Heinrich v. Master Craft Engineering, Inc. et al

Filing 128

ORDER. ORDERED that Master Craft's Motion for Summary Judgment 101 and Jegs Motion for Partial Summary Judgment Regarding Plaintiffs Pursuit ofExemplary Damages and Regarding Plaintiff's Negligence Claim 102 are DENIED. ORDERED that plaintiffs Motion for Partial Summary Judgment 103 is GRANTED in part and DENIED in part as indicated in this order. Entered by Judge Philip A. Brimmer on 09/18/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01899-PAB-GPG
ERIC A. HEINRICH,
Plaintiff,
v.
MASTER CRAFT ENGINEERING, INC., a Michigan corporation,
AUTO CENTER MANUFACTURING CO., a Florida corporation,
AUTOCRAFT MANUFACTURING CO., INC., a Florida corporation, and
JEG’S AUTOMOTIVE, INC., an Ohio corporation, a/k/a JEG’S, JEGS, JEG’S High
Performance and JEGS High Performance,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Summary Judgment [Docket
No. 101] filed by defendant Master Craft Engineering, Inc. (“Master Craft”), the Motion
for Partial Summary Judgment Regarding Plaintiff’s Pursuit of Exemplary Damages and
Regarding Plaintiff’s Negligence Claim [Docket No. 102] filed by defendant JEG’s
Automotive, Inc. (“Jeg’s”) and the Motion for Partial Summary Judgment [Docket No.
103] filed by plaintiff Eric Heinrich.
I. BACKGROUND1
On July 30, 2011, plaintiff attended a drag race at the Western Colorado
Dragway in Mesa County, Colorado (the “Dragway”). Docket No. 111-1 at 1, ¶ 2. Drag
racing events at the Dragway are sanctioned by the National Hot Rod Association
1

The following facts are undisputed by the relevant parties unless otherwise
indicated.

(“NHRA”). Docket No. 101 at 4, ¶ 2. That evening plaintiff was providing mechanic
services and assistance to one of the drivers. Docket No. 111-4 at 1, ¶ 4. W hile
standing near the drag race tracks, plaintiff was struck in the leg by a piece of metal
from a nearby 1986 Chevrolet S10 race vehicle driven by Ethan Savoya. Docket No.
111-1 at 2, ¶¶ 7-14. He suffered severe injuries and was hospitalized as a result. Id. at
2, ¶¶ 9-12. Plaintiff alleges that the welds securing the balance weight to the flexplate
(the “balance weight welds”) were defective.
The piece of metal that struck plaintiff was a balance weight from an externally
balanced flexplate (the “flexplate”). A flexplate is a steel disk, to which an outer ring
gear has been welded, that mounts between the engine crankshaft and the automatic
transmission converter. Docket No. 102 at 3, ¶¶ 2-3. Flexplates are designed to,
among other things, connect the transmission torque converter and the engine as well
as balance engine vibrations. Docket No. 101 at 1 n.1; Docket No. 111-5 at 4, p. 24:13; see, e.g., Docket No. 101-5. Externally balanced flexplates have a balance weight
welded on one side of the flexplate, Docket No. 101 at 1 n.1; see, e.g. Docket No. 1015, whereas internally balanced flexplates do not.
The SFI Foundation (“SFI”) is a testing body for the performance automobile
industry. Docket No. 111-11 at 8, pp. 214:20-215:12; Docket No. 102 at 4, ¶ 4. SFI
establishes quality standards and conducts tests on flexplates and other motor vehicle
parts that are used in racing. Docket No. 111 at 5, ¶ 26. The SFI standard for
flexplates used in race vehicles is SFI Spec 29.1. Docket No. 111-11 at 8, p. 215:1323; Docket No. 101 at 2 n.2; Docket No. 102 at 4, ¶ 5. SFI does not test the integ rity of
balance weight welds. Docket No. 102 at 4, ¶ 6. Manufacturers submit representative
2

samples of flexplates to SFI for testing and, if the flexplates pass SFI’s tests, SFI issues
decals to the manufacturer to affix to its flexplates. Docket No. 102 at 4, ¶¶ 6-7.
Externally balanced flexplates make up approximately half of the flexplates used in drag
racing. Docket No. 102 at 5, ¶ 11. The NHRA has adopted SFI standards and requires
vehicles running in sanctioned drag racing events to undergo an inspection to ensure
that certain parts, including flexplates, carry valid SFI certifications. Docket No. 101 at
4, ¶ 3. Inspectors examine the flexplates installed in each vehicle for an SFI
certification sticker and a valid date stamp. Id. at 4, ¶ 5. All vehicles that race at the
Dragway are required to undergo such an inspection. Id. at 4, ¶ 4. If a race vehicle
does not have an SFI certification sticker on its flexplate, the car will not be permitted to
race at the facility. Id. at 4, ¶ 6. Docket No. 101-3 at 2, p. 88:18-20.
On the day of the incident, Mr. Savoya’s vehicle was inspected to verify that he
had an SFI certified flexplate as required for vehicles, such as Mr. Savoya’s, attempting
to run a quarter mile in 9.99 seconds or less. Docket No. 101 at 4-5, ¶¶ 8-9, 13; Docket
No. 101-4 at 8, p. 62:10-18; id. at 4, p. 32:2-21. 2 The flexplate had an SFI certification
sticker and Mr. Savoya’s race vehicle otherwise passed inspection. Docket No. 101 at
5, ¶ 10.

2

Jeg’s argues that, because Mr. Savoya’s vehicle did not actually succeed in
running the quarter mile in less than ten seconds, SFI certification was not required.
Docket No. 102 at 7, ¶ 24. Jeg’s does not, however, dispute that Mr. Savoya was
attempting to run the quarter mile in less than ten seconds or dispute the f act that
vehicles without appropriate SFI certification stickers are not permitted to race at the
Dragway. Docket No. 101 at 4, ¶ 6.
3

A. Manufacture and Distribution
1. Master Craft and Autocraft
Master Craft manufactured flexplates for defendants Autocraft Manufacturing
Company, Inc. and Autocraft Manufacturing Company (collectively, “Autocraft”) from
1981 until 2014. Docket No. 111 at 6, ¶ 32; Docket No. 103 at 5, ¶ 5. Master Craf t
knew that Autocraft was a wholesaler of autoparts, but did not know who Autocraft’s
customers were. Docket No. 111 at 7, ¶ 35; Docket No. 122 at 6, ¶ 36. Model 3877
flexplates, the model at issue, were meant for installation and use in a Chevrolet 454
cubic inch, big block engine. Docket No. 111 at 4, ¶ 19; Docket No. 122 at 4, ¶ 19. 3 In
the eight years before June 2012, Master Craft manufactured 17,000 flexplates, 9000
of which were model 3877 flexplates. Id.; Docket No. 122 at 5, ¶ 32. All of the
flexplates Master Craft manufactured were sold to Autocraft, Docket No. 111 at 4, ¶ 21,
and Master Craft was Autocraft’s sole supplier of flexplates. Docket No. 103 at 5, ¶¶ 67.
In 1988, Master Craft advised Autocraft that it had not manufactured and would
not manufacture parts for high performance or racing vehicles. Docket No. 101 at 4,
¶ 1; Docket No. 101-1. Since at least 1995, at Autocraf t’s direction, all flexplates
Master Craft manufactured for Autocraft were stamped with the words “NON SFI” in the

3

Master Craft admits that it manufactured a flexplate model that could be
installed in a Chevy 454 big block engine. Docket No. 122 at 4, ¶ 19. However, it is
somewhat unclear whether Master Craft knew what engine model 3877 flexplates were
designed to fit. Master Craft’s owner and Fed. R. Civ. P. 30(b)(6) witness James
Haswell testified that, although he did not know precisely what vehicle the flexplate
model was designed for, he could have determined such a fact with minimal effort.
Docket No. 111-5 at 19, pp. 254:21-255:17.
4

metal of the flexplate itself. Docket No. 111 at 5, ¶ 25; Docket No. 111-5 at 12, p.
147:7-20. Mr. Haswell testified that the purpose of such a stamp was to “let my
customer know, Autocraft and anybody else who gets their hands on that flexplate, that
it’s not SFI foundation approved.” Docket No. 111-5 at 12, p. 145:21-24; see also
Docket No. 111 at 6, ¶ 28. He also testified that model 3877 flexplates were intended
to be sold in the “muscle car market,” which he defined as “an average avid mechanic
building his car in the garage” to increase horsepower. Docket No. 111-5 at 23-24, pp.
276:21-277:6.
The parties do not dispute that Autocraf t paid for tools and dies 4 that Master
Craft used to manufacturer externally balanced flexplates. Docket No. 103 at 5-6, ¶¶ 89. Plaintiff and Autocraft do not agree on the question of how much direction Autocraft
provided Master Craft in the manufacture of model 3877 flexplates. Plaintiff asserts
that Autocraft directed Mastercraft to reverse engineer a flexplate made by an original
equipment manufacturer (“OEM”) and that Autocraft directed to Master Craft to add
additional features. Docket No. 103 at 6, ¶ 10. In an interrog atory response, Autocraft
states that the flexplates it purchased from Master Craft were reverse engineered, and
that the reverse engineering process is “refined often through verbal negotiations and
discussions when samples are fabricated.” Docket No. 103-9 at 3. Autocraft further
states that it requested that Master Craft incorporate features in addition to the OEM
specifications, including extra tack and spot welds on the balance weights, stamping the
words NON SFI and “made in the USA” on the flexplate, zinc dichromate coating, and
4

Tools and dies refer to casts or molds that a manufacturer would use to form a
part. Docket No. 109 at 3 n.2.
5

thicker metal as compared to an OEM flexplate. Id. It is, however, unclear when and
on how many occasions Autocraft requested that Master Craft perform additional
welding on the balance weights. Autocraft admits that, in October 2011, after the injury
to plaintiff, it made such a request. Docket No. 103-9 at 9. And plaintiff cites a letter
dated November 23, 1988 (the “November 1988 letter”) from Master Craft to Autocraft
that refers to “guidelines set forth by [Autocraft],” and states that the “[b]alancing
weights are not only resistance welded but are also mig welded for better holding power
of these weights.” Docket No. 103-12. 5 However, Mr. Haswell also testified that,
between 2004 and October 2011, the balance w eights were not spot welded. Docket
No. 109-1 at 12-13, pp. 70:1-71:10. Mr. Haswell testified that Master Craft
manufactured the flexplate according to specifications provided by Autocraft, including
Autocraft’s request that Master Craft to use thicker material for the flexplate, weld both
sides of the ring gear, and use a different type of metal for the flexplate itself. Docket
No. 103-6 at 6-7, pp. 52:18-53:1; Id. at 7, p. 56:9-12; Id. at 12, p. 124:2-5. Mr. Haswell
testified that model 3877 flexplates were “heavy duty,” meaning that, unlike standard
flexplates, they were 20 thousandths of an inch thicker, welded on both sides, and
plated. Docket No. 111-5 at 10, p. 106:16-19.
In response, Autocraft asserts that, although it provided Master Craft with a
sample flexplate from which to reverse engineer the model 3877 flexplate and
requested customized features or guidelines for the flexplate, it “did not provide
5

