Mt Carmel Mutual Insurance Association v. CNH America LLC

Filing 72

ORDER: Denying 44 Motion for Summary Judgment: See text of Order for further information. Signed by Senior Judge Donald E O'Brien on 03/20/15. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MT. CARMEL MUTUAL INSURANCE
ASSOCIATION, as subrogee of
Jacob Kuker, insured,
Plaintiff,

No. 12-CV-4112-DEO

v.

ORDER ON MOTION FOR SUMMARY
JUDGMENT

CNH AMERICA, LLC,
Defendant.

____________________
I.

INTRODUCTION
Currently before this Court is Defendant, CNH America,

LLC’s [hereinafter CNH], Motion for Summary Judgment.
No. 44.
2015.

Docket

The parties appeared for a hearing on January 20,

Following the hearing, the Court gave each party seven

days to supplement the record, which they did.

After hearing

the parties’ arguments and reviewing their filings, the Court
took the issues under advisement and now enters the following.
II.

PROCEDURAL HISTORY
This case arises out of a fire that destroyed a piece of

farm equipment, a combine, owned by Jacob Kuker on October 29,
2010.
the

The Plaintiff is Mr. Kuker's insurance company.
fire

destroyed

Mr.

Kuker's

combine,

the

After

Plaintiff

reimbursed him for his loss.
the combine.

CNH American, LLC, manufactured

The Plaintiff alleges that a design defect

exacerbated the fire damage, and the Defendant is liable for
the damage caused by the design defect.
The Plaintiff originally filed this case as a state court
petition on September 17, 2012.

Docket No. 2.

The Defendant

accepted service on September 25, 2012, and filed an Answer on
October 23, 2012.

Docket No. 3.

Thereafter, the Defendant

served two discovery questions on the Plaintiff.
1, Ex. 4.

Docket No.

Mt. Carmel answered that none of its policy holders

and/or members are citizens of the state of Wisconsin or the
State of Delaware.

Docket No. 1, Ex. 4.

Notice of Removal on December 18, 2012.

CNH then filed a
Docket No. 1. On

January 9, 2013, the Plaintiff filed a Motion to Remand the
case back to state court.

Following a hearing, this Court

denied that Motion on February 22, 2013.

Docket No. 15.

After the Court’s Order, Docket No. 15, denying a remand
to state court, the parties engaged in a protracted round of
discovery

which

involved

several

disputes

and

deadline

extensions. First, the parties engaged in a discovery dispute
regarding a potential expert witness for the Plaintiff, which
2

U.S. Magistrate Judge Strand resolved.

See Docket No. 35.

The parties also disputed Plaintiff’s Motion for a Protective
Order regarding their expert witnesses, which U.S. Magistrate
Strand denied.

See Docket No. 43.1

Finally, the parties

disputed Plaintiff’s discovery request for documents related
to fuel tanks from CNH.

The Plaintiff ultimately filed a

Motion to Compel, which U.S. Magistrate Judge Strand granted.
See Docket No. 63.
The

Defendant

filed

the

Judgment on October 1, 2014.

present

Motion

Docket No. 44.

filed a Resistence on November 26, 2014.

for

Summary

The Plaintiff

Docket No. 62.

The

Defendant filed a Reply Brief on December 8, 2014. Docket No.
64.

The Court held a hearing on January 20, 2015.

Following

the hearing, the Plaintiff filed a supplemental resistance on
January 28, 2015.

Docket No. 70.

The Defendant filed a

supplemental reply on February 3, 2015.
III.

Docket No. 71.

FINDINGS OF FACT
Many of the facts in this case are undisputed.

above, this case about a combine fire.
1

As stated

Mr. Jacob Kuker

The parties subsequently agreed to a joint protective
order regarding CNH’s produced discovery materials.
See
Docket No. 54.
3

manages a very large farming operation in rural Iowa and
Nebraska.

Mr. Kuker bought a 2009 CASE IH 8120 combine

[hereinafter the combine], manufactured by the Defendant in
July 2009.

