Opinion
89-852.
December 7, 1990. Rehearing Denied February 8, 1991.
Appeal from the Circuit Court of Blount County, No. CV-88-060, Robert Austin, J.
Robert B. Roden of Roden Hayes, Birmingham, for appellant.
De Martenson and Prisca M. DeLeonardo of Huie, Fernambucq Stewart, Birmingham, for appellee Courtesy Ford Sales, Inc.
Harlan I. Prater IV and Jere F. White, Jr. of Lightfoot, Franklin, White Lucas, Birmingham, and Gary L. Hayden and John M. Thomas, Gen. Counsel, for appellee Ford Motor Co.
The Court finds that there was substantial evidence to make the issue of the government contractor defense a question for a jury to resolve. Therefore, the defendants' summary judgment based on that defense is reversed on the authority of Pietz v. Orthopedic Equipment Co., 562 So.2d 152 (Ala. 1989), cert. denied, ___ U.S. ___, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990), and this cause is remanded for further proceedings.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, SHORES and ADAMS, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
I continue to think that the majority misapplied the government contractor defense in Pietz v. Orthopedic Equipment Co., 562 So.2d 152 (Ala. 1989), and that the facts in Pietz showed that, as a matter of law, the defendant there met the test in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), and was therefore entitled to a summary judgment. The facts in this case are indistinguishable from those in Pietz; in both cases, all of the elements of the Boyle test were met: (1) the government agency provided reasonably precise specifications; (2) the equipment conformed to the specifications; and (3) the supplier did not need to warn the government of dangers in the use of the equipment because the government had equal, or greater, knowledge of those dangers.
Because I think that, under the government contractor defense, the defendants here were entitled to a judgment as a matter of law, I must dissent.
STEAGALL, J., concurs.
I dissent. I concurred with the majority in Pietz v. Orthopedic Equipment Co., 562 So.2d 152 (Ala. 1989), because I felt that there were genuine issues of material fact as to whether the government contractor defense was applicable in that case. Therefore, I felt that it was the function of the jury, not the trial court on a motion for summary judgment, to determine "whether the facts establish[ed] the condition for the utilization of the defense" by Orthopedic Equipment Company, 562 So.2d at 156. The material facts in this case, however, are undisputed. The State received the exact product that it ordered. The State not only approved detailed specifications for the dump truck, but actually decided what those specifications were to be. The product Ford furnished to the State conformed exactly to those specifications. There are no genuine issues of material fact as to whether the government contractor defense is applicable. It is. Therefore, I dissent, because I would affirm the trial court's judgment.