MIG or arc welding is typically done by hand and uses wire to fuse two metals
together. Docket No. 111-5 at 6, p. 50:16-51:22. Spot w elding is a process by which
electricity fuses two metals together. Docket No. 109-1 at 13, p. 71:19-24. T he terms
“spot welding” and “resistance welding” refer to the same process. Id. at 14, p. 79:6-11.
6

technical ‘specifications’ to Master Craft.” Docket No. 109 at 4, ¶ 10; see also Docket
No. 103-8 at 3, p. 25:15-22 (stating that Autocraft provided guidelines, but not
specifications, for the flexplates it purchased). Rather, Master Craft’s employees
deduced the necessary technical specifications from the OEM flexplate. Docket No.
109 at 4, ¶ 10 (citing Docket No. 103-6 at 9, p. 88:2-4 (“Q. So how did you know the
specifications of what to build? How did your company know that? A. We cop[ied] an
OEM flywheel.”)). Autocraft disagrees with plaintiff’s characterization of the November
1988 letter, contending that it discusses “guidelines” for the flexplate, but not technical
specifications. Id.
The flexplate at issue was manufactured by Master Craft and bore a NON SFI
stamp when it left Master Craft’s facility. Docket No. 101 at 5, ¶ 14. Other than Jeg’s
placing an SFI certification sticker over that stamp, no other physical alterations were
made to the flexplate after it left Master Craft’s facility. Docket No. 111 at 7, ¶ 37.
Autocraft sold thousands of Master Craft flexplates to at least four different customers,
including Jeg’s. Docket No. 111 at 7, ¶ 36. Autocraft sold the flexplate at issue to
Jeg’s. Docket No. 111 at 5, ¶ 24.
2. Jeg’s6
Jeg’s is an auto parts distributor that purchased flexplates from Autocraft. Jeg’s
believed that Autocraft manufactured the flexplates it sold. Docket No. 108 at 9, ¶ 6.
Jeg’s admits that it is in the business of selling flexplates and that it sold the flexplate at
issue. Docket No. 103 at 11, ¶¶ 46-47. W hen Jeg’s received the flexplate from
6

Additional facts relevant to Jeg’s motion for partial summary judgment are set
forth below.
7

Autocraft, it bore the NON SFI stamp in the metal. Docket No. 111 at 5, ¶ 25.
Jeg’s submitted an internally balanced flexplate it purchased from Autocraft to
SFI for testing. Docket No. 102 at 6, ¶ 19. Jeg’s does not indicate what model of
flexplate it submitted to SFI.7 The internally balanced flexplate passed SFI’s 29.1
testing. Id. As a result, Jeg’s issued instructions to its employees to cover up the NON
SFI stamp on both internally and externally balanced flexplates with an SFI certification
sticker, which indicated that the flexplates were SFI certified. Docket No. 101 at 5,
¶ 14; Docket No. 102 at 7, ¶ 20. The flexplate itself and the SFI certification sticker did
not bear Jeg’s name, but the sticker stated, among other things, “This Manufacturer
Certifies That This Product Meets SFI SPEC 29.1.” Docket No. 103 at 9, ¶ 33; Docket
No. 108 at 6, ¶ 34; see also Docket No. 101-5. The words “This Manufacturer” on the
SFI sticker refers to Jeg’s. Docket No. 103 at 9, ¶ 34.
Jeg’s is listed on SFI’s website as a manufacturer of flexplates. Docket No. 103
at 10, ¶ 39. Flexplates identical to the one at issue are identif ied in Jeg’s catalog and
on Jeg’s website as a “Jeg[’s] product.” Id. at 9, ¶ 37; see also Docket No. 103-4 at 5
(“Jeg’s admits that the flexplate was identified in Jeg’s catalog as a Jeg’s flexplate.”).
Jeg’s advertises its Jeg’s brand products, including the flexplate, as “meticulously
engineered and manufactured to the highest quality standards to not only perform but
be long lasting and dependable.” Docket No. 103 at 10, ¶ 40; Docket No. 108 at 7,
¶ 40. Jeg’s Rule 30(b)(6) witness Richard Smith was asked whether this particular
7

Jeg’s expert witness states that Jeg’s part number 555-60155 is the externally
balanced flexplate at issue. Docket No. 102-1 at 2, ¶ 5. Jeg’s part number 555-60151
is an internally balanced flexplate and is the same as a part number 555-60155
flexplate, but without a balance weight. Id. at 3, ¶ 8.
8

statement implies that parts sold under the Jeg’s brand are manufactured by Jeg’s and
stated, “You can read anything in it you want, but this to me is typical advertising fluff”
and denied knowing whether internal discussions occurred as to the inaccuracy of this
statement. Docket No. 103-13 at 14, p. 257:18-22; id. at 14, p. 259:16-22. Mr. Smith
also testified:
Q And in your opinion, a consumer reading this does not have the
understanding that Jeg’s manufactures this – these products that are listed
as Jeg’s performance products?
A Some may and some may not. There’s people that know, you know,
where products come from and who’s – and who is the manufacturer, and
sometimes, you know, they would interpret this as being Jeg’s parts. Not
everybody has the same outlook on reading what they see.
Q So circling back to earlier, the flexplates sold to Jeg’s by ACM have no
markings to identify a manufacturer, correct?
A Right.
Q There are no identifications on the catalog or on the Website as to the
actual manufacturer of the product, correct?
A Right
Q So how is a consumer reading this statement looking at the catalogs and
the Website for the flexplates sold by Jeg’s under the Jeg’s brand to
determine who’s the manufacturer?
A They would believe that Jeg’s is the manufacturer.
Id. at 14, pp. 259:24-260:22; see also id. at 10, p. 242:4-10.
Mr. Savoya ordered the flexplate from Jeg’s by phone. Docket No. 108-4 at 6,
p. 65:12-25. Mr. Savoya does not specifically recall viewing Jeg’s catalog or website
immediately prior to ordering the flexplate. Id. at 6-7, pp. 65:12-66:10. Mr. Savoya
testified that he believed Jeg’s to be a “parts house,” which he defined as “a parts retail
9

center. Q Okay. But not the manufacturer, correct? A Yes.” Id. at 3, p. 12:13-21.
Jeg’s argues that this testimony establishes that Mr. Savoya knew that Jeg’s did not
manufacture the flexplate. However, Mr. Savoya was later asked directly if he knew
who manufactured the flexplate when he purchased it and answered “No. . . . I mean,
Jeg’s could have made it for all I know. I don’t know who made it. I didn’t ask them.”
Docket No. 114-3 at 3, p. 86:13-19. W hen Mr. Savoya purchased the flexplate from
Jeg’s, he intended to purchase an SFI certified flexplate and would not have purchased
a flexplate that was not SFI certified. Docket No. 101 at 5, ¶¶ 11-12; Docket No. 101-4
at 5, p. 67:5-7; Id. 7, p. 87:3-4. The parties do not dispute that the flexplate was sent to
Mr. Savoya in a cardboard box labeled “Jeg’s,” which was inside a larger shipping box
labeled “Jeg’s.” Docket No. 103 at 10, ¶ 44; Docket No. 108 at 8, ¶ 44. Jeg ’s admits
that “it did not disclose to Mr. Savoya the identity of the actual manufacturer of the
Flexplate when it sold the Flexplate to Mr. Savoya.” Docket No. 108 at 8, ¶ 45. Mr.
Savoya installed the flexplate in his 1986 Chevy S10 race vehicle. Docket No. 111-2 at
2, pp. 9:1-12:6.
B. Expert Opinions
Plaintiff’s expert witness Joseph Skaggs opines that welds attaching the balance
weight to the flexplate were defective, in part, because the welds were out of position
and did not fully penetrate into the balance weight. Docket No. 111-16 at 4. Mr.
Skaggs further states that, although the maximum recommended engine speed for a
stock Chevrolet big block engine was 5500 RPM, the RPM range of Mr. Savoya’s race
vehicle was “4500 for burnout and 6000 RPM otherwise.” Id. at 5. Because the welds

10

failed within the maximum RPM range of 4500 RPM and because Master Craft should
have known that a big block Chevrolet engine would reach an RPM of at least 5500, the
flexplate “was unsuitable for use in any application.” Id. at 4-5. Mr. Skaggs also opined
that the welds did not fail as a result of fatigue. Id. at 9. He testified that defective
balance weight welds could have been discovered through a visual inspection. Docket
No. 106-6 at 2-3, pp. 40:23-41:25. Master Craf t’s expert witness Jesse Grantham
disputes that the welds were defective, opining that the welds attached to the flexplate
failed due to improper installation of the flexplate in the vehicle. Docket No. 102 at 8, ¶
29.
In July 2014, the flexplate underwent laboratory and metallographic testing.
Docket No. 111-17 at 2. Plaintiff’s expert witness Bastiaan Cornelissen, Ph.D, opined
that the balance weight “separated from the flexplate because the welds securing the
balance weight were not properly made” and that the “ultimate failure of the flexplate
occurred during a rev-limited burnout prior to a race, indicating that the small fused
areas of the welds failed progressively in a series of small overload events.” Id. at 5;
see also Docket No. 111-15 at 1 (“Weld fusion appears unsatisfactory on the
counterweight.”).8
C. Procedural History
On July 17, 2013, plaintiff filed this case. Docket No. 1. On June 2, 2014,
plaintiff filed his First Amended Complaint [Docket No. 64], which asserts claims for
strict products liability, negligence, and breach of warranty against all defendants. Id. at
8

The parties do not dispute the admissibility of the expert opinions provided in
support of or in response to the present motions.
11

18-27. Plaintiff also seeks exemplary damages against Autocraft and Jeg’s. Id. at 2829. On December 1, 2014, Master Craft, Jeg’s, and plaintiff filed the present motions
for summary judgment. Docket No. 101-103. No final pretrial order has been entered
in this case.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
However, when “the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary judgment stage by
identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the

12

burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir.1994)). “In applying this standard, we view all facts and
any reasonable inferences that might be drawn from them in the light most favorable to
the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th
Cir. 1994).
III. MASTER CRAFT’S MOTION FOR SUMMARY JUDGMENT
A. Causation
Master Craft argues that plaintiff’s claims against it fail for lack of causation.
Master Craft acknowledges that there is a dispute of fact as to whether the balance
weight welds were defective; however, Master Craft asserts that Jeg’s conduct caused
plaintiff’s injuries. Docket No. 101 at 8.
Colorado courts generally break the causation inquiry into two parts: causation in
fact and legal causation. Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977, 985 (Colo.
App. 2011).

