Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1092 Compare Versions

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

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2	2	SENATE DOCKET, NO. 1442 FILED ON: 1/19/2023
3	3	SENATE . . . . . . . . . . . . . . No. 1092
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Patrick M. O'Connor
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 :Patrick M. O'ConnorFirst Plymouth and Norfolk 1 of 9
16	16	SENATE DOCKET, NO. 1442 FILED ON: 1/19/2023
17	17	SENATE . . . . . . . . . . . . . . No. 1092
18	18	By Mr. O'Connor, a petition (accompanied by bill, Senate, No. 1092) of Patrick M. O'Connor for
19	19	legislation to protect innocent sellers. The Judiciary.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE SENATE, NO. 232 OF 2021-2022.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act relative to protecting innocent sellers.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. Title XV is hereby amended by adding the following new chapter:-
31	31	2 “CHAPTER 93M. NONMANUFACTURING SELLER LIABILITY
32	32	3 Section 1. Definitions.
33	33	4 (a) "Claimant" means a party seeking relief, including a plaintiff, counterclaimant, or
34	34	5cross-claimant.
35	35	6 (b) "Products liability action" means any action against a manufacturer or seller for
36	36	7recovery of damages arising out of personal injury, death, or property damage allegedly caused
37	37	8by a defective product whether the action is based in strict tort liability, strict products liability, 2 of 9
38	38	9negligence, misrepresentation, breach of express or implied warranty, or any other theory or
39	39	10combination of theories.
40	40	11 (c) "Seller" means a person who is engaged in the business of distributing or otherwise
41	41	12placing, for any commercial purpose, in the stream of commerce for use or consumption a
42	42	13product or any component part thereof.
43	43	14 (d) "Manufacturer" means a person who is a designer, formulator, constructor, rebuilder,
44	44	15fabricator, producer, compounder, processor, or assembler of any product or any component part
45	45	16thereof and who places the product or any component part thereof in the stream of commerce.
46	46	17 Section 2. Manufacturer's duty to indemnify.
47	47	18 (a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a
48	48	19products liability action, except for any loss caused by the seller's intentional misconduct or other
49	49	20act or omission, such as negligently modifying or altering the product, for which the seller is
50	50	21independently liable.
51	51	22 (b) For purposes of this section, "loss" includes court costs and other reasonable
52	52	23expenses, reasonable attorney fees, and any reasonable damages.
53	53	24 (c) Damages awarded by the trier of fact shall, on final judgment, be deemed reasonable
54	54	25for purposes of this section.
55	55	26 (d) For purposes of this section, a wholesale distributor or retail seller who completely or
56	56	27partially assembles a product in accordance with the manufacturer's instructions shall be
57	57	28considered a seller.
58	58	29 (e) The duty to indemnify under this section: 3 of 9
59	59	30 (1) applies without regard to the manner in which the action is concluded;
60	60	31 (2) shall supersede a preexisting contractual agreement absolving a manufacturer of the
61	61	32duty to indemnify; and
62	62	33 (3) is in addition to any duty to indemnify established by law, contract, or otherwise.
63	63	34 (f) A seller eligible for indemnification under this section shall give reasonable notice to
64	64	35the manufacturer of a product claimed in a petition or complaint to be defective, unless the
65	65	36manufacturer has been served as a party or otherwise has notice of the action.
66	66	37 (g) A seller is entitled to recover from the manufacturer court costs and other reasonable
67	67	38expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce
68	68	39the seller's right to indemnification under this section.
69	69	40 Section 3. Liability of nonmanufacturing sellers.