There is no dispute that the combine was produced

by Defendant CNH.
Mr. Kuker was using the combine for normal agricultural
purposes in October, 2010.
October 28, 2010.

Mr. Kuker used the combine on

The machine was cleaned that evening.

Mr.

Kuker was again using the combine the next day, October 29,
2010, a dry day, in rural Monona County, Iowa.

There is no

evidence that the combine was cleaned on the 29th.
noon that day, the combine caught fire.2

At around

Mr. Kuker retrieved

a fire extinguisher and attempted to put the fire out but was
unable to. Mr. Dietrich Kuker, Mr. Jacob Kuker’s brother, was
farming

along

department.
fire.

with

his

brother,

and

called

the

Mr. Dietrich Kuker then began videotaping the

The video reveals that the fire quickly spread and

consumed the combine.

Although the fire department arrived

and extinguished the fire, the combine was a total loss.

2

fire

The underlying cause of the fire is disputed.
4

Following
$377,076.00

the

under

fire,
the

the

Plaintiff

applicable

paid

insurance

Mr.

policy.

Kuker
The

Plaintiff now seeks to recover damages from the Defendant, as
a subrogee of Mr. Kuker, for a design defect in the combine.
It is undisputed that the combine has a plastic fuel tank
which contained nearly 200 gallons of the appropriate type of
diesel fuel.

During the fire, the plastic fuel tank melted,

which released the diesel fuel from the tank into the fire.
The fuel acted as an accelerant for the fire.

The metal oil

tank on the combine survived the fire.
As indicated above, the Plaintiff’s case is that the
Defendant negligently designed the combine. Specifically, the
Plaintiff argues that the combine’s design was defective
because CNH designed the combine with the above mentioned
plastic fuel tank. (Plaintiff alleges a metal fuel tank would
have been the non-negligent alternative.)

The Defendant

argues that including a plastic fuel tank on the combine was
a reasonable design.

The facts related to the plastic fuel

tank versus mental fuel tank debate are in dispute, and will
be discussed in greater detail below.

5

IV.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if the record shows

“there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
R. Civ. P., Rule 56(c).

Fed.

A fact is material if it is necessary

“to establish the existence of an element essential to [a]
party’s case, and on which that party will bear the burden of
proof at trial.”
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322

There is a genuine issue as to a material fact if,

based on the record before the court, a “rational trier of
fact” could find for the non-moving party.

Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
When considering a motion for summary judgment, a “court
must view the evidence in the light most favorable to the
nonmoving party . . . .”

Hutson v. McDonnell Douglas Corp.,

63 F.3d 771 (8th Cir. 1995).

This requires a court to draw

any reasonable inference from the underlying facts in favor of
the nonmoving party and to refrain from weighing the evidence,
making credibility determinations, or attempting to discern
the truth of any factual issue in a manner which favors the
6

moving party unless there is no reasonable alternative.
Matsushita,

475

U.S.

at

587;

and

Morris

v.

City

See
of

Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citing
Thomas v. Corwin, 483 F.3d 516, 526-27 (8th Cir. 2007)).
Procedurally, the movant bears the initial burden “of
informing the district court of the basis for its motion and
identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th
Cir. 1992) (citing Celotex, 477 U.S. at 323). Once the movant
has carried his burden, the non-moving party is required “to
go beyond the pleadings” and through “affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a
genuine issue for trial.’”

Celotex, 477 U.S. at 323 (citing

Fed. R. Civ. P. 56(e)).
V.

ISSUES
Defendant’s Motion for Summary Judgment has two main

issues. First, the Defendant argues that Plaintiff has failed
to allege adequate facts to maintain a cause of action for
design

defect.

Second,

the

Defendant

argues

that

the

Plaintiff, through Mr. Kuker, was at fault for the fire,
7

because Mr. Kuker failed to properly clean the combine.

The

Court will consider these issues below.
VI.

ANALYSIS
A.

Design Defect

The first issue regards the Plaintiff’s claim that the
Defendant’s design for the combine was defective.

