MICHAEL GERHARDT and MICHAEL GERHARDT, Administrator of the Estate of DEBRA GERHARDT Plaintiffs,
CATTRON-THEIMEG, INC., Defendant, and ALCAN PRIMARY PRODUCTS CORPORATION/LIBERTY MUTUAL INSURANCE COMPANY INTERVENING Plaintiff,
ALCAN PRIMARY PRODUCTS CORPORATION THIRD-PARTY Defendant.
MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on the Summary Judgment Motion of Defendant, Cattron-Theimeg, Inc. ("Cattron") [DN 53]. Also before the Court is the Summary Judgment Motion of Third-Party Defendant, Alcan Primary Products Corporation ("Alcan") [DN 55]. Fully briefed, this matter is ripe for decision. For the following reasons, Cattron's summary judgment motion is GRANTED in part and DENIED in part. Alcan's summary judgment motion is GRANTED.
On April 6, 2008, Plaintiff Michael Gerhardt was employed by Alcan. He worked as a caster-furnace man and overhead crane operator at Alcan's aluminum smelting plant in Robards, Kentucky. (Compl. [DN 1-2] ¶ 3.) On this date, Mr. Gerhardt was operating an overhead crane, the movement of which was controlled by a radio remote control device he wore by a harness around his neck. The device was manufactured by Cattron. (Id. ¶ 4; Michael Gerhardt Dep. [DN 63-2] 60-61.) Mr. Gerhardt was operating the crane to retrieve a 10-inch bottom block assembly, which weighed approximately10, 000 pounds. (See id. ¶ 4; CSHO Report [DN 64-9] 8.)
While attempting to attach a lifting device to the bottom block assembly, a motion lever on the radio remote control device was inadvertently engaged. This caused the crane to move the bottom block assembly toward Mr. Gerhardt, pinning him against a furnace. He was seriously injured. (Id. ¶¶ 4-5.) It is undisputed that since the accident, Alcan and its workers' compensation insurer, Liberty Mutual Insurance Company, have paid Mr. Gerhardt's medical expenses, as well as Kentucky workers' compensation benefits. (See Gerhardt Dep. [DN 55-6] 7.)
Mr. Gerhardt and his wife, Debra Gerhardt, filed this products liability action against Cattron in the Henderson Circuit Court, alleging that Mr. Gerhardt's injuries were caused by the radio remote control device's defective design. (Compl. [DN 1-2] ¶ 5.) Specifically, the Plaintiffs allege six causes of action: (1) strict liability for selling an unreasonably dangerous device; (2) negligence in selling an unreasonably dangerous device; (3) failure to give sufficient warnings as to the device's dangerous condition; (4) breach of the implied warranties of merchantability and fitness; (5) gross negligence; and (6) loss of consortium. (See generally id.) As to their defective design claims, the Plaintiffs argue that the radio remote control device was defective because it did not include an engaged, functioning push-to-operate ("PTO") bar switch and because its "lever bar guard" offered inadequate protection from inadvertent contact with the motion levers.
Cattron removed the Plaintiffs' action to this Court based on diversity jurisdiction. (Not. of Removal [DN 1].) Thereafter, Cattron filed a third-party complaint against Alcan and Alcan filed an intervening complaint against Cattron. (See Third-Party Compl. [DN 16]; Inter. Compl. [DN 36].) In its third-party complaint against Alcan, Cattron asserts indemnification and contribution claims. Alternatively, Cattron asserts that it is entitled to an allocation of fault or apportionment. (Third-Party Compl. [DN 16].) In its intervening complaint against Cattron, Alcan seeks recovery of "all compensation, medical, income, rehabilitation and other benefits paid or payable to or on behalf of the Plaintiff, Michael Gerhardt, from the defendant." (Inter. Compl. [DN 36] 2.)
On February 11, 2013, both Cattron and Alcan filed summary judgment motions. Cattron argues that under Kentucky law, it is not liable to the Plaintiffs because: (1) it manufactured the radio remote control device according to the design specifications required by Alcan; and (2) the lever bar guard was state-of-the-art when sold and there is no evidence of a feasible alternative design. (See Mem. in Supp. of Mot. for Summ. J. [DN 53-1] 2.) Alcan argues that it is entitled to summary judgment on Cattron's third-party complaint because: (1) the protections afforded by Kentucky workers' compensation statutes preclude Cattron from seeking indemnification; and (2) under the facts of this case, Cattron is not entitled to contractual indemnification. (See Mem. of Law in Supp. of Mot. [DN 55-1] 8-9.) The Court will consider the parties' motions below.
II. STANDARD OF REVIEW
Before the Court may grant a summary judgment motion, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). The Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson , 477 U.S. at 252.
III. CATTRON'S MOTION FOR SUMMARY JUDGMENT [DN 53]
The Court will first consider the parties' arguments related to the Plaintiffs' claims of strict liability for selling an unreasonably dangerous device, negligence in selling such a device, and failure to give sufficient warnings as to the device's dangerous condition. The Court will then consider the parties' arguments related to the Plaintiffs' claims of breach of the warranties of merchantability and fitness, gross negligence, and loss of consortium.