13

1. Causation in Fact
As to causation in fact, a plaintiff must establish either that “(1) but for the
defendant’s alleged negligence, the claimed injury would not have occurred, or (2) the
defendant’s alleged negligence was a necessary component of a causal set that would
have caused the injury.” Id. at 987 (citing June v. Union Carbide Corp., 577 F.3d 1234,
1245 (10th Cir. 2009)). The latter test is appropriate where “some events unrelated to
the defendant’s conduct may also have contributed to bringing about the claimed
injury.” Id. at 985. The Court does not understand Master Craft to argue that plaintiff
has failed to raise a genuine issue of fact regarding causation in fact. There is no
dispute that the balance weight from a Master Craft flexplate caused plaintiff’s injuries
and plaintiff has established a dispute of fact as to whether Master Craft negligently or
defectively welded the balance weight to the flexplate. A reasonable fact finder could
conclude that the negligent or defective balance weight welds were a necessary
component of a causal set that caused plaintiff’s injury.
2. Legal Causation
Once causation in fact is established, “legal causation must then be
determined.” Moore v. W. Forge Corp., 192 P.3d 427, 436 (Colo. App. 2007). Because
“tort law does not impose liability on an actor for all harm factually caused by the actor’s
tortious conduct,” Boulders at Escalante LLC v. Otten Johnson Robinson Neff &
Ragonetti PC, --- P.3d ----, 2015 WL 3776866, at *8 (Colo. App. June 18, 2015), the
doctrine of legal causation is “an attempt to spell out rules of law limiting the liability of a
negligent actor, using the language of causation.” Moore, 192 P.3d at 436 (emphasis in

14

original). Along those lines, intervening causes that are reasonably foreseeable do not
ordinarily relieve a defendant of liability. Jones v. Caterpillar Tractor Co., 701 P.2d 84,
86 (Colo. App. 1984); see also Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75,
81 (Colo. 2001) (“An intervening cause only relieves the defendant of liability if it was
not reasonably foreseeable.”). “Reasonably foreseeable intervening causes must be
viewed as within the scope of the original risk created by a defendant’s negligence, if
any, even to the extent of the foreseeable negligence on the part of third parties.”
Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 517 P.2d 406, 414 (Colo.
App. 1973).
Master Craft’s causation argument is based primarily on undisputed facts. Jeg’s
covered the flexplate’s NON SFI stamp with an SFI certification sticker. Mr. Savoya
testified that he would not have purchased a flexplate with a NON SFI designation.
Moreover, Mr. Savoya would not have been permitted to operate his race vehicle at the
Dragway unless the vehicle had an SFI certification sticker on the flexplate. As a result,
Master Craft argues that, but for Jeg’s placement of an SFI certification sticker over the
NON SFI stamp, (1) Mr. Savoya would not have purchased the flexplate, (2) the
allegedly defective flexplate would not have been installed in Mr. Savoya’s race vehicle
on July 30, 2011, and (3) the flexplate would not have injured plaintiff. Docket No. 101
at 9-10. In response, plaintiff does not dispute the fact that, but for Jeg’s conduct, the
flexplate would not have been installed in Mr. Savoya’s race vehicle. Rather, plaintiff
argues that, because the balance weight welds would have broken during normal or
racing use, the defective balance weight welds – not the racing use of the flexplate –
caused plaintiff’s injuries. Docket No. 111 at 9-10. Both parties’ arguments, however,
15

fail to properly analyze this issue in terms of whether Jeg’s actions constitute a
reasonably foreseeable intervening cause.
Foreseeability is ordinarily a question of fact. See Westin Operator, LLC v. Groh,
347 P.3d 606, 614 n.5 (Colo. 2015). W here, as here, there are multiple factual causes
of a plaintiff’s injuries,
[a] defendant’s conduct “is not a cause of another’s injuries if, in order to
bring about such injuries, it was necessary that the conduct combine or join
with an intervening cause which also contributed to cause the injuries, but
which intervening cause would not have been reasonably foreseen by a
reasonably careful person under the circumstances.”
Moore v. W. Forge Corp., 192 P.3d 427, 436 (Colo. App. 2007) (quoting Scharrel v.
Wal-Mart Stores, Inc., 949 P.2d 89, 93 (Colo. App. 1997)); see also Groh, 347 P.3d at
614 n.5 (noting that foreseeability is the “touchstone” of legal causation). Foreseeability
“depends in part on the common sense consideration of the risks created by various
conditions and circumstances.” Walcott v. Total Petroleum, Inc., 964 P.2d 609, 612
(Colo. App. 1998) (quoting Restatement (Second) of Torts § 435 cmt. c. (“Where it
appears to the court in retrospect that it is highly extraordinary that an intervening cause
has come into operation, the court may declare such a force to be a superseding
cause.”). Thus, the question is whether the harm plaintiff suffered was “within the
scope of the risk created by defendant’s conduct.” Scharrel, 949 P.2d at 94. “[T]he fact
that the harm is brought about through the intervention of another force does not relieve
the actor of liability, except where the harm is intentionally caused by a third person and
is not within the scope of the risk created by the actor’s conduct.” Id. “[I]t is not
necessary that the tortfeasor be able to foresee the exact nature and extent of the

16

injuries or the precise manner in which the injuries occur, but only that some injury will
likely result in some manner as a consequence of his negligent acts.” HealthONE v.
Rodriguez ex rel. Rodriguez, 50 P.3d 879, 889 (Colo. 2002); see also Scharrel, 949
P.2d at 94 (“an inability to reasonably foresee the particular intervening force that
combined with [defendant’s] conduct to cause the injuries d[oes] not reliev e defendant
of liability for its own negligence”).
In Rodriguez ex rel. Rodriguez v. HealthONE, 24 P.3d 9, 12-13 (Colo. App.
2000), rev’d on other grounds by 50 P.3d 879 (Colo. 2002), an anesthesiologist left a
vial of phenol on top of a hospital cart holding medications. Although labeled
differently, the vial of phenol was otherwise identical to a vial of guanethidine. Id.
Three weeks later, a second anesthesiologist mistakenly took the vial of phenol from
the hospital cart, rather than a vial of guanethidine, and injected its contents into
plaintiff, causing an adverse reaction requiring surgery. Id. After surgery, the second
anesthesiologist injected plaintiff with too many sedatives while changing a dressing,
causing plaintiff to suffer cardiac arrest. Id. Plaintiff brought suit against both
anesthesiologists. Id. The Colorado Court of Appeals rejected the first
anesthesiologist’s argument that his conduct did not cause plaintif f’s injuries,
concluding that, “because there can be more than one proximate cause of [plaintiff’s]
injuries, [the first anesthesiologist’s] actions may have proximately caused those
injuries,” notwithstanding the second anesthesiologist’s actions. Id. at 15. Although the
first anesthesiologist’s actions took place three weeks before plaintiff’s injuries, “his
actions were not attenuated from the injury that occurred.” Id.

17

The defective balance weight welds created a risk that the welds would fail while
the flexplate was spinning, ejecting the balance weight at a high rate of speed. From
that risk, it is foreseeable that the balance weight would strike and injure a bystander
such as plaintiff. A reasonable juror could therefore find that plaintiff’s injuries were
within the scope of risk created by the defective balance weight welds. See Scharrel,
949 P.2d at 94. Because plaintiff’s injuries are within the scope of risk created by
defective balance weight welds, Master Craft’s conduct may be considered a legal
cause of plaintiff’s injuries regardless of whether it could foresee the particular
intervening effect of Jeg’s conduct or foresee the precise manner in which plaintiff’s
injuries occurred. HealthONE, 50 P.3d at 889; Scharrel, 949 P.2d at 94.
Master Craft argues that it was not foreseeable that Jeg’s would cover up the
NON SFI stamp, thereby allowing the flexplate to be used in a race vehicle. Docket No.
101 at 8. This argument is not, however, a sufficient basis upon which to grant Master
Craft summary judgment as to causation. First, as noted above, “[i]t is not necessary
that the tortfeasor be able to foresee . . . the precise manner in which the injuries occur,
but only that some injury will likely result in some manner as a consequence of the
negligent acts.” Koca ex. rel Aplar v. Keller, 97 P.3d 346, 350 (Colo. App. 2004), rev’d
on other grounds by Keller v. Koca, 11 P.3d 445 (Colo. 2005). Thus, even though
Master Craft may not have foreseen that a parts supplier such as Jeg’s would cover up
the NON SFI stamp, the fact that a reasonable manufacturer of flexplates could foresee
injuries to bystanders from balance weights detaching due to improper welds does not
render Master Craft not liable for injuries flowing from defective balance weight welds.
At best Master Craft’s argument establishes that Jeg’s conduct is one of multiple
18

proximate causes of plaintiff’s injuries. See Rodriguez, 24 P.3d at 15. Second, a
reasonable juror could find it foreseeable that Master Craft’s flexplates, particularly
those designed for use in larger engines, would be sold to people rebuilding cars to
increase horsepower, and that those flexplates would therefore spin at higher RPMs
than in an ordinary vehicle. See Docket No. 111-5 at 23-24, pp. 276:21-277:6. It is not,
therefore, wholly unforeseeable that Master Craft’s flexplates would be used in higher
RPM applications, such as racing, and moreover, it is irrelevant whether Master Craft
could foresee the precise manner in which its flexplates would come to be used in
higher RPM applications. See Bradford, 517 P.2d at 414.
Master Craft argues that “it would be pure speculation for any jury to conclude
that the balance weight would have detached in a non-racing application.” See Docket
No. 101 at 9. Not only is this argument incorrect in light of Mr. Skaggs’ opinions,9 but
Master Craft does not, as is its burden, provide sufficient evidence to conclude, as a
matter of law, that the balance weight welds failed only because the flexplate was used
for racing. In support of its assertion, Master Craft cites only a small portion of Mr.
Cornelissen’s deposition testimony. Mr. Cornelissen testified that, if 0 to 4500 RPMs

9

To the extent Master Craft relies on Truck Ins. Exchange v. MagneTek, Inc., 360
F.3d 1206 (10th Cir. 2004), such reliance is misplaced for the same reason. In Truck
Insurance, the Tenth Circuit considered whether plaintiff could establish causation in
light of the fact that plaintiff presented no expert testimony on the issue of causation.
Id. at 1215. The Court concluded that the jury could not find in plaintiff’s favor on the
issue of causation without engaging in speculation and held that defendant was entitled
to summary judgment. Id. at 1216. Here, however, a jury could rely on Mr. Skaggs’
opinion, the admissibility of which is unchallenged, that the balance weight welds were
unsafe for any use and conclude that, regardless of whether the flexplate was used in a
race vehicle, it was foreseeable that plaintiff’s injuries would result from defective
balance weight welds.
19

are achieved in a second and a half, the counterweight may receive a higher load than
if 0 to 6000 RPMs are achieved in four seconds and, as such, “If you have a very high
rate of acceleration, you could conceivably end up with higher load at lower RPM than
you do at steady state when the thing is turning at 4500 RPM.” Docket No. 101-8 at 2,
p. 110:2-21. Master Craft fails to provide sufficient context for the portion of Mr.
Cornelissen’s deposition testimony upon which its argument relies and does not provide
any additional expert testimony on the issue. Moreover, a reasonable juror could reject
Master Craft’s argument in favor of Mr. Skaggs’ opinion that the balance weight welds
were unsafe for any use. See Docket No. 111-16 at 4.
In essence, Master Craft’s arguments assert that Master Craft could not have
foreseen that a bystander would be injured by a balance weight ejected from a flexplate
installed in a race vehicle. Such an assertion, even if true, is no more than an
argument that Master Craft could not have foreseen the precise manner in which
plaintiff’s injuries would occur, which does not relieve Master Craft of liability for injuries
resulting from defective balance weight welds. See HealthONE, 50 P.3d at 889.
Although legal causation can, in some cases, be decided as a matter of law, see, e.g.
Walcott, 964 P.2d 609, this is not such a case. Cf. Rodriguez, 24 P.3d at 15-16.
Master Craft’s motion for summary judgment on the issue of causation is therefore
denied.
B. Misuse
Master Craft argues that installation of the flexplate in a race vehicle constitutes
a misuse sufficient to bar plaintiff’s products liability claim pursuant to Colo. Rev. Stat.