In its

Motion for Summary Judgment, the Defendant argues that the
Plaintiff has failed to allege adequate facts to support a
design defect claim.
The parties agree that this cause of action for design
defect is controlled by Iowa law.

In Iowa, the Restatement

(Third) of Torts: Product Liability Sections 1 and 2, applies
to product defect cases.

See Wright v. Brooke Grp. Ltd., 652

N.W.2d 159, 169 (Iowa 2002), stating, “[i]n summary, we now
adopt

Restatement

(Third)

of

Torts:

Product

sections 1 and 2 for product defect cases.”

Liability

The relevant

provision concerning design defect provides, “A product... is
defective in design when the foreseeable risk of harm posed by
the product could have been reduced or avoided by the adoption
of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of
8

distribution, and the

omission

of

the

alternative design

renders the product not reasonably safe.”

Id. at §2(b).

Thus, in order to support a defective design claim:
a plaintiff must demonstrate that the harm
posed by the product could have been
reduced or avoided by the adoption of a
reasonable alternative design. See id. If
the court concludes that the plaintiff has
presented sufficient evidence ‘so that
reasonable persons could conclude that a
reasonable alternative could have been
practically adopted,’ the issue becomes one
for the trier of fact. See Id. § 2 cmt. f.
The Products Restatement does not require
a plaintiff to ‘produce a prototype in
order to make out a prima facie case.’ Id.
Instead, ‘qualified expert testimony on the
issue suffices ... if it reasonably
supports the conclusion that a reasonable
alternative
design
could
have
been
practically adopted at the time of sale.’
Id.
Advance

Brands,

LLC.

v.

Alkar-Rapidpak,

Inc.,

No.

08-CV-4057-LRR, 2011 WL 1790143, at *20 (N.D. Iowa 2011).
Accordingly,

to

support

a

design

defect

claim,

the

Plaintiff must present relevant, reliable expert testimony
that the fuel tank was defective, including:

a reasonable,

safer alternative design existed at the time of manufacture;
and the defective fuel tank was a substantial factor in
causing enhanced damages to the Combine.
9

In arguing that the

Plaintiff has failed to do so, the Defendant cites Cummings v.
Deere & Co., 589 F. Supp. 2d 1108, 1118 (S.D. Iowa 2008).

In

that case, which also involved a combine fire, Senior Judge
Longstaff for the Southern District of Iowa, stated that:
Iowa law (under the Restatement) does not,
in all instances, require expert testimony
in a products liability case to generate a
jury issue. See Benedict v. Zimmer, Inc.,
405 F. Supp. 2d 1026, 1032 (N.D. Iowa 2005)
(quoting Reed v. Chrysler Corp., 494 N.W.2d
224, 226–27 (Iowa 1992)) (noting that ‘when
the issues presented relate to matters
which require only common knowledge and
experience
to
understand
them,
the
testimony of experts is not essential.’).
However, ‘[w]hether expert testimony is
required ultimately depends on whether it
is a fact issue upon which the jury needs
assistance to reach an intelligent or
correct decision ... [D]esign defect cases
sometimes involve technical, scientific
issues which cannot be fully understood by
the average juror without some expert
assistance.
In
such
cases,
expert
testimony as to the defective nature of
defendant's design will be an indispensable
element of plaintiff's case.’ Id.
Cummings, 589 F. Supp. 2d at 1118.

Judge Longstaff went on to

say that in the Cummings case, the issues were sufficiently
technical that expert testimony was required.

Because the

Cummings’ plaintiff did not have sufficient expert testimony,
Judge Longstaff dismissed the case. CNH implies that the same
10

analysis applies here:

because the Plaintiff has failed to

proffer sufficient expert testimony regarding the alleged
design defect, this Court should dismiss the case.
At the outset, the Court notes that the issue in the
present case is different from the issue in the Cummings case.
Although both cases related to combine fuel tank fires, the
Cummings case dealt with static electric shocks from fuel
tanks as potential fire sources, while the present case deals
with the material used to construct fuel tanks and fuel tank
durability during fires.

