TITLE 18

Insurance Code

Insurance

CHAPTER 70. SEALED CONTAINER DEFENSE IN PRODUCT LIABILITY


(a) In this section, the following words have the meanings indicated:

(1)a. "Manufacturer" means a designer, assembler, fabricator, constructor, compounder, producer or processor of any product or its component parts.

b. "Manufacturer" includes an entity not otherwise a manufacturer that imports a product or otherwise holds itself out as a manufacturer.

(2) "Product" means any tangible article, including attachments, accessories and component parts and accompanying labels, warnings, instructions and packaging.

(3) "Sealed container" means a box, container, package, wrapping, encasement or housing of any nature that covers a product so that it would be unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition in the product. A product shall be deemed to be in a sealed container if the product, by its nature and design, is encased or sold in any other manner making it unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition.

(4)a. "Seller" means a wholesaler, distributor, retailer or other individual or entity other than a manufacturer that is regularly engaged in the selling of a product whether the sale is for resale by the purchaser or is for use or consumption by the ultimate consumer.

b. "Seller" includes a lessor or bailor regularly engaged in the business of the lease or bailment of the product.

(5) "Similar product" means another article of the same design produced by the same manufacturer.

(b) It shall be a defense to an action against a seller of a product for property damage or personal injury allegedly caused by the defective design or manufacture of a product if the seller establishes that:

(1) The product was acquired and then sold or leased by the seller in a sealed container and in unaltered form;

(2) The seller had no knowledge of the defect;

(3) In the performance of the duties the seller performed or while the product was in the seller's possession could not have discovered the defect while exercising reasonable care;

(4) The seller did not manufacturer, produce, design or designate the specifications for the product, which conduct was the proximate and substantial cause of the claimant's injury;

(5) The seller did not alter, modify, assemble or mishandle the product while in the seller's possession in a manner which was the proximate and substantial cause of the claimant's injury; and

(6) The seller had not received notice of the defect from purchasers of similar products.

(c) The defense provided in subsection (b) of this section is not available if:

(1) The claimant is unable to identify the manufacturer through reasonable effort;

(2) The manufacturer is insolvent, immune from suit or not subject to suit in Delaware; or

(3) The seller made any express warranties, the breach of which were the proximate and substantial cause of the claimant's injury.

(d)(1) Except in an action based on an expressed indemnity agreement, if the seller shows by unrebutted facts that he/she had satisfied subsection (b) of this section and that subsection (c) of this section does not apply, summary judgment shall be entered in his/her favor as to the original or third party actions.

(2) Notwithstanding the granting of a motion for summary judgment pursuant to paragraph (1) of this subsection, the seller will thereafter continue to be treated as though he/she were still a party for all purposes of discovery including the uses thereof.

(3) On a subsequent showing of the occurrence of any condition described in subsection (c) of this section, or that 1 or more of the conditions of subsection (b) of this section did not exist, during the pending litigation, the actions dismissed by summary judgment pursuant to subsection (d)(1) of this section shall be reinstated and are not barred by the passage of time.

66 Del. Laws, c. 45, § 1; 70 Del. Laws, c. 186, § 1.;