Opinion
No. 98-CA-00419-SCT
February 22, 2001
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. BARRY W. FORD, DATE OF JUDGMENT: 11/26/1997
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART
ATTORNEYS FOR APPELLANTS: MICHAEL D. CHASE, L.F. SAMS, JR., WILLIAM C. SPENCER, H. MITCHELL COWAN, POPE SHANNON MALLETTE
ATTORNEYS FOR APPELLEE: GARY L. CARNATHAN, GRADY F. TOLLISON, JR., E. FARISH PERCY
BEFORE BANKS AND McRAE, P. JJ., AND COBB, J.
¶ 1. This products liability case presents issues of liability as well as apportionment of any such liability under our allocation of fault statute, Miss. Code Ann. § 85-5-7 (1999). We dispose of the liability issues summarily and affirm. Plaintiff, on cross-appeal, presses an issue regarding punitive damages with respect to which we also affirm the trial court summarily. As to allocation of fault, we conclude that the best construction of the statute is that fault not be allocated to employers who are immune from liability by virtue of our workers' compensation law. We conclude that the trial court properly found the remaining non-settling defendants liable for the portion of fault not attributed to the plaintiff's decedent or to other non-immune joint tortfeasors. Finally, we conclude that this was a proper case for application of the settlement-first method of reducing damages found by the jury. In accordance with these conclusions, we affirm in part and reverse and remand in part.
I.
¶ 2. This case is an appeal of a wrongful death action arising from the death of an employee of Wilburn Oil Company ("Wilburn Oil"). The plaintiff is Bobbi Tackett ("Tackett"), only daughter and wrongful death beneficiary of Tony Joe Murphree, the employee who died as a result of an explosion while unloading fuel for his employer. On May 12, 1993, Murphree and Roger Angle, another Wilburn Oil employee, each had truckloads of fuel on two separate trucks, one a Mack powered by a Mack engine, the other a Freightliner powered by a Cummins engine. Murphree was the Mack truck driver. Angle was the Freightliner driver.
¶ 3. Contrary to company policy, but consistent with at least one prior occasion, Murphree and Angle decided to offload both trucks at once. Fuel was unloaded from both trucks using hoses and a "T" connector. The fuel was driven by a pump powered by a power-take-off (PTO) on the Mack truck, necessitating that the Mack engine be left running. The Freightliner engine was also left running, though this was not necessary since only the Mack truck was used to pump the fuel to the above ground storage tanks. The Freightliner engine should not have been left running under ordinary safety procedures.
¶ 4. Just prior to the explosion Angle was on top of his tanker attached to the Freightliner, looking down into the tanker compartment, checking to see how much fuel was unloaded. Angle said it was at this point that he looked over and saw gas spraying in the air. This was approximately ten to fifteen minutes into the off-loading process. The gasoline spray was coming up between the two trucks, toward the Freightliner on which Angle stood. The spray was like a mist from a garden hose when a thumb is held over it. Upon seeing the spraying fuel, Angle shouted to Murphree to cut off the truck or get off the truck as he ran back toward the rear of his tanker. At this point Angle jumped from the tanker, and one of the trucks exploded. Prior to the explosion he last saw Murphree running toward the Freightliner. After the explosion Angle heard Murphree scream, but he could not see him. Angle went around the side of the truck looking for Murphree when a second explosion occurred. Thereafter, Murphree walked out between the two trucks on fire. He received burns to 99 percent of his body and died in a hospital on May 14, 1993.
¶ 5. Tackett filed this wrongful death action in the Lee County Circuit Court seeking damages from defendants Mack Trucks Inc. ("Mack"), which built the Mack truck; Cummins Engine Company, Inc. ("Cummins") which manufactured the diesel engine in the Freightliner truck; and Freightliner Corporation, which manufactured the Freightliner truck. Tackett claims that the defendants caused her father's death and are liable to her based on theories of products liability and failure to warn. Tackett claims that the engines in both trucks were defectively designed because they did not contain an automatic shutoff device and that the trucks' air intake systems should have been fitted with a safety device which would close it off if the engine exceeded a certain speed. Tackett also claims that there were inadequate warnings of the danger concerning (i) the alleged danger posed by the operation of a diesel engine in an environment where there are or can be combustible vapors; (ii) the alleged need for safety shutdown devices, and/or (iii) the appropriate response in the event of an engine overspeed or runaway.