20

§ 13-21-402.5. Docket No. 101 at 10.
A product liability action may not be commenced or maintained against a
manufacturer or seller of a product that caused injury, death, or property
damage if, at the time the injury, death, or property damage occurred, the
product was used in a manner or for a purpose other than that which was
intended and which could not reasonably have been expected, and such
misuse of the product was a cause of the injury, death, or property damage.
§ 13-21-402.5. “Misuse is a causation concept which excuses the seller of an
admittedly defective product from liability when the misuse and not the defect caused
the injury.” White v. Caterpillar, Inc., 867 P.2d 100, 107 (Colo. App. 1993). If the
misuse of the product “is the sole cause of damages, and thus, the alleged defect was
not a cause thereof, then the plaintiff cannot recover under strict liability theory.” States
v. R.D. Werner Co., Inc., 799 P.2d 427, 430 (Colo. App. 1990). If , however, misuse of
the product is not the sole cause, it may “constitute comparative fault which would
reduce the plaintiff’s recovery.” Id.; see also § 13-21-406 (“In any product liability
action, the fault of the person suffering the harm, as well as the fault of all others who
are parties to the action for causing the harm, shall be compared by the trier of fact . . .
.”). Misuse is not a defense “if the consumer’s misuse can be reasonably anticipated by
the manufacturer.” White, 867 P.2d at 107; see also Walcott, 964 P.2d at 613-14
(“because the assailant’s use of the gasoline was not reasonably foreseeable, it
constituted misuse of the product”).
As discussed above, Master Craft designed the flexplate for use in a Chevrolet
454 engine and anticipated that customers would purchase the flexplate with the
intention of increasing horsepower. See Docket No. 111-5 at 23-24, pp. 276:21-277:6.
Thus, there is a factual dispute as to what uses of the flexplate Master Craft could have
21

intended or reasonably expected. See § 13-21-402.5 (defining misuse as use of a
product “in a manner or for a purpose other than that which was intended and which
could not reasonably have been expected”).
Master Craft also argues that, because § 13-21-402.5 states that m isuse is a
defense if such misuse was “a” cause of the injury, the racing use of the flexplate need
not be the sole cause of plaintiff’s injuries in order to provide a complete defense to
liability. Docket No. 111 at 14. Although there do not appear to be any published
decisions interpreting the causation requirement of § 13-21-402.5, the Court rejects
Master Craft’s interpretation. Colorado’s products liability statutes would lose much of
their effect if, as Master Craft suggests, every misuse constituting a but for cause of a
plaintiff’s injuries – regardless of foreseeability issues – was a complete defense to a
products liability claim. Moreover, “[a] statute is not presumed to alter the common law
except to the extent that such statute expressly provides.” Preston v. Dupont, 35 P.3d
433, 440 (Colo. 2001). Section 13-21-402.5 does not ex pressly abrogate the common
law regarding causation and misuse; thus, the Court will not infer that § 13-21-402.5
alters the common law regarding causation. See, e.g., Boles v. Sun Ergoline, Inc., 223
P.3d 724, 726 (Colo. 2010) (noting that General Assembly’s enactment of products
liability statutes has “never . . . fundamentally altered the nature of, or rationale for, a
strict products liability claim”). Because Master Craft has not established that any
misuse of the flexplate was the sole cause of plaintiff’s injuries, the misuse defense is
not a complete defense to plaintiff’s products liability claims. See White, 867 P.2d at
108. Although the misuse defense may comparatively reduce Master Craft’s fault, such
is an issue for trial. See § 13-21-406. Master Craft’s motion for summary judgment as
22

to the misuse defense is therefore denied.
C. Substantial Change
Master Craft argues that Jeg’s act of placing the SFI certification sticker on the
flexplate constitutes a substantial change in the condition of the flexplate, thereby
relieving Master Craft of liability. Docket No. 101 at 11. To succeed on a strict liability
claim based upon a manufacturing defect, a plaintiff must prove, among other things,
that the product was expected to and did reach the consumer without substantial
change in that condition. Barton v. Adams Rental, Inc., 938 P.2d 532, 536-37 (Colo.
1997) (citing Union Supply Co. v. Pust, 583 P.2d 276, 282-83 (Colo. 1978)); see also
Elvig v. Nintendo of Am., Inc., No. 08-cv-02616-MSK-MEH, 2010 WL 3803814, at *6 (D.
Colo. Sep. 23, 2010). The Colorado Supreme Court has emphasized, however, “that
the expected change in the parts must be substantial; small changes and minor
processing will not relieve the component part manufacturer of liability. Of course, even
substantial changes which do not affect a pre-existing design defect in parts do not
absolve the manufacturer of liability.” Pust, 583 P.2d at 283. There is no suggestion
that placing the SFI certification sticker on the flexplate substantially changed the
defective balance weight welds, and Master Craft does not cite any authority that a
change to something other than the aspect of the product which is unreasonably
dangerous constitutes a substantial change. Cf. Manning v. Ashland Oil Co., 721 F.2d
192, 195 n.3 (7th Cir. 1983) (rejecting argument that label constituted substantial
change in lacquer thinner because, although a significant cause of the accident, “the
label did not alter the dangerousness of the lacquer thinner as a tar stain remover”).

23

Thus, it is not clear that the act of placing the SFI certification sticker on the flexplate
constitutes a substantial change. Even assuming that the removal or obfuscation of the
NON SFI warning label could constitute a change in the condition of the flexplate, such
a change is not a substantial one unless Master Craft can establish that the balance
weight welds would not have broken through normal, non-racing use of the flexplate.
Master Craft fails to do so. Master Craft’s motion for summary judgment on this issue is
therefore denied.
IV. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff seeks summary judgment as to three elements of his products liability
claim, namely, (1) that each defendant is a manufacturer as that term is defined under
Colorado law, (2) that each defendant is in the business of selling flexplates, and (3)
that each defendant sold the flexplate at issue. Docket No. 103 at 2; see also Fed. R.
Civ. P. 56(a) (“A party may move for summary judgment, identifying . . . the part of each
claim or defense . . . on which summary judgment is sought.”); Gray Ins. Co. v. Heggy,
2012 WL 4128034, at *2 n.1 (W .D. Okla. Sep. 19, 2012) (“partial summary judgment,
resulting in the disposition of less than the entire case or claim, is permitted”). Under
the Colorado Products Liability Act (“CPLA”), Colo. Rev. Stat. § 13-21-401, et seq., a
product liability action is defined as
any action brought against a manufacturer or seller of a product, regardless
of the substantive legal theory or theories upon which the action is brought,
for or on account of personal injury, death, or property damage caused by or
resulting from the manufacture, construction, design, formula, installation,
preparation, assembly, testing, packaging, labeling, or sale of any product,
or the failure to warn or protect against a danger or hazard in the use,
misuse, or unintended use of any product, or the failure to provide proper
instructions for the use of any product.
24

§ 13-21-401(2). A manufacturer is defined as
a person or entity who designs, assembles, fabricates, produces, constructs,
or otherwise prepares a product or a component part of a product prior to the
sale of the product to a user or consumer. The term includes any seller who
has actual knowledge of a defect in a product or a seller of a product who
creates and furnishes a manufacturer with specifications relevant to the
alleged defect for producing the product or who otherwise exercises some
significant control over all or a portion of the manufacturing process or who
alters or modifies a product in any significant manner after the product
comes into his possession and before it is sold to the ultimate user or
consumer. . . . A seller not otherwise a manufacturer shall not be deemed
to be a manufacturer merely because he places or has placed a private label
on a product if he did not otherwise specify how the product shall be
produced or control, in some significant manner, the manufacturing process
of the product and the seller discloses who the actual manufacturer is.
§ 13-21-401(1). A “seller” is defined as “any individual entity, including a manufacturer,
wholesaler, distributor, or retailer, who is engaged in the business of selling . . . any
product for resale, use, or consumption.” § 13-21-401(3).
A. Master Craft
Master Craft’s argument opposing plaintiff’s motion is essentially nonresponsive.
Master Craft does not dispute that it is a manufacturer, that it is engaged in the
business of selling flexplates, and that it manufactured the flexplate at issue. Docket
No. 110 at 3, ¶¶ 1-4. Rather, Master Craft disputes plaintiff’s motion simply by making
the causation argument in its summary judgment motion. For the reasons stated
above, Master Craft does not provide sufficient evidentiary support for its position that,
but for the use of the flexplate in a racing application, the balance weight welds would
not have failed. Thus, not only are Master Craft’s arguments irrelevant to plaintiff’s
motion, they are premised upon disputed issues of fact. The Court need not further
discuss such arguments in resolving plaintiff’s motion.
25

