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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap

No. 2018-0526

JAMES M. VIRGIN

v.

FIREWORKS OF TILTON, LLC & a.

Argued: June 6, 2019

Opinion Issued: August 6, 2019

Hamblett & Kerrigan, P.A., of Nashua (J. Daniel Marr and Andrew J. 

Piela on the brief, and Mr. Marr orally), for the plaintiff.

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.
2

LYNN, C.J. In this 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.

The 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.

RSA 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.
3

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 actions.

“Resolving 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 of the 

statute as a whole. Id. at 438-39. This construction enables us to better 

discern the legislature’s intent and to interpret statutory language in light of 

the policy or purpose sought to be advanced by the statutory scheme. Id. at 

439.

“RSA 507:7-e was enacted in 1986 as part of the legislature’s unified and 

comprehensive approach to comparative fault, apportionment of damages, and 

contribution.” Ocasio v. Fed. Express Corp., 162 N.H. 436, 442 (2011) 

(quotation omitted). “The ‘Act Relative to Tort Reform and Insurance,’ Laws 

1986, 227:2, closely modeled the Uniform Comparative Fault Act, 12 U.L.A. 38-

49 (Supp. 1987), in its treatment of comparative fault and apportionment of 

damages.” Id. (quotation omitted). “As originally enacted in 1986, RSA 507:7-e 

required that judgment be entered against ‘each party liable’ on the basis of 

joint and several liability.” DeBenedetto, 153 N.H. at 798 (quotation omitted). 

In 1989, the legislature amended the statute by adopting a several liability 

approach “for those parties less than 50 percent at fault,” after rejecting the 

initial proposal to create a pure several liability scheme that would have 

provided that defendants in a personal injury action “could only be held liable 

for their percentage of the damages.” Id. at 799 (quotations omitted). In 

Nilsson v. Bierman, 150 N.H. 393 (2003), we held that for purposes of 

apportionment under the statute, the term “parties” included settling parties. 

Id. at 396. In DeBenedetto, we further concluded that the term “parties” 

included not only settling parties, but extended “to all parties contributing to 

the occurrence giving rise to an action, including those immune from liability 

or otherwise not before the court.” DeBenedetto, 153 N.H. at 804.
4

Thus, while we have addressed the scope of RSA 507:7-e with regards to 

named and unnamed parties in a personal injury action, we have not had the 

occasion to consider the question before us in this appeal: whether the statute 

extends to breach of warranty actions. Relying on the statute’s use of the 

phrase “in all actions,” the defendants contend that the statute clearly extends 

to contract claims. In the defendants’ view, had the legislature desired to limit 

the statutory scope to tort actions, it would have done so explicitly. The 

defendants’ interpretation, however, reads the statute in isolation and neglects 

to consider the statutory scheme as a whole. See Zorn, 158 N.H. at 438-39. 

Indeed, when we have considered the statute in its entirety, we have concluded 

that it applies only to tort actions.

In Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341 (1987), we 

were asked to consider the meaning of the phrase “causes of action,” as used in 

the newly enacted tort reform statute, Laws 1986, 227:2, to determine whether 

the case would be governed by the statute or the common law. Id. at 343. In 

that case, the plaintiff sued Jaswell “for negligence, breach of contract, and 

breach of warranty for damages allegedly arising from the purchase and 

operation of a Jaswell drilling rig.” Id. Jaswell filed a third-party complaint 

against General Motors Corporation, alleging that any damages sustained by 

the plaintiff were directly attributable to a defective component part supplied

by General Motors. Id. The trial court dismissed Jaswell’s third-party claim 

against General Motors because the “claim was actually an action for 

contribution,” id. (quotation omitted), and the “traditional common-law rule 

prohibit[ed] contribution, a partial shifting of liability, among joint tortfeasors,” 

Consol. Util. Equipment Serv’s, Inc. v. Emhart Mfg. Corp., 123 N.H. 258, 260 

(1983). After the trial court’s decision, and while the case was pending on 

appeal, the legislature enacted The Act Relative to Tort Reform and Insurance,

which superseded the common law, adopted “the rule of contribution among 

tortfeasors and allow[ed] apportionment of damages,” and applied “‘to causes of 

actions arising on or after July 1, 1986.’” Jaswell Drill Corp., 129 N.H. at 343

(quoting Laws 1986, 227:22). Contrary to Fireworks of Tilton’s assertion, the 

specific question before us in Jaswell Drill Corp. was limited in scope: that is,

whether the phrase “causes of action” should be construed as referring to 

causes of action for contribution or to the underlying causes of action in tort. 