A. COUNTS I, II, AND III: STRICT LIABILITY, NEGLIGENCE, AND FAILURE TO WARN
In Counts I, II, and III of their Complaint, Plaintiffs allege that Cattron sold a defectively designed, unreasonably dangerous device with insufficient warnings. (Compl. [DN 1-2] ¶¶ 5-21.) Specifically, Plaintiffs allege that the remote control device was defectively designed because it did not include an engaged PTO bar switch and because the lever bar guard offered inadequate protection from inadvertent contact with the motion levers. In its summary judgment motion, Cattron contends that Plaintiffs' claims must be dismissed since: (1) it manufactured the device in accord with the design specifications required by Alcan; and (2) the lever bar guard was state-of-the-art when sold and there is no evidence of a feasible alternative design. For the following reasons, Cattron's summary judgment motion is DENIED in part as to Plaintiffs' strict liability and negligence claims. It is GRANTED in part as to Plaintiffs' failure-to-warn claim.
PTO Bar Switch. In his position as an overhead crane operator for Alcan, Mr. Gerhardt used radio remote control devices to operate overhead cranes. In his deposition, he stated that he had done so daily on the job since 1979. (See Gerhardt Dep. [DN 54-1] 50-53.) At one point in time, Alcan's employees used devices that were manufactured by Telemotive. However, Alcan subsequently purchased Cattron devices. (See Mike Deal Dep. [DN 54-8] 12, 31.) In 2003, initial Cattron devices were shipped to Alcan, equipped with engaged PTO bar switches. (Id. at 30-31.)
A PTO bar switch essentially requires a crane operator to maintain contact on the switch at all times for the various motion lever switches to transmit movement signals to the overhead crane. (Robert Aiken Dep. [DN 54-4] 25-27.) In other words, a PTO bar switch forces a crane operator to take two actions before an overhead crane will move: first, the operator must activate the PTO bar switch by ensuring that it is in the "on" position; and second, the operator must manipulate the motion levers. A PTO bar switch electronically disconnects all motions when it is released, thus stopping the motion levers from transmitting any movement signals. (Id.)
Several of the overhead crane operators at Alcan did not like the PTO bar switch feature that was incorporated into the initial Cattron devices. They thought they "lost communication" with the crane on releasing the PTO bar switch. The operators believed that lost communication was dangerous since it could cause molten metal carried by the crane to slosh around. (See Deal Dep. [DN 54-8] 33-37, 41-42; Richard Cocco Dep. [DN 54-2] 44, 54-55; Marvin Eyre Dep. [DN 54-9] 13-18; John Golden Dep. [DN 54-10] 34-38; Allan Salsbury Dep. [DN 54-3] 13-14.) Many of the operators began using O-rings or rubber bands to hold the PTO bar switches in the "on, " activated position. (See Salsbury Dep. [DN 54-3] 14; Golden Dep. [DN 54-10] 34.)
When Alcan's safety personnel noticed this practice, a series of meetings convened to determine whether the PTO bar switch was a feature that Alcan wanted its radio remote control devices to have. As a result of these meetings, Alcan concluded that having an engaged PTO bar switch created a greater hazard than not having it. Alcan decided to ask Cattron to retrofit the devices by disengaging the PTO bar switches. (See Cocco Dep. [DN 54-2] 20, 43-44; Golden Dep. [DN 54-10] 48-59.) Alcan submitted a final purchase order containing this request. (See Purchase Order [DN 53-4].) Cattron complied with this order.
Cattron now argues that under Kentucky law, it is not liable for Mr. Gerhardt's injuries since it manufactured the radio remote control device according to Alcan's design specifications. In support, Cattron relies on McCabe Powers Body Co. v. Sharp , 594 S.W.2d 592 (Ky. 1980). In that case, a manufacturer constructed an aerial boom in accord with its buyer's specifications, designing the bucket on the boom to have one open side. The buyer's employee later fell through that side, falling 15 to 17 feet to the ground and receiving serious injuries. The employee sued the manufacturer, asserting strict liability and negligence for the bucket's deficient design. Id. at 593.
The Kentucky Supreme Court began by noting that "when the claim asserted is against a manufacturer for deficient design of its product the distinction between the so-called strict liability principle and negligence is of no practical significance so far as the standard of conduct required of the defendant is concerned. In either event the standard required is reasonable care." Id. at 594. It then addressed the issue of the manufacturer's liability for designing the product in line with the buyer's specifications. The Court concluded as follows:
[O]rdinarily where a product is manufactured according to plans and specifications furnished by the buyer and the alleged defect is open and obvious, the manufacturer is protected from liability for injuries occasioned by use of the product.
In arriving at this conclusion we recognize that plans and specifications furnished by a buyer could contain design defects so extraordinarily dangerous that a product manufacturer should decline to produce or, if appropriate, issue warnings as to the use of the product. We do not see this circumstance in the bucket manufactured by McCabe.
Id. at 595. In support of its decision, the Court relied on the Sixth Circuit's opinion in Garrison v. Rohm & Haas Co. , 492 F.2d 346, 351 (6th Cir. 1974). In that case, the Sixth Circuit refused to hold a manufacturer liable for defective design when it designed a product according to a buyer's specifications. The Sixth Circuit noted that imposing liability in such cases "would amount ...