Refurbisher of propane tank not strictly liable for defects causing explosion because refurbisher never “sold” the tank.

Betz v. Highlands Fuel Delivery, LLC, No. 5: 10-cv-102 (D. Vt. Jan. 31, 2013) (Reiss, Chief District Judge)

The case arises out of a 2009 explosion of a propane tank owned by Highlands. After Ditech refurbished and recertified the Propane Tank, Highlands placed it on Plaintiffs' property where it exploded and caught fire, destroying Plaintiffs' home and other property. Ditech contends that it provided refurbishment services and was not a "seller" of goods, and did not "sell" the propane tank to anyone. We agree.

Vermont law requires "seller" status as an essential component of a strict product liability or breach of implied warranty claim. See Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 569, (2000)  ("Because CVPSC did not sell the electricity that allegedly caused the fire in this case, the trial court correctly refused to instruct the jury to apply the doctrine of strict product liability."); 9A V.S.A. § 2-314(1) (providing for an implied warranty of merchantability when "the seller [of goods] is a merchant with respect to goods of that kind"); Restatement (Second) of Torts § 402(A) cmt. a ("This Section states a special rule applicable to sellers of products.").

At best, Highlands asserts that Ditech's refurbishment of the Propane Tank was so extensive that it was like the sale of a new product. This will not suffice where the primary objective of the transaction remains the provision of a service. The fact that Ditech supplied a new valve or other items in the processing of refurbishing the Propane Tank does not alter this conclusion. 

Because Highlands cannot establish that Ditech was a "seller" of the Propane Tank, or furnished a defective component part, summary judgment on their strict product liability and breach of implied warranty crossclaims is hereby GRANTED in Ditech's favor.