Id. If “causes of action” included those for contribution, Jaswell’s claim could 

proceed; if not, the trial court’s decision was correct. Id. After considering the 

phrase “in conjunction with section 2 of the Act, codified as RSA 507:7-d to -i,” 

we concluded that it was “clear that ‘causes of action’ refers to causes of action 

sounding in tort.” Id. at 345. The statute, therefore, did not apply, and 

Jaswell’s claim for contribution was barred by the common law. Id. at 345-46. 

We noted, however, that there existed the possibility that “Jaswell w[ould] be 

found liable for breach of warranty . . . although it [wa]s not found negligent.” 

Id. at 347. In that scenario, Jaswell could have been “entitled to indemnity 

from [General Motors] under the general rule that a seller suffering and paying 

a judgment against him by an injured person in a warranty action is entitled to 
5

indemnity from a manufacturer who sold the product to him with a similar 

warranty.” Id. (quotation omitted). Thus, in the statute’s infancy, we 

interpreted it to apply only to torts.1 Id. at 345. Given that we defined “causes

of action” under the Act to mean those sounding in tort, it would be illogical to 

now interpret the phrase “all actions,” as used in the same statute, to apply to 

a broader class of cases.

Notwithstanding this history, Fireworks of Tilton argues that we have 

already expanded the statute to cover “all actions.” However, the cases it relies 

on to support this argument are readily distinguishable. To start, Thibault v. 

Sears, Roebuck & Co., 118 N.H. 802 (1978), was decided before the statute was 

amended. See Laws 1986, 227:22 (noting effective date of statute). Second, 

none of the cases cited dealt with breach of warranty claims; rather, they dealt 

solely with negligence and strict liability. See Exxon Mobil Corp., 168 N.H. at 

220; Trull v. Volkswagen of America, 145 N.H. 259, 260, 262, 264-65 (2000); 

Thibault, 118 N.H. at 805-06. Warranty actions differ from claims based on

strict liability, and, in fact, “the multiple difficulties encountered in obtaining 

relief under [the Uniform Commercial Code’s] warranty provisions gave birth to 

the remedy of strict liability.”

2 Moulton v. Groveton Papers Co., 112 N.H. 50, 

54 (1972); see, e.g., Thibault, 118 N.H at 806 (explaining that before the 

adoption of strict liability, a consumer’s only recourse was an action “based 

either on the negligence of the manufacturer or, additionally or alternatively, on 

breach of warranty” (quotation omitted)); Elliot v. Lachance, 109 N.H. 481, 484-

85 (1969) (recognizing generally the adoption of the remedy of strict liability);

Buttrick v. Lessard, 110 N.H. 36, 38 (1969) (noting that a plaintiff may proceed 

on both an implied warranty claim and one for strict liability).

Third, neither Trull nor Exxon Mobil involved the apportionment of 

liability only to an entity also in the supply chain. Trull concerned “the scope 

of liability of a manufacturer to the situations in which the construction or 

design of its product has caused separate or enhanced injuries in the course of 

 

1 To the extent that Fireworks of Tilton argues that Goudreault v. Kleeman, 158 N.H. 236 (2009), 

stands for the proposition that RSA 507:7-e applies to all actions — and not just actions in tort —

it is mistaken. In that case, we plainly stated that “RSA chapter 507 is a broad framework 

governing comparative fault and apportionment of tort liability,” and that sections 7-d and 7-e 

establish “a system for contribution among tortfeasors and reinstituted joint and several liability 

. . . for each party liable.” Id. at 253 (quotation omitted) (emphasis added).

2 We recognize that our case law has, at times, used the term strict liability to include all products 

liability cases. We note, however, that products liability is the umbrella term for multiple different 

types of recovery because “[a] products liability claim may be brought under several theories, 

including strict liability, breach of warranty, and negligence.” 63 Am. Jur. 2d Products Liability

§ 5, at 37 (2010). “The adoption of strict liability [did] not replace the action for breach of implied 

warranty under the Uniform Commercial Code, since breach of implied warranty and strict tort 

liability are alternative remedies.” Id. § 523, at 504 (footnotes omitted). Put another way, “[s]trict 

liability and implied warranty are parallel theories of recovery, one in tort and the other in 

contract, with each theory having its separate elements and procedural conditions for 

recovery.” Id. § 522, at 501.
6

an initial accident brought about by an independent cause.” Trull, 145 N.H. at 

261 (quotation omitted). In Trull, the issue before us was whether a 

“manufacturer should be liable for th[e] portion of the damage or injury caused 

by [a] defective design over and above the damage or injury that probably 

would have occurred as a result of the impact or collision absent the defective 

design.” Id. at 262 (quotation omitted). In Exxon Mobil, the defendant sought 

to apportion liability to “several thousand non-litigants, including . . . gasoline 

suppliers, gasoline importers, foreign refiners, domestic refiners, distributors, 

trucking companies, and persons with leaking underground storage tanks.” 

