Opinion
Case No. 2:99-CV-98
May 1, 2001
OPINION
Plaintiff, Vigilant Insurance Company ("Vigilant"), as subrogee of its insured, Scanlan Communications ("Scanlan"), has sued Defendants, Central Tower, Inc. ("Central") and Nupla Corporation ("Nupla") alleging claims for negligence, breach of contract, breach of express warranty, and breach of implied warranty. Vigilant's claims arise out of the collapse of a portion of a television transmission tower owned by Scanlan. Central designed and constructed the tower using insulator rods manufactured by Nupla. Now before the Court are Central's motion for summary judgment and Nupla's motion for summary judgment. Also before the Court is Vigilant's motion to adjourn trial. Facts
Scanlan is engaged in the business of television broadcasting in and around the Calumet, Michigan area. On March 29, 1996, Scanlan and Central entered into a contract pursuant to which Central agreed to build a transmission tower for Scanlan. The contract specified that the 500 foot tower would be guyed at the 100, 200, 300, 380, and 440 foot elevations, with three insulator rods at the 440 foot guy elevation. The tower was to be built to meet ANSI/EIA-222-E Standard to withstand a wind speed of 70 miles per hour with one-half inch of ice. After the parties entered into the contract, Central ordered the fiberglass insulator rods from Nupla. Pursuant to Central's request, Nupla supplied 6, 38-foot insulator rods with a minimum tensile breaking strength of 42,000 lbs. and 3 20-foot insulator rods with a minimum tensile breaking strength of 56,000 lbs. The 20-foot insulator rods were attached to the tower at the 440 foot level. Central completed construction of the tower by the end of October 1996.
Sometime during the morning hours of February 6, 1997, the top portion of the tower held by the guy wires at the 440 foot level collapsed and fell to the ground. At the time of the collapse there were several feet of snow on the ground and there were moderate wind conditions. Following the collapse, Scanlan notified Vigilant (then apparently known as Chubb Insurance) of the loss and Vigilant commenced an investigation of the cause of the collapse. Vigilant engaged Adjusting Services Unlimited, Inc. ("ASU") to adjust the claim. ASU initially determined that the cause of the collapse was unknown but believed that failure of one of the insulator rods may have been the cause. (Letter from Saxton to Billops of 2/12/99, Def. Central's Br. Supp. Ex. 8.) To assist in the investigation, ASU retained an engineer named George Kiiskila ("Kiiskila") to inspect the damage "both with a view towards determining if coverage [was] afforded and if so as to whether [Vigilant] would have subrogation against" Central or Nupla. (Id.) After examining the tower and the insulator rods, Kiiskila concluded that an insulator rod failed, causing the tower to fall. (Letter from Kiiskila to Saxton of 3/13/97, Pl.'s Br. Resp. Def. Central's Mot. Ex. 6.) However, Kiiskila was unable to determine why the insulator rod failed. (Letter from Kiiskila to Saxon of 4/21/97, Def. Central's Br. Supp. Ex. 9.)
Central states in its brief that the weather "was blizzard like, with strong winds." (Def. Central's Br. Supp. at 2.) Central relies on the testimony of Dallas Bond, a Scanlan employee, who arrived at the tower location by snowshoe at 5:00 a.m. on February 6. A review of Bond's testimony reveals that Central's characterization of the testimony is misleading. Bond testified that "[w]e'd had some windy conditions overnight, nothing phenomenal or anything; drifting snow — blowing and drifting snow." (Bond Dep. at 13, Def. Central's Br. Supp. Ex. 11.) In addition, Vigilant has presented evidence suggesting that wind conditions at the tower were not severe. (U.S. Dep't of Commerce Nat. Climatic Data Ctr. Certification, Pl.'s Br. Resp. Def. Central's Mot. Ex. 8.) Regardless, as explained above, any dispute over wind speed on the date of the incident is not material for purposes of the instant motions.
