Allen et al v. C & H Distributors L L C et al

Filing 87

MEMORANDUM RULING re 71 MOTION for Partial Summary Judgment filed by C & H Distributors L L C, Travelers Property Casualty Co of America, K K America Corp, 72 MOTION for Partial Summary Judgment filed by Ergocraft Contract Solutions, Great American Insurance Co. Signed by Judge S Maurice Hicks on 08/22/2013. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT
HELEN C. ALLEN, ET AL.

CIVIL ACTION NO. 10-1604

VERSUS

JUDGE S. MAURICE HICKS, JR.

C & H DISTRIBUTORS, LLC, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court are two Motions for Partial Summary Judgment. See Record
Documents 71 & 72. The first motion was filed by Defendants C&H Distributors, LLC
(“C&H”), K+K America Corporation (“K+K America”), and Travelers Property Casualty
Company of America (“Travelers”). See Record Document 71. The second motion was
filed by Defendants Ergocraft Contract Solutions (“ECS”) and Great American Insurance
Company (“Great American”). See Record Document 72.
In both motions, Defendants ask the Court to resolve legal issues relating to the law
applicable to this case. See Record Documents 71 & 72. More specifically, they ask the
Court to hold that Louisiana’s law of pure comparative fault, and not solidary liability,
applies to this Louisiana Products Liability Act (“LPLA”) case. See id.
Plaintiffs Helen Allen and Robert Allen opposed the motions; yet, they concede that
principles of comparative fault, without solidary liability, apply to cases governed by the
LPLA. See Record Document 78. Plaintiffs seem to argue that the relief requested by
Defendants is improperly sought under Federal Rule of Civil Procedure 56. See id. For
the reasons which follow, the Motions for Partial Summary Judgment (Record Documents
71 & 72) are GRANTED.

BACKGROUND1
Plaintiffs filed this action seeking damages for injuries Helen Allen allegedly suffered
when a stool on which she was sitting broke and caused her to fall. See Record Document
72-1 at ¶ 1. Plaintiffs allege that a number of defendants were involved in manufacturing
the allegedly defective stool, and they seek damages from them under the LPLA. See id.
at ¶ 2.
Plaintiffs claim that Defendants C&H and K+K America labeled the stool as their own
and held themselves out to be the manufacturers of the stool. See id. at ¶ 3; Record
Document 1 at ¶ 15. Plaintiffs also allege that Defendant ECS had a part in manufacturing
the stool because it had a tag under the seat indicating that it had been manufactured by
ECS. See Record Document 72-1 ¶ 4; Record Document 1 at ¶ 11.
In their Answers, Defendants C&H, K+K America, Travelers, ECS, and Great
American deny Plaintiffs’ allegations.

See Record Document 72-1 at ¶ 5; Record

Document 3; Record Document 31. Defendants further assert that, to the extent Plaintiffs
prove they have any liability for the alleged injuries, the defense of comparative negligence

1

The instant motions present pure legal determinations. The Court need not, and
has not, engaged in fact finding to decide the issues presented. The facts are referenced
simply to frame the issues set forth in the motions.
More specifically, the Court makes no determination as to the allocation of fault and
no determination as to which defendants or third party defendants, if any, qualify as
manufacturers under the LPLA. Instead, this Court will simply determine if comparative
fault principles apply to the instant matter. See Record Document 81 at 4 (“Again, this
misconstrues the relief sought by C&H. C&H seeks a partial summary judgment from the
Court on the issue of the applicable law: whether pure comparative fault, without solidarity,
applies between multiple parties who qualify as ‘manufacturers’ under the LPLA.”); Record
Document 82 at 4 (“ECS and Great American’s motion simply asks the court to rule that
comparative fault will be applied – not to apply it. The motion does not request a ruling as
to the extent that fault with be allocated – only that it will.”).
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applies such that each party will be held liable only for the percentage of fault caused by
that party. See Record Document 72-1 at ¶ 6; Record Document 3; Record Document 31.
Defendants also filed Third Party Demands against Tung Dah Enterprise Co., LTD. (“TDE”)
and Sheng Xiang Steel Pipe Industrial Co., Ltd. (“SXS”). See Record Documents 55 & 58.
TDE and SXS are two Taiwanese companies that Defendants contend were responsible
for the design, fabrication, manufacture and/or assembly of the subject stool, ostensibly
making them “manufacturers” under the LPLA. See id.
Plaintiffs now seem to concede that principles of comparative fault, without solidary
liability, apply to cases governed by the LPLA. See Record Document 78 at 1. However,
the record reflects that this legal issue was not always settled amongst the parties, as the
Court set a date certain deadline in October 2012 for motion practice relating to
comparative fault/solidary liability:
January 31, 2013

8(a). MOTION FOR PARTIAL SUMMARY
JUDGMENT
– Issue: Whether manufacturers under Louisiana
Products Liability Act are solidarily liable?