1. “Manufacturer”
Master Craft does not dispute that it manufactured the flexplate that was sold to
Autocraft and injured plaintiff. Docket No. 110 at 3, ¶ 2. Rather, Master Craft argues
that, because Jeg’s placed an SFI certification sticker on the flexplate, thereby allowing
for the flexplate to be used in a race vehicle, Jeg’s – and no one else – should be
considered the manufacturer of the flexplate. Id. at 10-11. Master Craft’s argument is
devoid of citation to relevant legal authority and is otherwise without merit. Section 1321-401 contemplates the possibility that a product can have more than one
manufacturer. Thus, the mere fact that Jeg’s and Autocraft may also be considered
manufacturers of the flexplate does not mean that Master Craft is not a manufacturer.
Master Craft argues that, because it has asserted a misuse defense under § 1321-402.5, it ostensibly should not be considered a manufacturer of the flexplate.
Docket No. 110 at 10. Master Craft’s argument is untenable for multiple reasons. First,
for the reasons discussed above, Master Craft has failed to provide evidentiary support
for its misuse defense. Second, Master Craft does not cite any legal authority in
support of its position that, once a product is deemed to have been misused under
§ 13-21-402.5, the party who fabricated the product is no longer considered a
manufacturer pursuant to § 13-21-401(1). Third, § 13-21-402.5 suggests that the
misuse defense is applicable only to “a manufacturer or seller.” Master Craft’s
assertion of the misuse defense therefore undercuts its argument that it is not a
manufacturer. Moreover, § 13-21-402.5 functions as a defense to liability, but does not
somehow change the entity’s status as a manufacturer.
Mr. Haswell testified that Master Craft manufactured the flexplate at issue in this
26

case, which included welding the balance weight to the flexplate. Docket No. 103-6 at
12, p. 123:4-14; see also Docket No. 103-5 at 2. Master Craft fails to create a genuine
dispute of fact as to whether it “fabricates, produces, constructs, or otherwise prepares
a product or a component part of a product prior to the sale of the product to a user or
consumer.” See § 13-21-401(1) . Thus, plaintiff is entitled to summary judgment on
this element of his claim.
2. Business of Selling Flexplates
In the eight years prior to June 2012, Master Craft manufactured 17,000
flexplates and sold those flexplates to Autocraft. Docket No. 111 at 6, ¶ 32; Docket No.
122 at 5, ¶ 32; Docket No. 110 at 3, ¶ 3-4. Master Craf t does not dispute that it is
engaged in the business of selling flexplates; rather, it argues that it is only engaged in
the business of selling NON SFI flexplates. Docket No. 110 at 3, ¶ 3; see also id. at 1112. Master Craft does not provide any authority in support of its position that this fact
somehow defeats plaintiff’s evidence on this element, and the Court finds no basis for
so concluding. Moreover, Master Craft fails to establish that it was the SFI-related use
of the flexplate that caused the balance weight welds to break loose. Docket No. 111 at
6, ¶ 32. Thus, Master Craft fails to raise a genuine dispute as to this element and
plaintiff is entitled to summary judgment.
3. Sold the Flexplate at Issue
Master Craft concedes that it sold the flexplate at issue to Autocraft, but repeats
its argument that, when it left Master Craft’s facility, the flexplate was stamped NON
SFI. Docket No. 110 at 3, ¶ 4. There is no evidence that the balance weight welds –

27

the aspect of the flexplate that plaintiff contends is unreasonably dangerous – were in
any way altered after the flexplate left Master Craft’s facility, which undercuts Master
Craft’s argument that the SFI certification sticker substantially altered the condition of
the product. See Manning, 721 F.2d at 195 n.3. Moreover, to whatever extent Jeg’s
placement of an SFI certification sticker altered the flexplate, Master Craft fails to
provide any authority supporting its contention that such an alteration somehow renders
the flexplate a wholly different product for purposes of this element. The Court has no
basis to so conclude and therefore finds no genuine dispute of fact as to this element.
For the foregoing reasons, plaintiff’s motion for summary judgment as to Master
Craft will be granted.10
B. Autocraft
1. Manufacturer
Plaintiff argues that Autocraft is a manufacturer because it is (1) “a seller of a
product who creates and furnishes a manufacturer with specifications relevant to the
alleged defect for producing the product” and/or (2) a seller of a product “who otherwise
exercises some significant control over all or a portion of the manufacturing process
. . . .” Docket No. 103 at 15 (citing § 13-21-401(1)). Autocraft disputes that it is a
manufacturer under either definition.
Turning first to the question of whether Autocraft created or furnished Master
Craft with specifications relevant to the alleged defect, the parties agree that the defect
10

In his reply brief, plaintiff requests that the Court sanction Master Craft under
Fed. R. Civ. P. 11. Docket No. 115 at 6. Plaintiff’s request is procedurally improper,
see D.C.COLO.LCivR 7.1(d), and there is no motion for sanctions pending before the
Court. Plaintiff’s request is therefore denied.
28

in the flexplate was an improperly welded balance weight. Autocraft argues that plaintiff
has not established that Autocraft instructed Master Craft on how to make the balance
weight welds, including setting weld parameters, size and location of the weld, and
quality control. Docket No. 109 at 9-10. In support of its argument, Autocraft cites
testimony from Mr. Haswell, stating, among other things, that Master Craft supervisors
instruct its welders on the size and location of the weld. See id. (citing Docket No. 1091 at 5, p. 44:2-15). Autocraft also disputes the relevance of the November 1988 letter,
arguing that it does not reflect the instructions it provided Master Craft during the
relevant time period. Mr. Haswell testified that, based upon the November 1988 letter,
Master Craft was spot welding and mig welding the balance weights. Docket No. 109-1
at 14, p. 79:18-21. 11 In 2004, Mr. Haswell returned to Master Craft after working at a
sister company. He testified that, between 2004 and October 2011, the balance
weights were only mig welded and that it was not until October 2011, when Autocraft
requested spot welding and agreed to pay the additional cost, that Master Craft began
spot welding (in addition to mig welding) the balance weights. Id. at 12, pp. 70:1-71:10.
Autocraft argues that, because plaintiff’s experts agree that the balance weight welds
were not made at a high enough temperature and because Autocraft did not dictate to
Master Craft the temperature of the welds, there is a genuine dispute of fact as to
whether Autocraft furnished specifications relevant to the improperly welded balance
weight.

11

Although the November 1988 letter refers to “resistance welding,” Mr. Haswell
testified that “resistance welding” and “spot welding” are the same thing. Id. at 14, p.
79:6-11.
29

Plaintiff argues that the November 1988 letter and Autocraft’s October 2011
instructions to Master Craft establish that Autocraft furnished specifications to Master
Craft relevant to the defective balance weight welds. Docket No. 112 at 7. Plaintiff
further contends that the fact Autocraft did not dictate specifically how Master Craft
should perform the welds does not, by itself, establish that Autocraft did not furnish
specifications relevant to the balance weight welds. Id.
Genuine disputes of material fact preclude summary judgment on this issue.
Although the November 1988 letter may suggest that Autocraft directed Master Craft to
spot and mig weld the balance weights, the letter could also be interpreted as Master
Craft simply explaining how it chose to weld the balance weights. See Docket No. 10312. The fact that, at some point between 1988 and 2004, Master Craft stopped spot
welding the balance weights begs the question of whether the change was directed by
Autocraft, of which there is no evidence. Thus, there are disputes of fact as to what
direction Autocraft provided Master Craft with respect to the balance weight welds and
whether such direction constitutes a “specification” as that term is used in § 13-21401(1).12 Moreover, even assuming that Autocraft specifically directed Master Craft to
(or not to) spot and mig weld the balance weights, in light of the fact that Autocraft did
not direct Master Craft as to the weld placement, size, and parameters, there remains a
fact question as to whether such a specification is relevant to the particular defect
12

Although Autocraft prefers to characterize the directions it provided Master
Craft as “guidelines,” rather than “specifications,” see Docket No. 109 at 4, ¶ 10,
Autocraft does not identify any meaningful difference between the two terms or
otherwise explain why providing only “guidelines” somehow renders its conduct outside
the ambit of § 13-21-401(1). In the absence of such an explanation, Autocraft’s attempt
to distinguish its conduct on this basis is unavailing.
30

alleged in this case. Thus, plaintiff’s motion for summary judgment on this issue is
denied.
Plaintiff argues that Autocraft exercised significant control over the
manufacturing process because it purchased tools and dies f or Master Craft and
directed every significant feature and specification of the flexplates. Docket No. 103 at
15. There appears to be little caselaw interpreting the term “significant control.” Courts
considering the question have found that significant control entails something more
than providing general specifications regarding the product, see, e.g., Watson v. Dillon
Cos., Inc., 797 F. Supp. 2d 1138, 1161-62 (D. Colo. 2011), and m ore than ordering a
particular feature on behalf of an end-user customer. See, e.g., Bullock, ex rel. Bullock
v. Daimler Trucks N. Am., LLC, No. 08-cv-00491-PAB-MEH, 2010 WL 1380724, at *4
(D. Colo. March 30, 2010). Autocraft argues that the purchase of tools and dies for
Master Craft to use in manufacturing does not constitute sufficient control, in part
because it was Master Craft who designed and made the dies to fit the task of
fabricating flexplates. Docket No. 109 at 14. Plaintiff responds that “[t]his close,
intertwined business arrangement is akin to a partnership between Master Craft and
[Autocraft], with [Autocraft] deeply involved in controlling the manufacturing process by
buying the tools and dies, and then purchasing one hundred percent (100%) of the endproduct.” Docket No. 112 at 8. Plaintiff’s argument is unsupported by citation to the
record and, moreover, is undercut by Mr. Haswell’s testimony that Autocraft paid for
only a portion of the equipment necessary to manufacture the flexplates. See Docket
No. 103-6 at 10, pp. 91:22-92:12.
Autocraft concedes that it provided Master Craft with an OEM flexplate from
31

which to reverse engineer the flexplate at issue, requested a thicker, exotic metal be
used for the flexplate’s inner plate, requested welding on both side of the ring gear,
requested that the flexplate undergo zinc plating, directed Master Craft to stamp each
flexplate with “NON SFI” and “Made in the USA,” and, in 2011, requested that additional
spot welds be used to secure the balance weight. Docket No. 109 at 12, 16. Autocraf t
nonetheless contends that there mere act of providing the OEM flexplate to Master
Craft was no more than a general specification for how the flexplate should be
manufactured and that the remaining changes Autocraft directed Master Craft to
implement, even when considered together, did not constitute the exercise of control
over the manufacturing process. Id. Plaintiff responds that this case can be
distinguished from both Watson and Bullock. Docket No. 112 at 9. Plaintiff may be
correct, but the mere fact that those cases are distinguishable does not, by itself, entitle
him to summary judgment. Plaintiff’s only remaining argument on this issue is that
Autocraft should be considered a manufacturer because, in 2011, it successfully
directed Master Craft to spot weld the weights. Id. at 8. Although Autocraft may have
had the ability to direct Master Craft to make certain changes to the manufacturing
process, this does not, by itself, constitute significant control.
Although plaintiff has demonstrated that Autocraft exerted some control over the
flexplate’s design, features, and fabrication, whether that control constitutes a
significant part of the manufacturing process is a question for the jury. The Court
cannot therefore conclude that plaintiff is entitled to summary judgment on this issue.
Plaintiff does not assert that any of the other definitions of the term manufacturer apply

32

to Autocraft.13 Thus, plaintiff’s motion for summary judgment as to whether Autocraft is
a “manufacturer” under § 13-21-401(1) will be denied.
Autocraft does not dispute that it is engaged in the business of selling flexplates
and that it sold the flexplate at issue. Docket No. 103 at 8, ¶¶ 22-23; Docket No. 109 at
6, ¶¶ 22-23. Thus, plaintiff’s motion for summary judgment as to these two elements is
granted.14
C. JEG’s
1. Manufacturer
Plaintiff argues that Jeg’s is a manufacturer pursuant to the apparent
manufacturer doctrine and because it altered or modified the flexplate before the
flexplate was sold to Mr. Savoya. Docket No. 103 at 12-13.
a. Apparent Manufacturer Doctrine
The apparent manufacturer doctrine, as set forth in Restatement (Second) of
Torts § 400, provides that “[o]ne who puts out as his own product a chattel
manufactured by another is subject to the same liability as though he were its
13