Vigilant ultimately paid Scanlan $578,367.79 for the loss and became subrogated to Scanlan's rights. Vigilant thereafter filed this suit against Central and Nupla seeking to recover the amount it paid to Scanlan for the loss.
Motion Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S.Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S.Ct. at 2511 (citing Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)).
A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with "concrete evidence" that there is a genuine issue of material fact for trial. Id.; Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
Discussion
Defendants contend that they are entitled to summary judgment because Plaintiff cannot establish a manufacturing defect in the fiberglass insulator rod or that the actions or inactions of Defendants caused the tower to collapse. Both Defendants rely exclusively on the deposition testimony of Plaintiff's expert, George Kiiskila, to establish the absence of a genuine issue of material fact. Central relies on the following testimony by Kiiskila to show that Vigilant has no evidence that Central built the tower using a faulty design, defective construction, or defective materials:
Q All right. Now, sir, your opinion is that the tower section failure was caused by a direct tension failure of the fiberglass insulator rod portion; correct?
A Correct.
Q All right. Yet you have no idea of what caused that failure; correct?
A I don't know why the rod itself failed in tension, no.
Q All right. You have no evidence whatsoever that there was anything that Central Tower did that caused that failure, do you?
A No.
Q And you have no evidence whatsoever there was anything wrong with the design, the construction or materials used by Central Tower which caused the collapse?
A No.
Q In fact, you have no evidence that any ANSI standards, rules, regulations or anything was wrong or not followed relative to the design, construction or materials?
A Yes.
Q "Yes," that's true, you have —
A Correct; true.
Q — no evidence?
A No evidence.
. . . .
Q All right. And you found nothing wrong with the steel at the side, did you?
A Other — oh, as far as why the tower failed?
Q Correct.
A Correct.
. . . .
Q And you have no evidence whatsoever as to the causes why that rod pulled apart?
A No.
Q And, in fact, you have no evidence whatsoever that Central Tower, Inc. did anything wrong or anything to contribute to that failure, do you?
A No.
(Kiiskila Dep. at 38-40, Def. Central's Br. Supp. Ex. 12.) Nupla also contends that Kiiskila's testimony supports its motion. Kiiskila admitted that he did not know why the insulator rod failed. (Id. at 15, Def. Nupla's Br. Supp. Ex. E.) Kiiskila also admitted that he did not conduct any investigation with regard to the wind load capacity of the tower, the material used to construct the insulator rod, the installation of the insulator rod, or other possible causes of the collapse. (Id. at 17, 18, 20-21, 23.)
In order to succeed on a products liability case under Michigan law, whether on a negligence or breach of warranty theory, a plaintiff must prove a defect in the product attributable to the manufacturer or seller and a causal connection between the defect and the injury or damage of which the plaintiff complains. Kupkowski v. Avis Ford, Inc., 395 Mich. 155, 160-61, 235 N.W.2d 324, 327-28 (1975) (citing Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975)); Cassette v. General Motors Corp., 73 Mich. App. 225, 227-28, 251 N.W.2d 275, 277 (1977). A plaintiff need not produce evidence that positively excludes every other possible cause. Skinner v. Square D Co., 195 Mich. App. 664, 667, 491 N.W.2d 648, 650 (1992). Furthermore, a plaintiff may meet his burden of establishing a defect attributable to the manufacturer by presenting either direct or circumstantial evidence. See Holloway v. General Motors Corp., 403 Mich. 614, 621, 271 N.W.2d 777, 780 (1978). "However, where the evidence establishes two or more equally plausible causes for the injury, the selection by the jury of one of the causes would not be based upon a reasonable inference but rather would be based upon mere conjecture." Chambers v. General Motors Corp., 123 Mich. App. 619, 621, 333 N.W.2d 9, 10 (1982) (per curiam).