That distinction aside, both the

Plaintiff and the Defendant in the present case agree that
some amount of expert testimony is necessary to prove the
Plaintiff’s claim.

Thus, the argument currently before the

Court is not so much whether expert opinion is necessary, but
rather, has the Plaintiff produced sufficient expert evidence
regarding the design defect?
In arguing the Plaintiff has failed to produce such
evidence, the Defendant first argues that the Plaintiff’s
expert witnesses do not identify a specific defect in the
combine’s design.

Specifically, the Defendant states that:

11

[n]either [Plaintiff’s expert Duane] Wolf
or [Plaintiff’s expert Larry] Wyatt opine
that the fuel tank was defective.
Mr.
Wolf, Plaintiff’s design defect expert,
simply opines that the polyethylene fuel
tank was a contributing cause of the
extensive damage suffered by the Combine.
Yet, it is undisputed that many different
components
of
the
Combine
were
a
contributing cause in feeding the fire. In
addition, the simple fact that a fire
occurred does not demonstrate that the
Combine was defective. [Housley v. Orteck
Int'l, Inc., 488 F. Supp. 2d 819, 828 (S.D.
Iowa 2007)]. Further, Mr. Wolf does not
opine that a polyethylene fuel tank
presented a foreseeable risk of harm that
a small fire would inevitably lead to the
complete destruction of the Combine. Nor
does Mr. Wyatt, a second liability witness
designated by Plaintiff, offer any opinions
on the design of the fuel tank. When asked
whether he intended to offer any opinions
that the Combine was defective because it
included a polyethylene fuel tank, Mr.
Wyatt refused to offer an opinion that the
fuel tank was defective.3
Docket No. 44, Att. 1, p. 9.
The Plaintiff responds that:
CNH claims that summary judgment is proper
because Mt. Carmel’s experts do not opine
3

Duane Wolf is an independent mechanical engineer
retained by the Plaintiff. Larry Wyatt is an agricultural
engineer and senior investigator for a parent insurance
company. Mr. Wolf’s deposition is located at Docket No. 62,
Att. 3, p. 20; and Mr. Wyatt’s deposition is located at Docket
No. 62, Att. 3, p. 26.
12

that the fuel tank of the combine was
defective.
This logic is wrong both
because Mt. Carmel’s experts do argue that
CNH’s choice to use a poly fuel tank is a
defect but more importantly because it is
not the plaintiff’s expert that establishes
whether there is a product defect but
rather the jury... the legal requirement
is that the jury apply the risk-utility
balancing test and decide whether a
reasonable alternative design would reduce
the foreseeable risks of harm posed by the
product. [Wright, 652 N.W.2d at 169.]...
Many factors go into the risk-utility
balancing test, which is traditionally
found in a negligence standard...
[A]
plaintiff is not required to necessarily
introduce evidence of all of these factors.
And how these factors interact with the
other factors is different in each case...
How the factors interact with one another
and apply in the balancing test is a
question of fact for the jury when deciding
if the product contains a design defect...
Docket No. 62, Att. 1, p. 10-11.
The Court is persuaded that the Plaintiff is correct.
The Plaintiff’s experts clearly challenged the design of the
plastic fuel tank.

Specifically, Mr. Wolf states:

[t]he construction of the poly fuel tank of
the subject
combine is a contributing
cause of the extensive damage suffered by
this combine as a result of this fire loss.
If
the subject fuel tank had been
constructed of alternative materials, as
many fuel tanks had been constructed for
years, this fire loss may not have
developed as quickly and subsequently some
13

of the damage would [have] been avoided due
to the slower progression of the fire. At
least one combine manufacturer, John Deere,
has changed their fuel tank design to an
alternative (non-poly) construction, and
this
would
have
been
a
reasonable
alternative design for this combine.
Docket No., Att. 3, p. 53.