Exxon Mobil, 168 N.H. at 256. Although the defendant apparently attempted 

to apportion liability to some third-party actors downstream from it in the 

supply chain of its own products, we had no occasion to focus on the propriety 

of its doing so because the trial court had permitted the apportionment issue to 

be presented to the jury, which found that no apportionment was warranted. 

See id. at 257-58. Thus, none of these cases squarely address the issue of 

whether a defendant who is subject to liability without fault based either on 

strict liability or breach of warranty theories of recovery may ask the fact finder 

to apportion liability between entities in the supply chain.

Claims brought under the implied warranty provision of RSA 382-A:2-

314 sound in contract and are expressly created by the statute. Sheehan v. 

Liquor Comm., 126 N.H. 473, 476 (1985). As we have explained, the statutory 

provisions of the Uniform Commercial Code are designed to provide a complete 

remedy. Stephan v. Sears Roebuck & Co., 110 N.H. 248, 250 (1970). Although 

the defendants are correct that we held in Stephan “that contributory 

negligence is a defense to an action for breach of warranty under RSA 382-A:2-

314 in the same manner as in actions based on strict liability,” our conclusion 

was based purely on the language of the Code. Id. at 251 (relying on comments 

from various Code provisions). For example, we relied on Comment 13 to 

Section 2-314, which explains that in actions for breach of the implied 

warranty of merchantability, “an affirmative showing by the seller that the loss 

resulted from some action or event following his own delivery of the goods can 

operate as a defense,” including establishing that the buyer conducted “an 

examination of the goods which ought to have indicated the defect” alleged in 

the action. RSA 382-A:2-314 cmt. 13 (1961); accord RSA 382-A:2-314 cmt. 13 

(2011). The same point is made within the other comments upon which we 

relied. See RSA 382-A:2-316 cmt. 8 (1961) (“Of course if the buyer discovers 

the defect and uses the goods anyway, or if he unreasonably fails to examine 

the goods before he uses them, resulting injuries may be found to result from 

his own action rather than proximately from a breach of warranty.”); RSA 382-

A:2-715 cmt. 5 (1961) (“Where the injury involved follows the use of goods 

without discovery of the defect causing the damage, the question of ‘proximate’ 

cause turns on whether it was reasonable for the buyer to use the goods 

without such inspection,” and if “it was not reasonable for him to do so, or if he 

did in fact discover the defect prior to his use, the injury would not proximately 

result from the breach of warranty.”). Whatever parallels we drew to tort law in 
7

Stephan, our reasoning was squarely based on the language of the Code itself. 

But it does not follow that, based on our decision in Stephan, apportionment 

under RSA 507:7-e applies with equal force to warranty actions under the 

Code, and the defendants have pointed to no comparable Code provision 

supporting such an application.

If we were to accept the defendants’ position that DeBenedetto

apportionment applies to breach of warranty claims between entities in the 

supply chain, the practical result would be that, in order to guard against “the 

empty chair defense,” with its resultant apportionment of liability to parties not 

before the court, an injured plaintiff would be forced to join all potentially liable 

parties, including remote upstream manufacturers or suppliers, in a single 

lawsuit to obtain a complete recovery for his or her injuries. Imposing such a 

requirement would be at odds with one of the primary purposes of implied 

warranties that are applicable to all sellers of products — to enable a consumer 

injured by an unmerchantable product to obtain complete relief from whichever

merchant in the chain of distribution can most conveniently be brought into 

court. See 3 David Frisch, Lawrence’s Anderson on the Uniform Commercial

Code § 2-314:467, at 640 (3d ed. 2013) (noting that “[t]he ability to sue prior 

sellers does not exonerate, or free from liability, the buyer’s immediate seller,” 

and “[e]ven though the buyer may sue the remote manufacturer of the goods, 

the buyer may still sue its immediate seller, and the fact that the immediate 

seller may not be entitled to indemnity from the manufacturer does not bar 

direct suit by the buyer against the seller”); cf. Bylsma v. R.C. Willey, 416 P.3d 

