JAMES M. VIRGIN
FIREWORKS OF TILTON, LLC & a.
Argued: June 6, 2019
Hamblett & Kerrigan, P.A., of Nashua (J. Daniel Marr and
Andrew J. Piela on the brief, and Mr. Marr orally), for the
Wadleigh, Starr & Peters, PLLC, of Manchester (Joseph G.
Mattson and Stephen Zaharias on the brief, and Mr. Zaharias
orally), for defendant Fireworks of Tilton, LLC.
Devine, Millimet & Branch, P.A., of Manchester (Jonathan
M. Eck on the brief), and Brooke | Stevens, P.C., of Muncie,
Indiana (John H. Brooke and John Stevens on the brief, and
Mr. Brooke orally), for defendant Foursquare Imports, LLC
d/b/a AAH Fireworks, LLC.
interlocutory appeal from the Superior Court
(O'Neill, J.), we are asked to determine whether
RSA 507:7-e (2010) applies to claims for personal injuries
that allege a breach of the implied warranty of
merchantability under RSA 382-A:2-314 (2011), thus permitting
a named defendant to apportion fault to a non-litigant. We
answer the question in the negative and remand.
relevant facts recited in the interlocutory appeal statement
are as follows. On March 24, 2016, the plaintiff, James M.
Virgin, filed the instant action seeking compensation for
personal injuries against the defendants, Fireworks of
Tilton, LLC (Fireworks of Tilton) and Foursquare Imports, LLC
d/b/a AAH Fireworks, LLC (Foursquare). As pertinent to this
appeal, the complaint alleges breach of the implied warranty
of merchantability for damages purportedly sustained as a
result of an incident involving fireworks sold by Fireworks
of Tilton, and distributed by Foursquare. On May 10, 2017,
Foursquare made a DeBenedetto disclosure pursuant to
the case structuring order identifying a Chinese company as
the manufacturer of the fireworks that allegedly caused the
plaintiff's injuries. See DeBenedetto v. CLD
Consulting Eng'rs, 153 N.H. 793, 803-04 (2006);
see also State v. Exxon Mobil Corp., 168 N.H. 211,
259 (2015) ("Pursuant to RSA 507:7-e and
DeBenedetto, defendants may ask a jury to shift or
apportion fault from themselves to other nonparties in a
case."). The plaintiff moved to strike the disclosure
arguing, among other things, that apportionment of fault does
not apply to breach of warranty claims. The trial court
denied the motion, but later granted the plaintiff's
request to file an interlocutory appeal, which we accepted.
See Sup. Ct. R. 8.
507:7-e, I, provides:
In all actions, the court shall:
(a) Instruct the jury to determine, or if there is no jury
shall find, the amount of damages to be awarded to each
claimant and against each defendant in accordance with the
proportionate fault of each of the parties; and
(b) Enter judgment against each party liable on the basis of
the rules of joint and several liability, except that if any
party shall be less than 50 percent at fault, then that
party's liability shall be several and not joint and he
shall be liable only for the damages attributable to him.
(c) RSA 507:7-e, I(b) notwithstanding, in all cases where
parties are found to have knowingly pursued or taken active
part in a common plan or design resulting in the harm, grant
judgment against all such parties on the basis of the rules
of joint and several liability.
RSA 507:7-e, I. The defendants argue that the phrase "in
all actions" plainly shows that the statute is intended
to cover all actions and not just those sounding in tort. The
plaintiff posits that, taken as a whole, the statute was
intended to cover only tort actions, and argues that this
interpretation comports with New Hampshire jurisprudence
recognizing the distinction between tort and contract
this issue requires us to engage in statutory interpretation,
and, therefore, our review is de novo."
N.H. Housing Fin. Auth. v. Pinewood Estates Condo.
Ass'n, 169 N.H. 378, 382 (2016). In matters of
statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed in the words of the
statute considered as a whole. Olson v. Town of
Grafton, 168 N.H. 563, 566 (2016). We first look to the
language of the statute itself, and, if possible, construe
that language according to its plain and ordinary meaning.
Zorn v. Demetri, 158 N.H. 437, 438 (2009). We
interpret legislative intent from the statute as written and
will not consider what the legislature might have said or add
language that the legislature did not see fit to include.
Id. We construe all parts of a statute together to
effectuate its overall purpose and avoid an absurd or unjust
result. Id. Moreover, we do not consider words and
phrases in isolation, but rather within the context ...