Mr. Wyatt opined that he had

“experience with previous [combines] and [] combines [] with
the old design of a steel tank, I never saw one of those
combines have a fuel tank failure where the contents of the
diesel fuel were released and spilled on the ground.”
No. 62, Att. 3, p. 26.

Docket

There is also evidence regarding

competitor combines, such as John Deere, and the type of fuel
tanks those combines have.
not

the

exact

phrasing

Although the experts’ language is

found

in

the

Restatement,

it

is

sufficient to get the Plaintiff past the summary judgment
stage.

Accordingly, based on the expert evidence discussed

above, the Plaintiff has created an issue of fact over a
possible

design

defect

in

the

combine’s

fuel

tank.

To

determine whether the plastic fuel tank was in fact a design
defect is a question for the finder of fact.

14

The Defendant’s second argument is that the Plaintiff’s
experts do not provide a reasonable, safer alternate design.
As noted above, to survive summary judgment, the Plaintiff
must use expert evidence to create a genuine issue of material
fact out of which reasonable persons could conclude that a
reasonable alternative could have been practically adopted.
In this case, the Plaintiff’s claim is that the combine should
have been equipped with the a metal fuel tank.
The Defendant argues that, “Plaintiff lacks any evidence
that an aluminum, steel, or metal fuel tank was practical or
feasible.

In fact, Mt. Carmel’s design defect expert failed

to remotely consider, test, or evaluate whether his proposed
alternative designs were practical or feasible.
Wolf recognizes that there are a number of
an

Further Mr.

disadvantages to

aluminum, steel, or metal fuel tank as well as advantages

to a plastic, or polyethylene, fuel tank.”
Att. 1, p. 11.

Docket No. 44,

Regarding Mr. Wyatt’s opinion, the Defendant

states, “[s]imilarly, Mr. Wyatt’s only basis for concluding
that a metal, steel, or aluminum fuel tank is a reasonable
safer alternative design is his vague reference to previous
combine fire investigations.

Mr. Wyatt does not offer any
15

opinion as to the practicality or feasibility of using a
metal, steel, or aluminum fuel tank in today’s combines and
did not conduct any testing or analysis that supports his
conclusions.”

Id.

The Defendants also discuss, at some

length, the (alleged) advantages of using a plastic fuel tank.
The Plaintiff contends that their burden is limited to
putting forth an alternative design that a jury could find to
be reasonable.

Specifically, a plaintiff “is... not required

to create, design or test a proposed alternative design.

[In

this case], ample evidence in the form of the expert reports
of Duane Wolf, the deposition testimony of Wolf and Larry
Wyatt, and the evidence that the main competitor of CNH, John
Deere, had switched to using an aluminum fuel tank instead of
a poly fuel tank establishes that using a metal fuel tank was
a feasible reasonable alternative design.”
Att. 1, p. 12.

Docket No. 62,

Mr. Wolf specifically addressed the alternate

design issue and stated:
the extent of my reasonable alternative
design offering would be – aluminum would
be one. John Deere is currently offering
that on their combines. A steel fuel tank
would be another one.
Fuel tanks were
steel before the polyethylene came into
prominence for fuel tank construction, and
at that point in time – so you have got
16

three different products, and it’s really
a
progression.
Qualitatively,
a
polyethylene tank is going to weaken and
compromise at a lower temperature – at the
lowest temperatures. Aluminum is going to
melt at about 1,200 degrees Fahrenheit. So
it’s going to last a – it’s going to last
longer than poly qualitatively. Steel will
melt at about 2,500 degrees Fahrenheit. It
will soften or weaken at a temperature less
than that.
So steel is going to last
longer than aluminum qualitatively. It’s
really a progression in terms of what
material is selected, but in terms of which
one is going to be damaged the quickest,
it’s going to be the poly.
Docket No. 62, Att. 3, p. 24.

The Plaintiff also points that

both Mr. Wyatt and Jim Lucus, one of the Defendant’s own
experts, provide evidence regarding metal fuel tanks and the
fact that John Deere uses them.
Based on that testimony, the Court is persuaded that the
Plaintiff proffered enough evidence to create a fact issue
regarding

a

reasonable

alternate

design.