Plaintiff additionally argues that Autocraft should be considered a manufacturer
because it represented itself in advertising as the manufacturer of the flexplates.
Docket No. 103 at 16. Plaintiff does not assert that this fact is relevant to any particular
definition set forth in § 13-21-401(1) or that this renders Autocraf t a manufacturer
pursuant to the apparent manufacturer doctrine. Moreover, plaintiff concedes that this
fact is only anecdotal evidence that, while insufficient to “satisfy Colorado law for the
definition of a manufacturer under products liability law, [] underscores the fairness of
ordering that ACM is a manufacturer.” Id. Even if plaintiff could establish that this fact
is a relevant consideration under § 13-21-401(1), it would not warrant granting summary
judgment in plaintiff’s favor.
14

Although Autocraft’s response brief appears to request affirmative relief,
Docket No. 109 at 17, such a request is procedurally improper and will therefore be
denied. See D.C.COLO.LCivR 7.1(d).
33

manufacturer.” The rationale for this rule is that, when an actor appears to be the
manufacturer of a product, the actor frequently causes the product “to be used in
reliance upon his care in making it” or, when the product appears to have been made
for the actor, the actor causes the product to be used in reliance “upon a belief that he
has required it to be made properly for him and that the actor’s reputation is an
assurance to the user of the quality of the product.” Id. cmt. d.
Colorado courts have not expressly adopted § 400, nor has § 400 been
expressly codified in the CPLA. Given the absence of authoritative precedent from the
Colorado Supreme Court, the question becomes whether, if presented with the
opportunity, the Colorado Supreme Court would apply the apparent manufacturer
doctrine in this case. See Lamb v. Rizzo, 391 F.3d 1133, 1138 (10th Cir. 2004). The
stated purpose of the CPLA is “to impose liability on those who create the risk of harm
by their involvement in the process which places the defective product in the stream of
commerce.” Johnston v. Amsted Indus., Inc., 830 P.2d 1141, 1143 (Colo. App. 1992).
The last sentence of Colo. Rev. Stat. § 13-21-401(1) states,
A seller not otherwise a manufacturer shall not be deemed to be a
manufacturer merely because he places or has placed a private label on a
product if he did not otherwise specify how the product shall be produced or
control, in some significant manner, the manufacturing process of the
product and the seller discloses who the actual manufacturer is.
The Tenth Circuit has recognized that this sentence is similar to § 400 of the
Restatement such that, “[b]y negative implication the statute allows a seller who places
a private label on a product without disclosing the actual manufacturer to be held liable
as a manufacturer.” Yoder v. Honeywell Inc., 104 F.3d 1215, 1223 (10th Cir. 1997). As
Judge Babcock concluded, the last sentence of Colo. Rev. Stat. § 13-21-401(1) “would
34

make no sense unless placement of a private label was otherwise sufficient to impose
liability.” Long v. U.S. Brass Corp., 333 F. Supp. 2d 999, 1002 (D. Colo. 2004); see
also City & Cnty. of Denver v. Bd. of Assessment Appeals of State, 30 P.3d 177, 180
(Colo. 2001) (“we afford the statute’s language its ordinary and common meaning,
giving effect to every term and provision”). The CPLA explicitly sets forth circumstances
when sellers are not held strictly liable for an unreasonably dangerous product. See
Colo. Rev. Stat. § 13-21-401; § 13-21-402. Sellers acting as apparent manufacturers
are not among the listed circumstances. Had the General Assembly wished to exclude
apparent manufacturers from strict liability, it presumably could have done so explicitly.
See Long, 333 F. Supp. 2d at 1003. 15 Moreover, the stated rationale of the apparent
manufacturer doctrine is consistent with the stated purpose of the CPLA. Compare
Restatement (Second) of Torts § 400 (1965) cmt. d., with Johnston, 830 P.2d at 1143.
Of the jurisdictions to consider the issue, many have applied the doctrine to defendants
who are in the chain of distribution. See Long, 333 F. Supp. 2d at 1003 (collecting
cases); Seasword v. Hilti, Inc., 525 N.W. 2d 501, 503 n.3 (Mich. App. 1994), vacated on
other grounds by 537 N.W.2d 221 (Mich. 1995) (same); see also Lou v. Otis Elevator
Co., 933 N.E. 2d 140, 146 (Mass. App. Ct. 2010) (collecting Massachusetts cases
recognizing apparent manufacturer doctrine); Burkert v. Petrol Plus of Naugatuck, Inc.,
579 A. 2d 26, 35 (Conn. 1990) (recognizing apparent manufacturer doctrine, but

15

Although not binding, the Court notes that Colorado Jury Instructions, 4th –
Civil § 14:2 (2015), defines a manufacturer as, among other things, “[a] seller who
placed a private label on the product and did not disclose who the actual manufacturer
is.” This particular aspect of § 14:2 does not appear to have been discussed by
Colorado appellate courts.
35

declining to apply it to trademark licensor with no involvement in production, marketing,
or distribution of product); Warzynski v. Empire Comfort Sys., Inc., 401 S.E. 2d 801,
804 (N.C. App. 1991) (concluding that § 400 and North Carolina products liability
statutes “can be read together and do not conflict” and adopting apparent manufacturer
doctrine). But see Bornsen v. Pragotrade, LLC, 804 N.W. 2d 55, 59-61 (N.D. 2011)
(holding that, because North Dakota products liability statutes “sharply curtail liability of
a ‘nonmanufacturing seller,’” North Dakota does not recognize apparent manufacturer
doctrine); Kennedy v. Guess, Inc., 806 N.E. 2d 776, 783 (Ind. 2004) (applying § 400 to
negligence claims, but not to strict liability claims).16 In the absence of authority to the
contrary, the Court finds Long persuasive and reaches the same conclusion for
substantially the same reasons.
Jeg’s does not dispute that the apparent m anufacturer doctrine is generally
applicable. Rather, Jeg’s argues that, in addition to proving that the defendant placed a
private label on the product and did not disclose the identity of the actual manufacturer,
a plaintiff seeking to assert the apparent manufacturer doctrine must show that the

16

The apparent manufacturer doctrine has been criticized as unnecessary in light
of § 402A of the Restatement (Second), which applies strict liability to sellers so long as
they sell a defective product. See Stephen C. Jarvis, Pure Confusion: Should Pure
Licensors Share the Products Liability of Manufacturers and Sellers of Dangerously
Defective Products, 61 DePaul L. Rev. 697, 704-05 (2012); see also Seasword, 525
N.W.2d at 503 (declining to apply apparent manufacturer doctrine in part because,
under Michigan law, “both the manufacturer and the seller of a defective product are
subject to liability for any injury arising from the product under the theories of breach of
warranty and failure to warn”). However, as noted above, the CPLA explicitly sets forth
circumstances under which sellers are and are not strictly liable for unreasonably
dangerous products. See Colo. Rev. Stat. § 13-21-401; § 13-21-402. Thus, it is not
clear that this particular criticism would preclude the Colorado Supreme Court from
applying the apparent manufacturer doctrine.
36

consumer was actually misled, deceived, or suffered some unfairness or injustice
related to defendant’s labeling of the product. Docket No. 108 at 14-15. Jeg’s does
not, however, provide any legal authority from Colorado or other jurisdictions supporting
its position. Jeg’s ostensibly relies on Hebel v. Sherman Equipment, 442 N.E. 2d 199,
203 (Ill. 1982), which states of the apparent manufacturer doctrine:
The primary rationale for imposing liability on the apparent manufacturer of
a defective product is that it has induced the purchasing public to believe that
it is the actual manufacturer, and to act on this belief – that is, to purchase
the product in reliance on the apparent manufacturer’s reputation and skill
in making it.
Hebel went on to hold that the relevant inquiry is whether a reasonable person, under
the circumstances, would identify the defendant as the maker of a particular product.
Id. (“That a casual observer, viewing the machines after their purchase and installation,
might think otherwise does not mean that a reasonable purchaser of car-washing
equipment, such as Glenbrook, would rely on such an impression.”). Hebel therefore
contradicts Jeg’s position that the apparent manufacturer doctrine applies only when a
specific consumer is subjectively deceived. Jeg’s also relies on Watson for the
proposition that other elements, such as causation or reliance, may be required under
an apparent manufacturer theory. Docket No. 108 at 14. However, the court in Watson
allowed a plaintiff to proceed on an apparent manufacturer theory, but expressly
declined to decide “whether any other elements are required, such as causation or
reliance.” 797 F. Supp. 2d at 1162. It does not appear that the court in Watson
subsequently had occasion to rule on the issue. Thus, Jeg’s reliance on Watson is
unpersuasive.

37

Jeg’s argues that the purpose of the last sentence of Colo. Rev. Stat. § 13-21401(1) is to protect consumers who are confused or misled and the purpose of § 13-21402 is to protect consumers against injustice. Docket No. 108 at 15. Jeg’s states that,
where a consumer is not actually confused or misled, the rationale for the apparent
manufacturer doctrine disappears. Id. The Court disagrees. The CPLA is aimed at
imposing strict liability on those who create harm by placing a defective product in the
stream of commerce. See Johnston, 830 P.2d at 1143. Section 13-21-401(1) def ines
the term “manufacturer” accordingly, focusing on defendants’ conduct in placing the
product in the stream of commerce, without regard for why a particular consumer chose
to purchase a particular product. To require an injured party to affirmatively prove that
the actual consumer was confused or misled by the defendant’s labeling of a particular
product would be contrary to the purpose of the CPLA and to its enumerated definitions
of “manufacturer.” Thus, the Court does not believe that the Colorado Supreme Court
would, in applying the apparent manufacturer doctrine, require a plaintiff to prove that a
consumer was actually deceived as to the origin of a product. Rather, the Court is
persuaded by the approach set forth in Hebel, which evaluates the applicability of the
apparent manufacturer doctrine through the lens of the reasonable purchaser.
There is no dispute that Jeg’s held itself out to the public as the manufacturer of
the flexplate. Jeg’s website and catalog identify flexplates as Jeg’s products and Jeg’s
promotes such products as “engineered and manufactured to the highest quality
standards.” Docket No. 103 at 10, ¶ 40; cf. Restatement (Second) of Torts § 400 cmt.
d. Jeg’s is listed on SFI’s website as a manufacturer of flexplates. Docket No. 103 at
10, ¶ 39. The SFI certification sticker’s reference to “This Manufacturer” was intended
38

to refer to Jeg’s and the flexplate (and others like it) was packaged in boxes bearing
Jeg’s name. Docket No. 103 at 9, ¶ 33. Although Mr. Smith testified that some people
may interpret Jeg’s advertising as asserting that Jeg’s manufactures its products and
other people may “know, you know, where products come from and who’s – and who is
the manufacturer,” Mr. Smith did not indicate on what basis a reasonable member of
the buying public could conclude anything other than that Jeg’s manufactured the
flexplate. Docket No. 103-13 at 14, pp. 259:24-260:22. W hen asked directly how a
consumer viewing Jeg’s catalog and website could determine who manufactured the
flexplates, Mr. Smith stated: “[consumers] would believe that Jeg’s is the manufacturer.”
Id.
Jeg’s unsuccessfully attempts to create a genuine dispute as to this question.
Jeg’s argues that Mr. Savoya knew that Jeg’s “was just a parts house, and not the
actual manufacturer” and that Jeg’s packaging did not “confuse Mr. Savoya into
believing that Jeg’s manufactured the flexplate.” Docket No. 108 at 15-16. However,
Jeg’s does not assert that Mr. Savoya represents a reasonable member of the buying
public and, as such, this argument is largely irrelevant. See Hebel, 442 N.E. 2d at 203.
Moreover, Jeg’s does not offer any evidence that, in light of how the flexplate was
marketed and packaged, a reasonable member of the buying public would conclude
that, simply because Jeg’s is a parts house, Jeg’s did not manufacture the flexplate.
No such evidence is apparent to the Court. Even assuming that Mr. Savoya represents
a reasonable member of the buying public, which Jeg’s does not assert, Jeg’s argument
lacks support. Mr. Savoya was asked generally to define a “parts house” and
responded that he thought of parts houses as retail centers, but not manufacturers.
39

