper to bring action against a seller rather than the manufacturer because a
102	102	75judgment is not recoverable from the assets of the bankruptcy estate associated with said
103	103	76manufacturer;
104	104	77 (2) there was a safer alternative design; and
105	105	78 (3) the defect was a producing cause of the personal injury, property damage, or death for
106	106	79which the claimant seeks recovery.
107	107	80 (b) In this section, "safer alternative design" means a product design other than the one
108	108	81actually used that in reasonable probability:
109	109	82 (1) would have prevented or significantly reduced the risk of the claimant's personal
110	110	83injury, property damage, or death without substantially impairing the product's utility; and
111	111	84 (2) was economically and technologically feasible at the time the product left the control
112	112	85of the manufacturer or seller by the application of existing or reasonably achievable scientific
113	113	86knowledge.
114	114	87 (c) This section does not apply to a drug or device as those terms are defined in the
115	115	88federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321). 6 of 9
116	116	89 (d) This section is not declarative, by implication or otherwise, of the common law with
117	117	90respect to any product and shall not be construed to restrict the courts of this state in developing
118	118	91the common law with respect to any product which is not subject to this section.
119	119	92 Section 5. Compliance with government standards.
120	120	93 (a) In a products liability action brought against a product manufacturer or seller, there is
121	121	94a rebuttable presumption that the product manufacturer or seller is not liable for any injury to a
122	122	95claimant caused by some aspect of the formulation, labeling, or design of a product if the product
123	123	96manufacturer or seller establishes that the product's formula, labeling, or design complied with
124	124	97mandatory safety standards or regulations adopted and promulgated by the federal government,
125	125	98or an agency of the federal government, that were applicable to the product at the time of
126	126	99manufacture and that governed the product risk that allegedly caused harm.
127	127	100 (b) The claimant may rebut the presumption in Subsection (a) by establishing that:
128	128	101 (1) the mandatory federal safety standards or regulations applicable to the product were
129	129	102inadequate to protect the public from unreasonable risks of injury or damage; or
130	130	103 (2) the manufacturer, before or after marketing the product, withheld or misrepresented
131	131	104information or material relevant to the federal government's or agency's determination of
132	132	105adequacy of the safety standards or regulations at issue in the action.
133	133	106 (c) This section does not extend to manufacturing flaws or defects even though the
134	134	107product manufacturer has complied with all quality control and manufacturing practices
135	135	108mandated by the federal government or an agency of the federal government.
136	136	109 Section 6. Affidavit by seller identifying manufacturer 7 of 9
137	137	110 (a) In any product liability action against a product seller, the product seller may file an
138	138	111affidavit certifying the correct identity of the manufacturer of the product which allegedly caused
139	139	112the injury, death or damage.
140	140	113 (b) Upon filing the affidavit pursuant to subsection (a) of this section, the product seller
141	141	114shall be relieved of all strict liability claims, subject to the provisions set forth in subsection (a)
142	142	115of section 3 of this chapter. Due diligence shall be exercised in providing the plaintiff with the
143	143	116correct identity of the manufacturer or manufacturers.
144	144	117 (c) The product seller shall be subject to strict liability if:
145	145	118 (1) The identity of the manufacturer given to the plaintiff by the product seller was
146	146	119incorrect. Once the correct identity of the manufacturer has been provided, the product seller
147	147	120shall again be relieved of all strict liability claims, subject to subsection (d) of this section; or
148	148	121 (2) The manufacturer has no known agents, facility, or other presence within the United
149	149	122States; or
150	150	123 (3) A judgment is not recoverable from the assets of the bankruptcy estate.
151	151	124 (d) The commencement of a product liability action based in whole or in part on the
152	152	125doctrine of strict liability against a product seller shall toll the applicable statute of limitations
153	153	126with respect to manufacturers who have been identified pursuant to the provisions of subsection
154	154	127(a) of this section.
155	155	128 Section 7. Elements of defense; summary judgment; reinstatement of action 8 of 9
156	156	129 (a) It shall be a defense to an action against a seller of a product for property damage or
157	157	130personal injury allegedly caused by the defective design or manufacture of a product if the seller
158	158	131establishes that:
159	159	132 (1) The seller had no knowledge of the defect;
160	160	133 (2) The seller in the performance of the duties he performed or while the product was in
161	161	134his possession could not have discovered the defect while exercising reasonable care;
162	162	135 (3) The seller did not manufacture, produce, design, or designate the specifications for the
163	163	136product which conduct was the proximate and substantial cause of the claimant's injury; and
164	164	137 (4) The seller did not alter, modify, assemble, or mishandle the product while in the
165	165	138seller's possession in a manner which was the proximate and substantial cause of the claimant's
166	166	139injury.
167	167	140 (b) The defense provided in subsection (a) of this section is not available if the
168	168	141manufacturer is not subject to service of process under the laws of Commonwealth.
169	169	142 (c) Except in an action based on an expressed indemnity agreement, if the seller shows by
170	170	143unrebutted facts that he has satisfied subsection (a) of this section and that subsection (b) of this
171	171	144section does not apply, summary judgment shall be entered in his favor as to the original or third
172	172	145party actions.
173	173	146 (d) Notwithstanding the granting of a motion for summary judgment pursuant to
174	174	147paragraph (c) of this subsection, the seller will thereafter continue to be treated as though he
175	175	148were still a party for all purposes of discovery including the uses thereof. 9 of 9
176	176	149 (e) On a subsequent showing of the occurrence of any condition described in subsection
177	177	150(b) of this section or that one or more of the conditions of subsection (a) of this section did not
178	178	151exist, during the pending litigation, the actions dismissed by summary judgment pursuant to
179	179	152paragraph (c) of this subsection shall be reinstated and are not barred by the passage of time.
180	180	153 Section 8. Effectiveness; civil actions and remedies
181	181	154 (a) Sections one through seven of this chapter, inclusively, shall apply to contracts made
182	182	155before and after the passage of this act.
183	183	156 (b) A seller entity who has been injured by an act or practice declared to be unlawful by
184	184	157the provisions of this chapter may bring an action in the superior court whether by way of
185	185	158original complaint, counterclaim, cross-claim, or third party action, for damages and such
186	186	159equitable relief as the court deems to be necessary and proper.
187	187	160 (c) Judgments entered on actions prior to the passage of this act shall not be re-
188	188	161adjudicated on substantially similar facts and claims pursuant to the passage of this act.”
189	189	162 SECTION 2. This act shall go into effect upon its passage.