70	70	41 (a) A seller that did not manufacture a product is not liable for harm caused to the
71	71	42claimant by that product unless the claimant proves:
72	72	43 (1) that the seller participated in the design of the product;
73	73	44 (2) that the seller altered or modified the product and the claimant's harm resulted from
74	74	45that alteration or modification;
75	75	46 (3) that the seller installed the product, or had the product installed, on another product
76	76	47and the claimant's harm resulted from the product's installation onto the assembled product;
77	77	48 (4) that: 4 of 9
78	78	49 (i) the seller exercised substantial control over the content of a warning or instruction that
79	79	50accompanied the product;
80	80	51 (ii) the warning or instruction was inadequate; and
81	81	52 (iii) the claimant's harm resulted from the inadequacy of the warning or instruction;
82	82	53 (5) that:
83	83	54 (i) the seller made an express factual representation about an aspect of the product;
84	84	55 (ii) the representation was incorrect;
85	85	56 (iii) the claimant relied on the representation in obtaining or using the product; and
86	86	57 (iv) if the aspect of the product had been as represented, the claimant would not have
87	87	58been harmed by the product or would not have suffered the same degree of harm; or
88	88	59 (6) that:
89	89	60 (i) the seller actually knew of a defect to the product at the time the seller supplied the
90	90	61product; and
91	91	62 (ii) the claimant's harm resulted from the defect.
92	92	63 (b) This section does not apply to a manufacturer or seller whose liability in a products
93	93	64liability action is governed by Chapter 93B. In the event of a conflict, Chapter 93B prevails over
94	94	65this section.
95	95	66 (c) If after service on a nonresident manufacturer through the secretary of state, the
96	96	67manufacturer fails to answer or otherwise make an appearance in the time required by law, it is 5 of 9
97	97	68conclusively presumed for the purposes of Subsection (a)(7)(B) that the manufacturer is not
98	98	69subject to the jurisdiction of the court unless the seller is able to secure personal jurisdiction over
99	99	70the manufacturer in the action.
100	100	71 Section 4. Design defects.
101	101	72 (a) In a products liability action against a seller in which a claimant alleges a design
102	102	73defect, the burden is on the claimant to prove by a preponderance of the evidence that:
103	103	74 (1) it is proper to bring action against a seller rather than the manufacturer because a
104	104	75judgment is not recoverable from the assets of the bankruptcy estate associated with said
105	105	76manufacturer;
106	106	77 (2) there was a safer alternative design; and
107	107	78 (3) the defect was a producing cause of the personal injury, property damage, or death for
108	108	79which the claimant seeks recovery.
109	109	80 (b) In this section, "safer alternative design" means a product design other than the one
110	110	81actually used that in reasonable probability:
111	111	82 (1) would have prevented or significantly reduced the risk of the claimant's personal
112	112	83injury, property damage, or death without substantially impairing the product's utility; and
113	113	84 (2) was economically and technologically feasible at the time the product left the control
114	114	85of the manufacturer or seller by the application of existing or reasonably achievable scientific
115	115	86knowledge. 6 of 9
116	116	87 (c) This section does not apply to a drug or device as those terms are defined in the
117	117	88federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321).
118	118	89 (d) This section is not declarative, by implication or otherwise, of the common law with
119	119	90respect to any product and shall not be construed to restrict the courts of this state in developing
120	120	91the common law with respect to any product which is not subject to this section.
121	121	92 Section 5. Compliance with government standards.
122	122	93 (a) In a products liability action brought against a product manufacturer or seller, there is
123	123	94a rebuttable presumption that the product manufacturer or seller is not liable for any injury to a
124	124	95claimant caused by some aspect of the formulation, labeling, or design of a product if the product
125	125	96manufacturer or seller establishes that the product's formula, labeling, or design complied with
126	126	97mandatory safety standards or regulations adopted and promulgated by the federal government,
127	127	98or an agency of the federal government, that were applicable to the product at the time of
128	128	99manufacture and that governed the product risk that allegedly caused harm.
129	129	100 (b) The claimant may rebut the presumption in Subsection (a) by establishing that:
130	130	101 (1) the mandatory federal safety standards or regulations applicable to the product were
131	131	102inadequate to protect the public from unreasonable risks of injury or damage; or
132	132	103 (2) the manufacturer, before or after marketing the product, withheld or misrepresented
133	133	104information or material relevant to the federal government's or agency's determination of
134	134	105adequacy of the safety standards or regulations at issue in the action. 7 of 9
135	135	106 (c) This section does not extend to manufacturing flaws or defects even though the
136	136	107product manufacturer has complied with all quality control and manufacturing practices
137	137	108mandated by the federal government or an agency of the federal government.
