(1) (a) Notwithstanding any statutory provision to the contrary, all actions for or on account of personal injury, death, or property damage brought against a person or entity on account of the design, assembly, fabrication, production, or construction of new manufacturing equipment, or any component part thereof, or involving the sale or lease of such equipment shall be brought within the time provided in section 13-80-102 and not thereafter.
(b) Except as provided in paragraph (c) of this subsection (1), no such action shall be brought on a claim arising more than seven years after such equipment was first used for its intended purpose by someone not engaged in the business of manufacturing, selling, or leasing such equipment, except when the claim arises from injury due to hidden defects or prolonged exposure to hazardous material.
(c) The time limitation specified in paragraph (b) of this subsection (1) shall not apply if the manufacturer, seller, or lessor intentionally misrepresented or fraudulently concealed any material fact concerning said equipment which is a proximate cause of the injury, death, or property damage.
(2) As used in this section, "manufacturing equipment" means equipment used in the operation or process of producing a new product, article, substance, or commodity for the purposes of commercial sale and different from and having a distinctive name, character, or use from the raw or prepared materials used in the operation or process.
(3) The provisions of subsection (1) of this section shall not apply to a claim against a manufacturer, seller, or lessor, who, in an express written warranty, warranted manufacturing equipment to be free of defects in design, manufacture, or materials for a period of time greater than that set forth in paragraph (b) of subsection (1) of this section, if the injury complained of occurred and the claim for relief arose during the period of the express written warranty.
(4) The provisions of subsection (1) of this section shall not be applicable to indemnity actions brought by a manufacturer, seller, or lessor of manufacturing equipment or any other product against any other person who is or may be liable to said manufacturer, seller, or lessor for all or a portion of any judgment rendered against said manufacturer, seller, or lessor.
Source: L. 86: Entire article R&RE, p. 699, 1, effective July 1. L. 87: (1)(a) amended, p. 568, 5, effective July 1; (1)(a) amended, p. 594, 19, effective July 10.
Editor's note: This section is similar to former 13-80-127.6 as it existed prior to 1986.
Annotator's note. Since 13-80-107 is similar to former 13-80-127.6, as it existed prior to the 1986 repeal and reenactment of this article, relevant cases construing that provision have been included with the annotations to this section.
This section is substantive law, not procedural, since it is directed to the products liability action created in part 4 of article 21 of this title and qualifies the right to bring an action. Nieman v. Press & Equip. Sales Co., 588 F. Supp. 650 (S. D. Ohio 1984) (decided under former 13-80-127.6).
Section held constitutional under the equal protection clause of fourteenth amendment. Anderson v. M.W. Kellogg Co., 766 P.2d 637 (Colo. 1988); Eaton v. Jarvis, 965 F.2d 922 (10th Cir. 1992).
Test for this section is whether the defect was not readily apparent or discoverable by a reasonably prudent user. From the legislative history of this section, the legislature did not intend to include the failure to warn within the exception it created for hidden defects under this section. Anderson v. M.W. Kellogg Co., 766 P.2d 637 (Colo. 1988).
The statute does not apply to bar an action when the claim arises from injury due to hidden defects. Niemet v. Gen. Elec. Co., 843 P.2d 87 (Colo. App. 1992).
Hidden defect exception to the statute of repose operates to prevent the statute from barring plaintiff's action when malfunctioning transformer contained a defect that was present at the time of manufacture and the defect was not discovered, and could not have been discovered, until the entire transformer was cut in half. Niemet v. Gen. Elec. Co., 843 P.2d 87 (Colo. App. 1992).
Whether a product is unreasonably dangerous because of a defect generally is a question of fact, and the appropriate standard for determination of issue is based upon actual awareness of dangerous condition of machine. Wayda v. Comet Intern. Corp., 738 P.2d 391 (Colo. App. 1987).
Subsection (1)(b) creates a statute of repose rather than a statute of limitations. A statute of repose may bar a claim before an injury occurs because it sets a time after the sale or first use of a product beyond which the manufacturer cannot be held liable. Anderson v. M.W. Kellogg Co., 766 P.2d 637 (Colo. 1988); Villalobos v. Heidelberger Druckmaschien Artiengesellschaft, 869 F. Supp. 1355 (D. Colo. 1994).
Defendant that did not manufacture, sell, or lease the equipment in question may not avail itself of the statute of repose created in subsection (1)(b). Villalobos v. Heidelberger Druckmaschien Artiengesellschaft, 869 F. Supp. 1355 (D. Colo. 1994).
Statute of repose began to run when the "new manufacturing equipment" was first installed and used as intended, not when the alleged defective component was first used. Eaton v. Jarvis, 965 F.2d 922 (10th Cir. 1992).
Printing press falls within the definition of "manufacturing equipment" since the end-product of the press has a character and use distinct from the raw materials used in the printing operation and the final product is prepared exclusively for commercial sale. Villalobos v. Heidelberger Druckmaschien Artiengesellschaft, 869 F. Supp. 1355 (D. Colo. 1994).