595, 601-02 n.10 & 604 (Utah 2017) (rejecting defense of passive immunity for 

retail seller of defective product because one of the goals of strict liability and 

breach of warranty doctrines is to “impose[ ] . . . liability on every ‘seller’ of the 

product — manufacturers, wholesalers, retailers, and any other party involved 

in the product’s chain of distribution — in order to ensure that a plaintiff will 

have a meaningful remedy”); id. at 606 (“By holding each seller of a defective 

product equally and strictly liable, a plaintiff is guaranteed that at least one 

party — most likely the local retailer — will be known to the plaintiff, amenable 

to suit, and likely solvent at the time of judgment.”); 67A Am. Jur. 2d Sales

§ 625, at 31 (2003) (noting that the general purpose of implied warranties is “to 

protect the buyer from loss where” the goods purchased are below commercial 

standards or are unfit for the buyer’s purpose).

We recognize that the legislature’s purpose in enacting the 1989 

amendment to RSA 507:7-e, which made defendants who are less than 50

percent at fault severally liable only to the extent of their fault, was to 

discourage injured parties from bringing suit against “deep pocket” defendants 

whose fault played only a minimal role in causing a plaintiff’s injuries. See

DeBenedetto, 153 N.H. at 807. We further recognize that our decision today 

holding that DeBenedetto apportionment does not apply to breach of warranty 

actions between persons or entities in the supply chain for liability predicated 

on the same warranty has the potential to encourage the filing of law suits 
8

against persons in the supply chain, such as retailers and distributors or other 

“middlemen,” who played little or no role in the creation of the condition that 

constitutes the breach of warranty, that responsibility most often lying with the 

manufacturer of the product. But unlike in the fault-based tort context, where 

liability is predicated upon the culpable conduct of each person responsible for 

an injury, see Restatement of Torts (Second) § 5, at 9-12 (1965) (discussing the 

term “subject to liability” for purposes of tort law), the purpose of the implied 

warranties established under the Uniform Commercial Code is to establish 

liability on the part of all parties involved in the commercial sale of a defective 

product that causes injury without regard to fault, and to insure that an 

injured consumer has the ability to secure compensation for his or her injuries 

from whichever entity in the chain of distribution can most conveniently be 

held accountable, see Frisch, supra § 2-314:467, at 640. Because in this case 

the only absent party to whom the defendants seek to apportion liability is the 

manufacturer of the fireworks, we have no occasion to consider whether 

defendants in the supply chain of a product may seek to apportion liability for 

an injury to some third party outside of the supply chain whose conduct is 

alleged to have wholly or partially contributed to cause a plaintiff’s injuries, or 

to a third party within the supply chain whose liability is predicated on a basis 

other than the sale of an unmerchantable product. See Bylsma, 416 P.3d at 

611-12.

Our holding does not mean, as Foursquare suggests, that an upstream 

manufacturer is completely shielded from liability. As we have recognized in 

the past, “the New Hampshire Legislature removed both horizontal and vertical 

privity as defenses to implied warranty claims” with the enactment of Section 

2-318 of the Uniform Commercial Code. See Dalton v. Stanley Solar & Stove, 

Inc., 137 N.H. 467, 470 (1993); accord RSA 382-A:2-318 (2011). Applying that

principle here, the plaintiff could have sued the allegedly liable Chinese 

company even though he did not purchase the product directly from it and was 

therefore not in contractual privity. Moreover, as we explained in Jaswell, a 

party liable for breach of warranty may later seek indemnification under “the 

general rule that a seller suffering and paying a judgment against him by an 

injured person in a warranty action is entitled to indemnity from a 

manufacturer who sold the product to him with a similar warranty.” Jaswell 

Drill Corp., 129 N.H. at 347 (quotation omitted). Indeed, nothing in the Code 

displaces this common law principle. See 67A Am. Jur. 2d Sales, supra § 797, 

at 199 (noting that common law principles supplement the Code unless 

displaced).3

 

3 We disagree with the defendants’ claim that Comment 13 to Section 2-314 applies in this case. 

Comment 13 speaks only of a seller’s defense as it relates to events following delivery. See RSA 

382-A:2-314 cmt. 13. The defendants here, however, seek to apportion liability to the upstream 

manufacturer based on its conduct prior to delivery of the fireworks to Foursquare.
9

Because we conclude that RSA 507:7-e does not extend to breach of

warranty actions under the circumstances presented here, we answer the 

interlocutory question in the negative and remand to the trial court.

Remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.