In this case, Vigilant's expert, Kiiskila, testified that the tower collapsed because of tension failure of the fiberglass insulator rod manufactured by Nupla. However, Kiiskila admitted that he did not know why the insulator rod failed and could not identify a specific manufacturing defect. Kiiskila also admitted that he could not point to any act or omission by Central in the design, construction, or use of materials, that caused the tower to collapse. Furthermore, Vigilant has not presented any evidence showing that the insulator rod did not meet the design specifications for the tower or that the rod could not withstand the required wind load.
Vigilant does not allege that the insulator rod had a design defect.
Vigilant argues that it has produced sufficient evidence from which a jury could conclude the existence of a defect and causation because Central promised that the tower would withstand wind speeds of 70 mph and Vigilant has produced evidence that the wind speed on the night in question was far less than 70 mph. To accept Vigilant's argument, however, the Court would be required to permit a jury to engage in speculation and conjecture because there is no expert testimony or other evidence tending to show that wind speed had any bearing on the collapse of the tower. See Austin v. Mitsubishi Elecs. of Am., Inc., 966 F. Supp. 506, 509 (E.D.Mich. 1997) (concluding that because the plaintiff's own experts were unable to present any circumstantial evidence that the fire originated in the television set there was no basis for a reasonable inference of a defect); Kupkowski, 395 Mich. at 165, 235 N.W.3d at 330 (stating "[i]n the instant case, no testimony, expert or otherwise, was offered to show the nature of the defect which might have caused the brake failure").
Vigilant contends that in spite of the lack of evidence of a specific defect, it would be proper for a jury to infer the existence of a defect attributable Defendants in this case. In support of that argument, Vigilant relies upon the "malfunction inference" most often applied in automobile cases. In Snider v. Bob Thibodeau Ford, Inc., 42 Mich. App. 708, 202 N.W.2d 727 (1972), the brakes on the plaintiff's new Ford truck failed and he crashed into a tree. The evidence at trial showed that the brakes on the truck had been serviced on several occasions within a few months after the plaintiff purchased it and that the last service visit occurred two days prior to the accident. During the last service visit, a representative of Ford advised the dealer's service manager that the brakes on the truck were inadequate for the plaintiff's particular use of the truck. Other than evidence showing that the brakes did not work as they should have, there was no evidence of a specific defect. Nonetheless, the court observed that under those circumstances a plaintiff may prove a claim because "the legal conclusion that a product is defective may follow from circumstantial evidence without the need physically to exhibit the loose bolt or structural weakness." Id. at 713, 202 N.W.2d at 730. The court found the plaintiff's evidence sufficient to demonstrate a defect attributable to the defendants, stating:
The rule on conjectural cause does not preclude the establishment of a products liability claim with circumstantial evidence. The numerous and continuing problems and the description by Ford's representative of the brake system as inadequate bespeak problems stemming from manufacture or design or — as Ford contends — misuse, rather than maintenance, factors not present in a sudden isolated failure. . . . Snider's theory here does have `selective application' to a defective braking system as the cause of the accident.Id. at 717, 202 N.W.2d at 732 (footnotes omitted). In its discussion, the court distinguished its earlier decision in Meli v. General Motors Corp., 37 Mich. App. 514, 195 N.W.2d 85 (1972). See Snider, 42 Mich. App. at 717, 202 N.W.2d at 732. In Meli, the plaintiff's car hit a tree when the accelerator became stuck. The evidence showed that the accelerator spring was knocked off rather then broken, and there was no evidence of a mechanical failure. The plaintiff's expert admitted that he could not tell whether the accelerator spring (which he did not examine) was broken or knocked off at the time of the accident, but only that it was not connected. The court held that the evidence was insufficient to establish a defect attributable to the manufacturer because there was no evidence showing how the spring became disconnected. Thus, the court reasoned, a verdict in favor of the plaintiff would be based upon mere conjecture. Meli, 37 Mich. App. at 518, 195 N.W.2d at 88. The court observed:
We are not confronted here with an enclosed part such as a brake mechanism or a fuel pump where it could logically be inferred that any defect was present when the automobile left the manufacturer. In cases where the defect is more or less in a `sealed package', it is more plausible to believe that the defect was caused by the manufacturer than to believe that the package was opened after sale, the defect caused independently, and then the package resealed. See Pattinson v. Coca-Cola Bottling Co. of Port Huron, 333 Mich. 253, 52 N.W.2d 688 (1952); Sharp v. Chrysler Corp., 432 S.W.2d 131 (Tex.Civ.App. 1968).
