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Northern Tool and Equipment, Inc. v. Tim Durbin

February 1, 2013

NORTHERN TOOL AND EQUIPMENT, INC.
APPELLANT
v.
TIM DURBIN
APPELLEE



ON DISCRETIONARY REVIEW FROM EDMONSON CIRCUIT COURT HONORABLE RONNIE C. DORTCH, JUDGE ACTION NO. 10-XX-00001

The opinion of the court was delivered by: Thompson, Judge:

RENDERED: FEBRUARY 1, 2013; 10:00 A.M. TO BE PUBLISHED

OPINION

AFFIRMING

BEFORE: COMBS, MAZE AND THOMPSON, JUDGES.

Northern Tool and Equipment, Inc. was granted discretionary review of an order of the Edmonson Circuit Court affirming a district court judgment in a small claims action. Northern Tool argues that the district court improperly shifted the burden of proof to the defendant and erroneously awarded credit card interest. We affirm.

Tim Durbin purchased and installed a generator from Northern Tool. Approximately two to three months later, the generator ignited causing damage to Durbin's property. After Northern Tool took possession and reimbursed Durbin for the cost of the generator, Durbin filed an action in the small claims division of the Edmonson District Court seeking $550 for damage to the vinyl underpinning to his mobile home caused by the fire, $500 for labor to replace the underpinning, and $140 for interest charged to a credit card account used to purchase the generator. After a bench trial, the district court entered a judgment in Durbin's favor. The district court took "judicial notice that new generators do not normally malfunction and catch on fire without some intervening cause." The district court further found that there was no proof that there was an intervening cause resulting in the generator's malfunction. On appeal, the Edmonson Circuit Court affirmed the judgment.

Initially, we note that Durbin did not file a responsive brief. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) states;

If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.

Pursuant to that rule, we accept Northern Tool's statement of the facts and issues as correct. However, we affirm.

Northern Tool contends that this small claims case is governed by the Kentucky Products Liability Act that provides in part:

[I]t shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the product was not defective if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared, and the product was manufactured.

KRS 411.310(2). It argues that the trial court ignored the statutory presumption. It further contends that the Act does not permit the recovery of credit-card interest fees.

We note that Northern Tool has not cited to the record where it preserved the issue of the application of the Kentucky Products Liability Act to Durbin's claim. Further, it has not cited any evidence that it established that the generator's "design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared and the [generator] was ...


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