¶ 6. Tackett's theory is that one or both of the engines caused the fire in which Murphree was severely burned and died. Tackett argued that the engine of either the Mack or the Freightliner, or both, began to run away because of the ingested volatile fumes, and the run away caused the explosion and fire. "Runaway" or "overspeeding" is a phenomenon whereby a diesel engine sucks in a volatile gas or vapor through its air intake system. In such a situation the engine will continue to run even if there is no diesel going into it. The only way to stop the engine is to stop the air or stop the fuel. In such a situation the idle can increase dramatically.
¶ 7. John Wiss, Tackett's expert in the fields of mechanical engineering and fire origin or causation, testified that in his opinion both engines "spun up" after ingesting gasoline vapors through the air intakes. Wiss testified that in his opinion the probable cause of the fire was that one of the engines, either one, caused the fire by running away, overheating its exhaust pipe, and probably blowing flames through the exhaust igniting the gasoline. Wiss also testified that in his opinion both the Mack diesel engine in the Mack truck, and the Cummins diesel engine in the Freightliner were unreasonably dangerous for the environment that they were in.
¶ 8. During depositions Angle testified he was "99 percent positive" that Murphree got the Freightliner shut down. However, Angle testified at trial that he heard one of the trucks blow up, but did not see which one. Angle assumed it was the Mack but only if Murphree had managed to shut down the Freightliner, he could not say for certain which truck started the fire.
¶ 9. The defendants offered other theories regarding how the fire may have been ignited. Dr. Edward Cox, a metallurgy expert retained by Cummins, testified that he did not find any internal damage to either engine or evidence that either engine oversped. Other possible ignition sources suggested by the defendants are either the electrical system or hot engine or exhaust parts. Dr. Cox testified that in his opinion the source of the fire was from a spark originating from a battery cable on the Mack truck. The defendants also argued that the proximate cause of the fire was the leaking fuel, caused by a worn hose or coupling, and the negligence of the employees, but not the trucks or their diesel engines.
¶ 10. Gilbert Rhoades, an expert in accident reconstruction and mechanical engineering retained by Cummins, testified that in his opinion the ignition source was the shorted out battery cables on the Mack truck. Rhoades testified that he found no signs that the Cummins engine ever operated at above normal temperatures, did not overspeed, and that in his opinion the Cummins engine was not a factor in causing the fire.
¶ 11. Curtis Mark Siemers, Freightliner's expert in fuel hauling, handling, and transportation, testified that the connection between the fuel hoses, the two trucks, and the storage tanks was inherently unsafe, because not all hoses, connections and fittings could be monitored at the same time. He also stated that it was dangerous for the two trucks to be parked next to each other while unloading. Siemers also testified that one of the couplings at the hose had a shim in it to make a tighter connection, indicating that the coupling was worn, and that to use such a shim was not a safe procedure.
¶ 12. Dr. John Moskwa, Mack's expert in mechanical engineering and diesel, also testified that there was no evidence of overspeed in the Mack truck and that the Mack was the least likely to overspeed due to its dual air intake design and the fact that it was operating under a load, driving the PTO to pump the fuel. Dr. Moskwa also testified that he found no evidence of overspeeding in the Cummins engine. He testified that in his opinion neither the Mack or the Cummins engines were defective or unreasonably dangerous.
¶ 13. George Casallas, Mack's expert in electrical engineering, fire reconstruction, and forensic engineering, testified that in his opinion the fire originated in the Freightliner truck, that it was not overspeeding that caused the fire, and that in his experience an overspeeding engine would not cause an instantaneous fire such as the one in this case. Casellas stated that the fire was hotter, longer in duration, and more intense in the Freightliner.
¶ 14. Tackett reached a settlement with Freightliner just before closing arguments. The case was submitted to the jury against Mack and Cummins, and the jury was instructed to allocate percentages of fault as between Murphree, Wilburn Oil, Mack and Cummins. The jury found from the preponderance of the evidence that both defendants — Cummins and Mack Trucks — were guilty of fault on either of Tackett's claims, which was the proximate cause of Murphree's death. The jury further found that negligence on the part of Wilburn Oil and Murphree himself were also proximate causes of Murphree's death. The jury then made an allocation of fault as follows: Murphree 60%; Wilburn Oil 39%; Mack 3/4%; Cummins 1/4%.