Here, however, we are dealing with an exposed part. The engine had been serviced several times. It is, therefore, just as likely that the spring was disconnected independently as it is that it was disconnected through some defect in the manufacture. Therefore, since there was no evidence to remove the plaintiffs' theory from the realm of conjecture, the trial court properly directed the verdict in defendant's favor.Id. at 519-20, 195 N.W.2d 88. See also Chambers, 123 Mich. App. at 622, 333 N.W.2d at 10 (stating that "[i]f the part alleged to be defective is relatively inaccessible and is not generally required to be repaired or maintained, it may be reasonable to infer that the defect is attributable to the manufacturer" but "where the part alleged to be defective is accessible to other sources of interference and, under the circumstances of the case, two or more equally plausible explanations of the defect are reasonable, then a finding of manufacturer liability would be based upon conjecture").
The facts in this case are more analogous to those in Meli than to those in Snider or cases allowing the existence of a defect to be inferred where the allegedly defective part is inaccessible to persons other than the manufacturer. Central completed construction of the tower in late October, and the tower functioned properly for three months, while being exposed to the wind and other elements. Furthermore, during that time, the cable and fiberglass insulator rod was not inaccessible, but rather was exposed to a number of potential forces that could have caused the tower to collapse. Moreover, Vigilant has not presented any expert testimony establishing a defect or even a possible cause of a defect in the manufacture of the insulator rod itself or in the design or construction of the tower and, unlike Snider, there is no evidence of a recent history of a problem with the tower to support a reasonable inference that the collapse must have been caused by a defect attributable to either Nupla or Central. Therefore, on the record before the Court, any finding of a defect by a jury would have to be based upon mere speculation or conjecture, which is not permitted under Michigan law.
Vigilant also contends that it can establish liability through the doctrine of res ipsa loquitur. That doctrine has no application on these facts. A plaintiff seeking to rely on that doctrine must demonstrate that the "agency or instrumentality [was] within the exclusive control of the defendant." Cloverleaf Car Co. v. Phillips Petroleum Co., 213 Mich. App. 186, 194, 540 N.W.2d 297, 302 (1995) (citing Jones v. Porretta, 428 Mich. 132, 150-51, 405 N.W.2d 863, 872 (1987)). Because Central had completed its work on the tower several months earlier, the tower was not within Defendants' exclusive control at the time of the incident.
Finally, Vigilant has attempted to support its case with the expert opinion of John G. Williams. Vigilant did not disclose Williams as an expert until after the close of discovery and after Defendants filed their motions for summary judgment. Due to Vigilant's delay, it would be unfair and prejudicial to Defendants for this Court to consider Williams' opinion. Moreover, the Court notes that on April 20, 2001, Magistrate Judge Greeley entered an order striking Vigilant's amended witness list adding Williams as a witness. Therefore, the Court excludes Williams' opinion from its consideration of the instant motions.
Conclusion
For the foregoing reasons, the Court will grant Defendants' motions for summary judgment.
An Order consistent with this Opinion will be entered.
ORDER
In accordance with the Opinion filed this date,
IT IS HEREBY ORDERED that Defendant Central Tower, Inc.'s Motion for Summary Judgment (docket no. 51) and Defendant Nupla Corporation's Motion for Summary Judgment (docket no. 52) are GRANTED. Defendant Central Tower's cross-claim against Nupla is DISMISSED.
IT IS FURTHER ORDERED that Plaintiff's Motion to Adjourn Trial (docket no. 75) is DENIED.
This case is closed.