The

Defendant

strenuously argues that Plaintiff’s evidence is insufficient,
specifically attacking Plaintiff’s reference to John Deere’s
combine

design.

As

set

out

in

their

Reply

Defendant argues that the “Plaintiff... fails

to

Brief,

the

establish

the reasonableness of [John Deere’s] design or that the [John
Deere] combines are substantially similar to the design of the
17

subject

Combine.”

Defendant’s

Docket

argument

No.

really

64,

goes

p.

to

5.
the

However,

the

sufficiency

of

Plaintiff’s evidence, and that question, weighing whether the
evidence is sufficient, is for the trier of fact.

The Court

does not dispute that Plaintiff’s alternate design could be
developed

in

greater

detail.

But,

to

survive

summary

judgment, the Plaintiff need only present evidence that a jury
could

rely

on

to

find

a

reasonable

alterative,

and

the

Plaintiff has presented that evidence.
Finally, the Defendant argues that the Plaintiff has
failed to prove that the fuel tank design was a substantial
factor in enhancing the damages to the combine.

Put another

way, the Defendant argues that the Plaintiff has failed to
show that the alternate design would have eliminated the
damages.
There is no question that a fire destroyed the combine
and it is (relatively) undisputed that the diesel fuel spilled
out of the fuel tank and accelerated the fire/destruction.
The

Plaintiff’s

basic

enhanced

damages

argument

is

that

plastic melts fast, metal melts slow, and that if the combine
had a metal fuel tank, the tank would not have melted during
18

the fire and, thus, the diesel fuel would not have spilled
into the fire.

In short, the question is:

would things have

been different if the combine had a metal fuel tank?
The Defendant argues that:
[a]n essential prima facie element of a
design defect claim is that the alternative
design would have reduced or prevented Mt.
Carmel’s damages... In fact, according to
both Mr. Wyatt and Mr. Wolf, a John Deere
aluminum fuel tank, when involved in a
fire, can explode and result in a total
loss of the combine. Yet, in his expert
report, Mr. Wolf speculates that the fire
may not have developed as quickly and some
of the damage could have been avoided.
Pure
speculation
is
fatal
to
the
admissibility of an expert opinion. Group
Health Plan, Inc. v. Philip Morris USA,
Inc., 344 F.3d 753, 760 (8th Cir. 2003)...
Further, Mr. Mertens [one of CNH’s experts
stated that] “[t]he fuel tank involvement
was irrelevant to the end result, which
would have been total destruction due to
involvement of combustible items higher up
on the machine affecting the engine
compartment and cab areas.”
Docket No. 44, Att. 1, p. 13-14.
In response, the Plaintiff points to the evidence it
believes could show that not using the alternate design
enhanced the damages.

The Plaintiff deposed CNH’s engineer

Jimmy Clifford, who gave a tortured admission that plastic may
melt quicker than metal.

Docket No. 62, Att. 3, p. 62.
19

Additionally, as discussed above, Mr. Wolf clearly opined that
the plastic fuel tank would melt quicker than a metal fuel
tank.

The

Plaintiff

also

points

to

the

fact

that

the

combine’s metal oil tank survived the fire, while the plastic
fuel tank did not.

Finally, the Plaintiff notes that the

video of the fire shows that after the fuel tank ruptured, the
combine was quickly consumed by the fire. (Whether or not the
fuel tank rupture appears obvious to the untrained eye, both
Mr. Wolf and Mr. Wyatt opined that the video showed the fuel
tank rupturing and the fire getting worse.)
In its Reply Brief, the Defendant suggests that the
Plaintiff misunderstands the law by relying on non-expert
opinion to show enhanced damages. As stated by the Defendant:
Plaintiff cites Advance Brands for the
proposition that no expert testimony is
necessary “when the feasibility of a
reasonable alternative design is obvious
and
understandable
to
laypersons.”
According to Plaintiff, “it does not
require advanced degrees or specialized
knowledge to know that metal is not
compromised as quickly in a fire as
plastics.” However, Plaintiff misses the

20

point and
Brands.

completely

misquotes

Advance

Docket No. 64, p. 2.
As discussed above, there is no dispute that some expert
opinion is necessary in a design defect case.