¶ 15. The jury assessed total damages of $1.8 million. In formulating the judgment the trial court applied the Freightliner settlement proceeds, $330,000 to reduce the damages assessed to $1,470,000. After deducting 60% of that amount for the fault attributed to Murphree, it arrived at recoverable damages of $588,000. Since the fault attributed to Wilburn Oil was uncollectible due to its immunity under our workers' compensation law, Mack and Cummins were determined to be jointly and severally liable to the extent necessary to allow a recovery of 50% of recoverable damages, to wit, $294,000. The trial court then allocated the $294,000 between Mack and Cummins in proportion to their relative percentages of fault, that is, a ratio of 3 to 1 and entered judgment against Mack for $220,500 and against Cummins for $73,500.
¶ 16. On appeal, Mack and Cummins argue that their trucks were not defectively designed, that they had no duty to install an air intake safety device, and that there was no evidence presented which would support the proposition that the use of such a device would have prevented the fire. Mack and Cummins further argue that they were improperly held liable for the employer's share of fault and, in any event, that the method of deducting the settlement was unlawful. Mack further contends, all else failing, that the method of apportionment of the joint and several liability as between Cummins and it was unlawful.
¶ 17. Tackett argues that the engine overspeeding phenomenon was known to the industry and that Mack and Cummins had a duty to warn of the danger and to install a safety shut-off device. Tackett cross-appeals asserting that she should have been allowed to argue punitive damages to the jury.
II.
¶ 18. After careful consideration of the briefs and the record, we treat the liability issues summarily.
a.
¶ 19. This case involved a battle of experts regarding whether either or both engines in question were defectively designed for failure to include an automatic air intake shutdown device to prevent "overspeeding," whether there was a failure to adequately warn of the danger from overspeeding and whether either or both of these failures proximately caused the accident. We conclude that there was sufficient evidence to present a jury question as to each issue.
Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.
Bell v. City of Bay St. Louis , 467 So.2d 657, 660 (Miss. 1985).
¶ 20. Mack and Cummins argue that Hall v. Mississippi Chem. Exp. Inc. , 528 So.2d 796 (Miss. 1988), is controlling Mississippi precedent for the proposition that both the truck and the diesel engine were not defective as a matter of law. That case, however, turned on the level of proof before the Court at that time. The conclusion reached in that case is not binding upon this Court in its review of a different record.
¶ 21. Accordingly, we affirm the action of the trial court in accepting the verdict and refusing to set aside the verdict of the jury.
b.
¶ 22. Tackett contends that she should have been allowed to present the issue of punitive damages to the jury. Our review convinces us that the trial court did not err in refusing to submit this issue to the jury in that there was no clear and convincing evidence of malice or gross negligence. Miss. Code Ann. § 11-1-65(1) (Supp. 2000).
III.
¶ 23. Mack and Cummins claim that the court erred in allocating liability by attributing that portion of the fault allocated to Wilburn Oil to them collectively and, in any event, by improperly deducting the Freightliner settlement proceeds from the entire assessment of damages. Mack also contends that there was an improper allocation as between it and Cummins.
a.
¶ 24. Tackett suggests that Wilburn Oil should never have been included in the allocation of fault and, therefore, that the trial court properly re-allocated the jury's assessment against Wilburn Oil to Mack and Cummins. She argues that employers, immune by virtue of our workers' compensation law, are not parties or potential parties subject to historical joint and several liability in tort for injuries to their employees and, as such, should not be included in an equation designed to apportion fault only for purposes of imposing joint and several liability. We agree.
¶ 25. While Mack and Cummins contend that the purpose of the statute was to arrive at a system where liability is restricted to only that portion of the injury attributable to the acts of the particular defendant, it is our view that the statute took only a limited step in that direction. Clearly it saved for the injured plaintiff, joint and several collection rights to the extent of allowing recovery of fifty percent of damages. Moreover, it explicitly preserves immunities and defenses and leaves for interpretation the question which if any non-parties may be considered for allocation of fault. We conclude that immune actors should not be considered in the allocation of fault.
¶ 26. Neither the injured party nor a contributing tortfeasor may recover from immune parties. The statute explicitly contemplates an action for contribution for payments over and above the paying tortfeasor's percentage of fault. Implicitly, the statute assumes that an injured party will be made whole by the several tortfeasors absent insolvency. Immune actors were not included in the 100% joint and several liability formulation which obtained before this statutory reform. It follows that the exclusion of immune actors from suits in which liability arose should not be considered a problem which the statute was intended to address absent some explicit reference in the statute to such actors.