138	138	109 Section 6. Affidavit by seller identifying manufacturer
139	139	110 (a) In any product liability action against a product seller, the product seller may file an
140	140	111affidavit certifying the correct identity of the manufacturer of the product which allegedly caused
141	141	112the injury, death or damage.
142	142	113 (b) Upon filing the affidavit pursuant to subsection (a) of this section, the product seller
143	143	114shall be relieved of all strict liability claims, subject to the provisions set forth in subsection (a)
144	144	115of section 3 of this chapter. Due diligence shall be exercised in providing the plaintiff with the
145	145	116correct identity of the manufacturer or manufacturers.
146	146	117 (c) The product seller shall be subject to strict liability if:
147	147	118 (1) The identity of the manufacturer given to the plaintiff by the product seller was
148	148	119incorrect. Once the correct identity of the manufacturer has been provided, the product seller
149	149	120shall again be relieved of all strict liability claims, subject to subsection (d) of this section; or
150	150	121 (2) The manufacturer has no known agents, facility, or other presence within the United
151	151	122States; or
152	152	123 (3) A judgment is not recoverable from the assets of the bankruptcy estate.
153	153	124 (d) The commencement of a product liability action based in whole or in part on the
154	154	125doctrine of strict liability against a product seller shall toll the applicable statute of limitations 8 of 9
155	155	126with respect to manufacturers who have been identified pursuant to the provisions of subsection
156	156	127(a) of this section.
157	157	128 Section 7. Elements of defense; summary judgment; reinstatement of action
158	158	129 (a) It shall be a defense to an action against a seller of a product for property damage or
159	159	130personal injury allegedly caused by the defective design or manufacture of a product if the seller
160	160	131establishes that:
161	161	132 (1) The seller had no knowledge of the defect;
162	162	133 (2) The seller in the performance of the duties he performed or while the product was in
163	163	134his possession could not have discovered the defect while exercising reasonable care;
164	164	135 (3) The seller did not manufacture, produce, design, or designate the specifications for the
165	165	136product which conduct was the proximate and substantial cause of the claimant's injury; and
166	166	137 (4) The seller did not alter, modify, assemble, or mishandle the product while in the
167	167	138seller's possession in a manner which was the proximate and substantial cause of the claimant's
168	168	139injury.
169	169	140 (b) The defense provided in subsection (a) of this section is not available if the
170	170	141manufacturer is not subject to service of process under the laws of Commonwealth.
171	171	142 (c) Except in an action based on an expressed indemnity agreement, if the seller shows by
172	172	143unrebutted facts that he has satisfied subsection (a) of this section and that subsection (b) of this
173	173	144section does not apply, summary judgment shall be entered in his favor as to the original or third
174	174	145party actions. 9 of 9
175	175	146 (d) Notwithstanding the granting of a motion for summary judgment pursuant to
176	176	147paragraph (c) of this subsection, the seller will thereafter continue to be treated as though he
177	177	148were still a party for all purposes of discovery including the uses thereof.
178	178	149 (e) On a subsequent showing of the occurrence of any condition described in subsection
179	179	150(b) of this section or that one or more of the conditions of subsection (a) of this section did not
180	180	151exist, during the pending litigation, the actions dismissed by summary judgment pursuant to
181	181	152paragraph (c) of this subsection shall be reinstated and are not barred by the passage of time.
182	182	153 Section 8. Effectiveness; civil actions and remedies
183	183	154 (a) Sections one through seven of this chapter, inclusively, shall apply to contracts made
184	184	155before and after the passage of this act.
185	185	156 (b) A seller entity who has been injured by an act or practice declared to be unlawful by
186	186	157the provisions of this chapter may bring an action in the superior court whether by way of
187	187	158original complaint, counterclaim, cross-claim, or third party action, for damages and such
188	188	159equitable relief as the court deems to be necessary and proper.
189	189	160 (c) Judgments entered on actions prior to the passage of this act shall not be re-
190	190	161adjudicated on substantially similar facts and claims pursuant to the passage of this act.”
191	191	162 SECTION 2. This act shall go into effect upon its passage.