However, that

requirement does not mean each and every point of fact must be
supported by expert testimony. It is within the general realm
of knowledge to know that some materials melt faster than
others.

Accordingly, the Plaintiff does not misstate the law

to say that some obvious facts may be discernable to lay
persons. (A child sitting around a camp fire understands that
he needs to put his marshmallow on something sturdy like a
stick or a piece of metal or risk losing the confection to the
flames.)

What does require expert testimony is how a fact,

which may be obvious to a lay person, affects the damage in a
given case.
The Defendants correctly point out that mere speculation
is not enough to survive summary judgment.

However, the

Plaintiff has provided more than mere speculation.

The

Plaintiff has provided expert opinion on this issue.

The

evidence, cited above, supports with the Plaintiff’s argument
that using the plastic fuel tank resulted in a faster, more
21

destructive fire.

Accordingly, the Plaintiff has met its

burden to create a genuine issue of fact.

Whether the

opinions and evidence cited above is sufficient to prove that
the plastic fuel tank enhanced the Plaintiff’s damages is a
question of fact that must be left for trial.
Based on the evidence discussed above, the Court is
persuaded that Plaintiff has alleged sufficient facts to
create a fact issue on whether the combine’s plastic fuel tank
enhanced the damages. Accordingly, the Defendant’s Motion for
Summary Judgment must be denied.
B.

Comparative Fault

The Defendant’s second argument is based in comparative
fault.

The Defendant argues that the fire was caused because

Mr. Kuker failed to properly clean and maintain the combine.
The Defendant contends that because the fire was a result of
Mr. Kuker’s negligence, Mr. Kuker is more than 50% at fault
for the damage from the fire and is thus barred from recovery.
The

parties

agree

that

comparative fault doctrine.

Iowa

has

adopted

a

modified

I.C.A. § 668.1, et seq.

If a

plaintiff is more than 50% at fault, a plaintiff is barred
from any recovery.

I.C.A. § 668.3.
22

Iowa’s comparative fault

doctrine applies not only to cases involving negligence, but
also to cases involving product defect claims.

I.C.A. §

668.1; Jahn v. Hyundai Motor Co., 773 N.W.2d 550, 560 (Iowa
2009).

Recently, the Iowa Supreme Court extended application

of the comparative fault doctrine to enhanced injury product
defect claims.

Jahn, 773 N.W.2d at 560-61.

“[I]n enhanced

injury cases, the legislature has directed that the causal
relation between the conduct of a product manufacturer and the
resulting damages is one of the two elements to be considered
in assigning a percentage of liability, but it is not solely
determinative as to the allocation of fault.”

Id. at 560.

Rather, the Plaintiff’s conduct must also be taken into
consideration.
With that law in mind, the Defendant argues:
Mr. Kuker’s Combine was dirty – meaning
that Mr. Kuker failed to properly clean and
maintain the Combine.
The
parties
conducted a dual inspection of the Combine
on December 16, 2009, approximately a month
and a half after the fire.
During that
time period, the Combine was sitting in the
field, completely exposed to the elements,
including wind, rain, and snow.
Yet,
despite its exposure to the intense Iowa
winter, there was a considerable amount of
crop debris still evident on the Combine at
the time of the inspection... Crop debris
that survived not just the weather, but
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also the intense fire. In addition to the
excessive debris accumulation, the Combine
was simply beat up. There was evidence of
broken chopper blades... and dents and
holes in the engine compartment floor
pan...
And, unlike Plaintiff’s experts,
CNH’s expert was able to determine a cause
of the fire: ignition of accumulated crop
debris, which was found to be considerably
built up on the Combine.
“There was
considerable evidence of crop debris
accumulation in numerous areas, surfaces,
and
locations
including
the
engine
compartment – where every witness first
observed the fire – frame, chopper shaft
enclosure, and adjacent surfaces.” Due to
the excessive amount of crop debris
accumulated on the Combine, Mr. Kuker’s
early attempts to extinguish the fire were
unsuccessful. “The extent of crop debris
seen on this combine indicated that
cleaning was insufficient.”
CNH has set
forth ample evidence to support its
affirmative defense that the fire was
caused by Mr. Kuker’s own negligence.
In fact, it is undisputed that Mr.
Kuker’s
own negligence caused the fire.
Mt. Carmel cannot set forth any admissible
evidence that Mr. Kuker properly cleaned
and maintained his Combine. As such, Mt.
Carmel’s design defect claim is barred
pursuant to Iowa’s comparative fault
doctrine and summary judgment in favor of
CNH is appropriate.
Docket No. 44, Att. 1, p. 15-16.