¶ 27. Mack and Cummins insisted that fault be attributed to Wilburn Oil. They now complain that fault having been assessed, they should not be made to pay for that fault. We disagree. Wilburn Oil was erroneously injected into the fault allocation equation. We will not upset the jury verdict for that reason at the behest of those who urged the erroneous allocation. We take the verdict to mean that Murphree was 60% at fault. The remaining fault is attributed to those defendants left before the jury.
Mack urged the court to leave Freightliner in the allocation equation. The court's failure to do so is not assigned as error.
b.
¶ 28. Mack and Cummins claim that even if they are deemed liable for the portion of fault attributed to Wilburn Oil, the trial court erred in computing their level of liability by deducting the settlement amount from the assessment of damages before reducing that assessment for the allocation of fault as between the plaintiff's decedent and defendants. they would have applied the fault attributed to plaintiff's decedent to reduce the damages to $720,000 and then applied the statutory 50% joint and several rule to that amount. From the resulting $360,000, they would deduct the $330,000 paid by Freightliner to leave $30,000 for them to pay.
¶ 29. They argue that this result would still cause them to pay more than the collective 1% allocated to them, that is, $18,000. They suggest that for this reason our decision in McBride v. Chevron U.S.A. , 673 So.2d 372 (Miss. 1996) is distinguishable. In McBride we held that the settlement-first method used by the trial court here, where the issue put to the jury involved only an allocation of fault as between the plaintiff and non-settling defendants. Leaving Wilburn Oil aside, that is in fact what happened here. As we have already concluded that the allocation of fault to Wilburn Oil was erroneous and was properly ignored by the trial court, McBride governs.
c.
¶ 30. Finally, it is contended that the trial court erred as between Mack and Cummins by allocating their liability for the fault attributed to Wilburn Oil as well as their joint and several liability to reach the 50% goal proportionately in accordance with the jury allocation of fault to them respectively. We agree.
¶ 31. The judgment should be reformed to find that Mack is liable for $13,500 and Cummins for $4,500 and that the parties are jointly and severally liable for $276,000. The parties, of course, are jointly and severally liable for the entirety of the $294,000, but, assuming each pays, their respective shares should be $151,500 for Mack and $142,500 for Cummins.
IV.
¶ 32. For the foregoing reasons, the judgment of the circuit court is hereby affirmed in all respects except as to the allocation of liability as between Mack and Cummins. The judgment is reversed and remanded to the trial court for reformation as indicated herein.
¶ 33. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. PITTMAN, C.J., WALLER, COBB, DIAZ AND EASLEY, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. SMITH, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, J. MILLS, J., NOT PARTICIPATING.
¶ 34. I agree with the majority's decision to affirm the judgment of the trial court regarding the liability issues in this case. Furthermore, I agree with the majority that Wilburn Oil was erroneously injected into the fault allocation equation. Like the majority, I believe that fault is not to be allocated to employers who are immune from liability based on workers' compensation law. However, the majority opinion does not fully articulate the means by which the workers' compensation statute and Miss. Code Ann. § 85-5-7(8) (1999) work together.
¶ 35. In my view, that this Court should follow Stringfellow v. Reed , 739 F. Supp. 324 (S.D.Miss. 1990), in setting out the analysis of why fault is not to be allocated to employers who pay workers' compensation. Stringfellow holds that an employer who is immune to tort action by an employee under workers' compensation law is not rendered amendable to such suits by Miss. Code Ann. § 85-5-7(7), which requires apportionment of liability among tortfeasors. Id. at 325.
¶ 36. Having secured compensation benefits for its employees, Wilburn Oil is protected from tort liability by Miss. Code Ann. § 71-3-9 (2000), which provides, "The liability of an employer to pay compensation shall be exclusive and in place of all other liability . . ." Miss. Code Ann. § 85-5-7(7) requires that liability be apportioned by the fact-finder among joint tortfeasors according to their degree of fault. Although the argument may be made that Wilburn Oil should be included in the fault allocation equation pursuant to Miss. Code Ann. § 85-5-7(7), such an argument lacks merit.
¶ 37. This Court essentially finds, similar to the holding of the Stringfellow , that because of the operation of the exclusive remedy doctrine of workers' compensation law, Mack and Cummings are not joint tortfeasors with Wilburn Oil. Miss. Code Ann. § 85-5-7(8), provides, "Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person." Therefore, Miss. Code Ann. § 85-5-7(7) does not affect the tort immunity of Wilburn Oil. As a result, Wilburn Oil, per Miss. Code Ann. § 85-5-7(8), should not be included in the fault allocation equation.