Docket No. 108-4 at 3, p. 12:13-21. Later Mr. Savoya was asked directly if he knew
who manufactured the flexplate and responded, “No. . . . I mean, Jeg’s could have
made it, for all I know. I don’t know who made it. I didn’t ask them.” Docket No. 114-3
at 3, p. 86:13-19. At most, this testimony suggests that Mr. Savoya did not know and
did not particularly care who manufactured the flexplate; it does not, as Jeg’s argues,
establish that he knew that Jeg’s did not manufacture the flexplate or establish that he
was not confused as to the identity of the flexplate’s actual manufacturer.
Jeg’s appears to argue that, because its name was not actually stamped on the
flexplate itself, it should not be considered to have placed its own label on the flexplate.
Docket No. 108 at 15 (citing Long). This argument ignores the fact that the SFI
certification sticker referred to Jeg’s (although not by name), and the marketing and
packaging materials bore Jeg’s name. Under the circumstances, this fact is not
sufficient to create a genuine dispute of fact on this issue. Cf. Louviere v. Ace
Hardware Corp., 915 So. 2d 999, 1002 (La. Ct. App. 2005) (holding that otherwise
unlabeled bungee cord bearing “Ace” on the price tag raised dispute as to whether
defendant labeled the bungee cord as its own).
There is no dispute that Jeg’s did not disclose the identity of Autocraft (or Master
Craft) as the manufacturer of the flexplate. Jeg’s concedes as much, Docket No. 108 at
8, ¶ 45, and there is no evidence in the record that Jeg’s provided consumers with
information from which a reasonable member of the buying public could deduce that
anyone other than Jeg’s manufactured the flexplates. Plaintiff has provided sufficient
evidence establishing that Jeg’s held itself out to consumers as the manufacturer of the
flexplate and did not otherwise disclose that Autocraft and/or Master Craft were the
40

actual manufacturers. Jeg’s has failed to identify evidence creating a genuine dispute
of fact as to this issue and concedes that it is both in the business of selling flexplates
and sold the flexplate at issue to Mr. Savoya. See Docket No. 108 at 8, ¶¶ 46-47.
Thus, plaintiff’s motion for summary judgment as to Jeg’s will be granted.17
V. JEG’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Jeg’s argues that plaintiff’s exemplary damages claim fails for lack of evidence
and that both his exemplary damages claim and negligence claims fail for lack of
causation. Docket No. 102 at 12, 17.
A. Exemplary Damages
A claim for exemplary damages under Colo. Rev. Stat. § 13-21-102(1)(a) is not a
separate claim, but rather is “auxiliary to an underlying claim for actual damages.”
Palmer v. A.H. Robins Co., 684 P.2d 187, 213 (Colo. 1984).
In all civil actions in which damages are assessed by a jury for a wrong done
to the person or to personal or real property, and the injury complained of is
attended by circumstances of fraud, malice, or willful and wanton conduct,
the jury, in addition to the actual damages sustained by such party, may
award him reasonable exemplary damages. The amount of such reasonable
exemplary damages shall not exceed an amount which is equal to the
amount of the actual damages awarded to the injured party.
§ 13-21-102(1)(a). A party requesting damages must prove his or her entitlement to
them beyond a reasonable doubt. Webster v. Boone, 992 P.2d 1183, 1189 (Colo. App.
1999).
Willful and wanton conduct is defined as “conduct purposefully committed which

17

The Court need not therefore reach the question of whether Jeg’s is a
manufacturer because it altered or modified the product. See Colo. Rev. Stat. § 13-21401(1).
41

the actor must have realized as dangerous, done heedlessly and recklessly, without
regard to consequences, or of the rights and safety of others, particularly the plaintiff.”
§ 13-21-102(1)(b). “Where the defendant is conscious of his conduct and the existing
conditions and knew or should have known that injury would result, the statutory
requirements of section 13-21-102 are met.” Coors v. Security Life of Denver Ins. Co.,
112 P.3d 59, 66 (Colo. 2005).
In order to be entitled to exemplary damages, a plaintiff’s injury must be
“attended by” circumstances of fraud, malice, or willful and wanton conduct. § 13-21102. Jeg’s argues that the phrase “attended by” should be interpreted as “caused by,”
such that the conduct set forth in § 13-21-102 must be the sole cause of plaintiff’s
injuries. Jeg’s argument is without merit. The plain language of the statute does not
support Jeg’s interpretation. Had the General Assembly intended to limit exemplary
damages to situations where aggravating circumstances are the sole cause of a
plaintiff’s injuries, the General Assembly could have expressed such an intent directly.
Moreover, Jeg’s cites no Colorado case that has approved of its interpretation. To the
contrary, the Colorado Supreme Court has noted that an exemplary damages claim is
auxiliary to an underlying claim for damages, applying “only when a civil wrong has
been attended by aggravating circumstances.” Palmer, 684 P.2d at 213-14 (quotation
omitted); see also Wake v. SSC Greeley Centennial Operating Company, LLC, 991 F.
Supp. 2d 1143, 1149 (D. Colo. 2013) (finding that willful and wanton conduct was “a
contributing cause of the incident”); Coors, 112 P.3d at 65 (“[§ 13-21-102] requires that
punitive damages shall only be awarded in a civil action where the party asserting the
claim proves beyond a reasonable doubt that the injury sustained was attended by
42

circumstances of fraud, malice, or willful and wanton conduct” (emphasis added)).
Thus, the question is whether plaintiff’s injuries were attended by Jeg’s willful and
wanton conduct. See Palmer, 684 P.2d at 213-14.
Plaintiff argues that Jeg’s acted in a willful and wanton manner when it affixed an
SFI certification sticker over the NON SFI stamp. Docket No. 106 at 14. SFI tests only
internally balanced flexplates and does not therefore test the integrity of balance weight
welds. Docket No. 102-1 at 2, ¶ 6. Thus, according to plaintiff’s expert witness
Stephen Knapp, it is standard industry practice and approved SFI methodology to test
flexplates that do not have an external balance weight. Id. at 2, ¶ 7. If a flexplate
without an external balance weight has passed SFI testing, it is a common and
accepted practice in the industry to “certify the equivalent flexplate in its externally
balanced configuration as well. These externally balanced flexplates with SFI 29.1
certification are approved for use in NHRA sanctioned events.” Id. at 3, ¶ 11. However,
SFI Technical Manager Michael Hurst states that SFI “does not examine or test flex
plates with balance weights attached. It is the responsibility of the manufacturer to
ensure the strength of the welds attaching balance weights. SFI takes no position with
regards to such balance weights.” Docket No. 102-3 at 3, ¶ 11.
Jeg’s submitted an internally balanced flexplate to SFI for testing. Docket No.
102 at 6, ¶ 19. The flexplate passed and, because Jeg’s believed the internally
balanced flexplate to be a representative sample of its externally balanced flexplates, it
chose to affix an SFI certification sticker over the NON SFI stamp on the flexplate
model at issue. Docket No. 102 at 6-7, ¶¶ 19-20. Mr. Knapp states that the f act that a
flexplate has a balance weight does not alter the fact that the flexplate has been SFI
43

certified. Plaintiff substantially disputes only two of these facts. First, plaintiff argues
that, although Mr. Knapp states that it was common practice to affix an SFI certification
sticker to an externally balanced flexplate, Jeg’s has identified no evidence that SFI
authorizes or approves the practice of affixing an SFI certification sticker to an
externally balanced flexplate. Docket No. 106 at 4, ¶ 10. Second, plaintif f argues that
an internally balanced flexplate is not representative of an externally balanced flexplate
and, in support of his argument, cites the following portion of Mr. Smith’s deposition
testimony:
Q Okay. So the internal[] flexplate is not representative of an externally
balanced flexplate?
*

*

*

A I just – you know, that’s a wide open question.
Q . . . I need an answer.
A. No.
Docket No. 106-2 at 15, pp. 230:25-231:6. 18 Although the parties spend a great deal of
their briefs on this issue, suffice it to say, Jeg’s has not eliminated all genuine dispute of
fact or provided sufficient evidence for the Court to conclude, as a matter of law, that it
did not act reckless disregard in representing the flexplate as SFI certified. Moreover,
Jeg’s fails to address an additional aspect of its conduct. Master Craft stamped the
flexplates with a NON SFI designation because it believed the flexplates were not
suitable for racing and were not built to an SFI standard. Docket No. 106-1 at 3,

18

During the deposition, Jeg’s counsel objected to the question as vague. Jeg’s
has not reasserted that objection in the present m otion.
44

p. 131:5-24. In order for the flexplate to be suitable for racing, Mr. Haswell stated that
additional engineering analysis would need to be done. Id. at 3, p. 132:3-10. Jeg’s
admits to deliberately placing an SFI certification over the NON SFI disclaimer in order
to prevent consumers from seeing the NON SFI stamp. Docket No. 106 at 7, ¶¶ 12-14;
see also Docket No. 106-2 at 18, p. 246:11-24. Jeg’s concealed the NON SFI stamp
knowing that the manufacturer did not intend the flexplate for racing and without
knowing whether the welds on the balance weight were sufficient for racing. This
deliberate act of concealing the manufacturer’s stated warning that the flexplate not be
used for racing purposes is, by itself, a sufficient basis to conclude that Jeg’s conduct
was willful and wanton. See Coors, 112 P.3d at 66. Moreover, although Jeg’s believed
Autocraft to be the manufacturer of the flexplates and although Autocraft does not
appear to have objected to Jeg’s performing SFI testing on internally balanced
flexplates, see Docket No. 102 at 6, ¶¶14-18, Jeg’s provides no evidence that it sought
or received explicit approval from Autocraft to conceal the NON SFI designation on
externally balanced flexplates, thereby creating the possibility that such flexplates would
be used for racing in derogation of how Master Craft manufactured the flexplates. Jeg’s
does not identify any evidence indicating that it made any reasonable attempt to
ascertain the identity of the flexplates’ actual manufacturer or to ascertain whether the
flexplates had been engineered or manufactured to withstand use in a race vehicle.
Thus, there is evidence upon which a reasonable juror could conclude that Jeg’s
concealed the NON SFI designation in reckless disregard of the possibility that the
flexplates were not engineered or manufactured for racing use. Cf. Klingemann v.