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The Plaintiff responds that:
[w]hether Jacob Kuker was negligent in
maintaining the combine and whether such
negligence, if any did exist, contributed
to the damages is a question of fact that
the jury must resolve...
CNH cannot
prove that the undisputed facts are that
Jacob Kuker was at fault for the damage or
even that he was more at fault than CNH.
Rather, the evidence is that Jacob Kuker
acted reasonably in maintaining his combine
and was not negligent. At minimum this is
a disputed question of fact. Jacob Kuker
testified that the combine was cleaned the
night before the incident. J. Kuker Dep.
84:13-19, Pl’s App. 8.
The combine was
generally cleaned off every night except if
they got rained out or finished a field
early that day. J. Kuker Dep. 69:16-70:10,
Pl’s App. 5-6.
The approximately twenty
minute cleaning involved using a truck
mounted air compressor to thoroughly blow
off all dust and debris from the combine.
J. Kuker Dep. 69:16-75:4, Pl’s App. 5-7.
CNH’s engineer Lucas acknowledged that
combines operate in dusty dry conditions
and that finding crop debris on a combine
that has been operating can occur. Lucas
Dep. 143:4-17, Pl’s App. 35. Lucas also
testified that despite the best design and
the best efforts to remove crop debris from
the combine that some conditions will still
cause crop debris to build up. Lucas Dep.
148:5-11, Pl’s App. 36.
Lucas was also
aware that some dealers and customers have
complained to CNH that despite their best
efforts to clean the combine there were
areas
on
the
combine
that
were
inaccessible...
Docket No. 62, Att. 1, p.

25

The Plaintiff is correct. Unlike the prior section, this
argument

requires

argument

is

no

simple:

complex
Mr.

negligence caused the fire.
that, an argument.

analysis.

Kuker

was

The

Defendant’s

negligent

and

that

However, that argument is just

The Defendant relies on pictures (some

included in its brief) and expert testimony to show that the
combine was covered in debris and that debris led to the fire.
However, there is no way the Court can conclude - as a matter
of law - that Mr. Kuker’s negligence contributed to the fire.
As the Plaintiff points out, there is a dispute as to the
cause of the fire.

While the Defendant’s expert states that

the fire was caused by the lack of cleaning, the Plaintiff’s
expert says the cause of the fire was undeterminable.

The

Defendant argues that the combine was clearly dirty.

The

Plaintiff

the

argues

that

Mr.

Kuker

properly

maintained

combine, cleaned it the night before the fire, and that it is
generally acknowledged that there are areas on these combines
that

are

inaccessible

for

cleaning.

These

are

factual

disputes. The jury must weigh this evidence and testimony and
determine what caused the fire, and who, if anyone, is at

26

fault.

Accordingly,

the

Defendant’s

Motion

for

Summary

Judgment must be denied.
VII.

CONCLUSION
For the reasons set out above, the Defendant’s Motion for

Summary Judgment, Docket No. 44, is DENIED.
IT IS SO ORDERED this 20th day of March, 2015.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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