45

Breg, No. 10-cv-01797-WJM-CBS, 2012 WL 1378640, at *6 (D. Colo. April 20, 2012)
(denying summary judgment on exemplary damages claim because genuine dispute of
fact existed as to whether defendant knew or should have known of risk of injury if
product was used in certain application). As discussed below, but for the SFI
certification sticker on the flexplate, plaintiff would not have been injured. Thus, a
reasonable juror could find that plaintiff’s injuries are attended by willful and wanton
conduct of Jeg’s.
In addition, plaintiff argues that Jeg’s acted in a willful and wanton manner with
respect to inspecting its flexplates. Jeg’s admits that it marketed the flexplates it sold
as “SFI approved for drag racing . . . . Final plate inspection guarantees customer
satisfaction. A final 100 percent inspection is performed before any flexplate is placed
in the packaging to assure total customer satisfaction.” Docket No. 106 at 5, ¶1; Docket
No. 118 at 3. However, Jeg’s admits that it did not test or inspect the externally
balanced flexplates it sold. Docket No. 106 at 6, ¶ 2; see Docket No. 106-2 at 6, p.
55:8-11 (“Q . . . Did Jeg’s perform any inspections on any externally balanced
flexplates that it sold? A No.”). 19 Jeg’s appears to argue that the marketing statement
is not a misrepresentation because the statement does not specify that Jeg’s would
itself perform an inspection. Docket No. 118 at 3, ¶ 1. Althoug h Mr. Smith testified that
Jeg’s relies “on the manufacturer as being [the] final inspection,” Docket No. 106-2 at 6,
p. 54:22-23, Mr. Smith later testified that Jeg’s did not inspect Autocraft’s (or, for that
matter, Master Craft’s) facilities and otherwise have any way of knowing what quality
19

Mr. Smith testified that, in 2012, Jeg’s may have begun examining the ring gear
on some flexplates, but he could not recall specifics. Id. at 7, pp. 58:19-60:25.
46

control standards the flexplate’s manufacturer was using. Id. at 16-17, pp. 240:17241:3. Moreover, Mr. Smith stated that he was not aware of any quality control that
Autocraft was performing on the flexplates, did not request quality control documents,
and that Jeg’s did not perform inspection testing for itself. Id. at 19-20, pp. 252:17253:10. As a result, a fact finder could conclude, beyond a reasonable doubt, that
Jeg’s willfully misrepresented that its flexplates underwent an inspection and recklessly
made no attempt to determine whether the flexplates were properly manufactured.
Moreover, had the flexplate been inspected as Jeg’s promised, there is evidence
that the defective balance weight welds could have been discovered. Mr. Skaggs
testified that a visual inspection of the flexplate at issue prior to installation would have
revealed to a capable inspector that the balance weight welds were improperly fused.
Docket No. 106-6 at 2-3, pp. 40:23-41:25. Jeg’s expert witness Stephen Knapp stated
that externally balanced weights may be spin tested according to the Society of
Automotive Engineers (SAE) standard J1240 Flywheel Spin Test Procedure for testing
flexplates with counterweights. Docket No. 106-8 at 8. Jeg’s arguments are insufficient
to justify granting summary judgment on this aspect of plaintiff’s exemplary damages
claim.
Jeg’s argues that plaintiff cannot claim that it was willful and wanton with respect
to its testing and inspection procedures because such conduct was not alleged in the
“Exemplary Damages” section of plaintiff’s amended complaint. Docket No. 118 at 9.
Jeg’s argument is without merit for two reasons. First, Jeg’s has not previously
challenged the sufficiency of the pleadings and the Court does not construe Jeg’s
motion for partial summary judgment as a Fed. R. Civ. P. 12(b) motion. Thus, the
47

question is whether plaintiff has stated a claim under Rule 56. See Flint ex rel. Flint v.
Kentucky Dep’t. of Corr., 270 F.3d 340, 348 (6th Cir. 2001). “The formal issues framed
by the pleadings are not controlling on a motion for summary judgment; the court must
consider the issues presented by the other material offered by the parties on the motion
to determine whether the Rule 56 request should be granted.” 10A Charles Alan Wright
et al., Federal Practice & Procedure § 2721 (3d ed. 2015); accord Flint, 270 F.3d at
348; Yates v. Transamerica Ins. Co., Inc., 928 F.2d 199, 202 (6th Cir. 1991); Marsh v.
Austin-Fort Worth Coca-Cola Bottling Co., 744 F.2d 1077, 1079 n.4 (5th Cir. 1984).
The Court is not therefore strictly bound by the facts alleged in the pleadings and can
appropriately consider additional facts in considering whether a reasonable juror could
find that plaintiff is entitled to exemplary damages. See 10A Charles Alan Wright et al.,
Federal Practice & Procedure § 2722 (3d ed. 2015) (noting that, at summary judgment,
the court “may evaluate the pleadings both in terms of their content at the time of their
submission and as they might be amended at some later date”). Second, the amended
complaint puts Jeg’s representations regarding its inspection procedures at issue. The
exemplary damages section of the amended complaint accuses Jeg’s of deceptively
marketing the flexplate, despite having never tested an externally balanced flexplate, by
placing an SFI certification sticker over the NON SFI stamp. See Docket No. 64 at 2829, ¶¶ 247-60. The amended complaint elsewhere alleges that Jeg’s represented that
flexplates undergo a final inspection. Docket No. 64 at 12, ¶ 111; Id. at 15, ¶ 139.
Thus, the amended complaint provided Jeg’s with sufficient notice that it could have to
defend its marketing representations as well as its testing and inspection procedures.

48

Jeg’s argues, without citation to the record, that its procedures were, on the
whole, in accordance with or did not fall below industry standards. Docket No. 102 at 2;
Docket No. 118 at 3, ¶ 2. Not only does Jeg’s fail to provide evidentiary support for
such an argument, compliance with industry standards is not, by itself, an appropriate
basis upon which to grant summary judgment. See Lambert v. Park, 597 F.2d 236, 239
(10th Cir. 1979) (noting that it is well settled that “proof of compliance with the
applicable ‘industry’ standard will not insulate a defendant from liability when the
standard itself is inadequate.”).
Jeg’s contends that, prior to the incident involving plaintiff, it was aware of only
one occasion where its flexplates’ balance weight welds failed. Docket No. 118 at 7,
¶ 18. However, the number of previous incidents with a particular product is but one
consideration in evaluating an exemplary damages claim. Cf. Rowan v. Vail Holdings,
Inc., 31 F. Supp. 2d 889, 900 (D. Colo. 1998) (“T here were several close calls with the
picnic deck before Rowan was killed, including a knee injury to a tester who tried to
avoid hitting the picnic deck. Vail did not add any protection to the deck, despite the
apparent man power and ability to do so.”). Moreover, a fact finder could find that even
a single prior incident was sufficient to place Jeg’s on notice of the problem.
Because there is sufficient evidence from which a reasonable jury could
conclude that plaintiff’s injuries were attended by Jeg’s willful and wanton conduct,
Jeg’s motion for summary judgment as to plaintiff’s exemplary damages claim is
denied.20
20

Because the Court concludes that a genuine issue for trial exists as to whether
Jeg’s conduct was wilful and wanton, the Court need not consider whether Jeg’s
49

B. Causation
Jeg’s argues that plaintiff’s negligence claim fails for lack of causation. Docket
No. 102 at 19. Jeg’s argues that the only action it took with respect to the flexplate was
attaching the SFI certification sticker and that, because plaintiff has not shown that the
SFI or racing use of the flexplate caused the balance weight to break loose, Jeg’s did
not cause plaintiff’s injuries. Docket No. 102 at 18-19. As discussed above, causation
is ordinarily a question of fact. Jeg’s has raised no evidence disputing that, but for the
Jeg’s representation that the flexplate was SFI certified, Mr. Savoya would not have
purchased the flexplate and, but for the flexplate’s SFI certification sticker, Mr. Savoya
would not have been permitted to operate his race vehicle at the Dragway. Thus, Jeg’s
conduct was a necessary component of the causal set that caused plaintiff’s injury.
See Reigel, 292 P.3d at 985. Mr. Cornelissen testified that higher rates of acceleration
could cause a higher load on the flexplate. Docket No. 101-8 at 2, p. 110:2-21.
Although this testimony lacks context, it lends minimal support to the proposition that
the racing use of the flexplate subjected it to additional stress. Thus, although plaintiff’s
injuries may have also been caused by an intervening force, namely, defective balance
weight welds, that intervening force does not, under the circumstances, relieve Jeg’s of
liability as a matter of law. Scharrel, 949 P.2d at 94. Moreover, Jeg’s does not
establish, as a matter of law, that plaintiff’s injuries were wholly unforeseeable or
outside the scope of risk created by its conduct.
Plaintiff argues that Jeg’s negligent conduct is not limited to its placement of an
conduct evidenced “circumstances of fraud.” See Amber Props, Ltd. v. Howard Elec. &
Mechanical Co., Inc., 775 P.2d 43, 46 (Colo. App. 1988).
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SFI certification sticker on the flexplate, but contends that Jeg’s negligently took no
steps to inspect or otherwise verify the integrity of the flexplate. Docket No. 106 at 19.
As discussed above, there is evidence that a visual inspection of the flexplate would
have revealed a defect in the balance weight welds. Although Jeg’s contends that its
conduct conformed with industry standards, Jeg’s contention is unsupported and not a
sufficient basis to dismiss plaintiff’s negligence claim.
For the above-stated reasons, Jeg’s has failed to establish a genuine dispute of
material fact as to the element of causation of plaintiff’s negligence claim. This aspect
of Jeg’s summary judgment motion will therefore be denied.
VI. CONCLUSION
For the foregoing reasons, it is
ORDERED that Master Craft’s Motion for Summary Judgment [Docket No. 101]
and Jeg’s Motion for Partial Summary Judgment Regarding Plaintiff’s Pursuit of
Exemplary Damages and Regarding Plaintiff’s Negligence Claim [Docket No. 102] are
DENIED. It is further
ORDERED that plaintiff’s Motion for Partial Summary Judgment [Docket No.
103] is GRANTED in part and DENIED in part as indicated in this order.

DATED September 18, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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