Record Document 67 at ¶ 8(a). Defendants timely filed the instant motions pursuant to this
deadline.
ANALYSIS
I.

Partial Summary Judgment Standard.
Rule 56(a) provides, in pertinent part:
Motion for Summary Judgment or Partial Summary Judgment. A party may
move for summary judgment, identifying each claim or defense--or the part
of each claim or defense--on which summary judgment is sought. The court
shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
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matter of law.
F.R.C.P. 56(a) (emphasis added)2; see also Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir.2010).3 “Rule 56[(a)] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Patrick v. Ridge, 394
F.3d 311, 315 (5th Cir.2004). If the movant demonstrates the absence of a genuine
dispute of material fact, “the nonmovant must go beyond the pleadings and designate
specific facts showing that there is a genuine [dispute] for trial.” Gen. Universal Sys., Inc.
v. Lee, 379 F.3d 131, 141 (5th Cir.2004). Where critical evidence is so weak or tenuous
on an essential fact that it could not support a judgment in favor of the nonmovant, then
summary judgment should be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536,
540 (5th Cir.2005). The Fifth Circuit has cautioned that “conclusory allegations, speculation,
and unsubstantiated assertions are inadequate to satisfy” the nonmovant’s burden in a
motion for summary judgment. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002).
“A partial summary judgment order is not a final judgment but is merely a pre-trial
adjudication that certain issues are established for trial of the case.” Streber v. Hunter, 221

2

The Advisory Committee Notes reflect that subsection (a) was amended in 2010
“to make clear at the beginning that summary judgment may be requested not only as to
an entire case but also as to a claim, defense, or part of a claim or defense” and “the
common phrase ‘partial summary judgment’” was added.
3

The Court notes that amended Rule 56 requires that there be “no genuine dispute
as to any material fact,” but this change does not alter the Court’s analysis. F.R.C.P. 56(a)
and Advisory Committee Notes.
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F.3d 701, 737 (5th Cir. 2000). Partial summary judgment serves the purpose of rooting out,
narrowing, and focusing the issues for trial. See Calpetco 1981 v. Marshall Exploration,
Inc., 989 F.2d 1408, 1415 (5th Cir. 1993).
Here, Defendants ask for a pretrial determination of whether Louisiana’s
comparative fault regime, as compared to solidary liability, is applicable to the instant
matter. In other words, Defendants are seeking a determination of the law applicable to
this products liability case. See American Guarantee & Liability Ins. Co. v. Anco Insulation,
Inc., Nos. 02-987A1, 02-990A1, 2005 WL 1865552, *5 (M.D.La. July 29, 2005). “Amended
Rule 56(a) expressly contemplates pretrial adjudication of particular issues within a claim
or defense on a motion for partial summary judgment.” Sweet Lake Land & Oil Co. LLC
v. Exxon Mobil Corp., No. 09-1100, 2011 WL 5825791, *3 (W.D.La. Nov. 16, 2011).
Further, “pretrial adjudication of [Defendants’ motions] would narrow and simplify the issues
for trial.” Id. Therefore, this Court will proceed to consider the merits of the motions, as it
believes motion practice under Rule 56 is the proper vehicle for determining the
applicability of Louisiana’s comparative fault regime.4
4

“Plaintiffs question exactly what relief [D]efendants may be entitled to under Rule
56" and note that “Rule 56 is not intended to deal with hypothetical issues.” Record
Document 78 at 1. They go on to argue that “[D]efendants are attempting to ‘manufacture’
an ‘empty chair’ defense”; that Defendants should be held to a strict level of proof under
the circumstances; and that “there should be no holding that [D]efendants are only
responsible to the extent of their “activity.” Id. at 3. Plaintiffs seem to contend that the
suitable “relief” for Defendants is for the Court to issue appropriate jury instructions
concerning comparative fault:
Plaintiffs’ position is that the Court should decline to grant either of
[D]efendants’ MPSJs. A ruling on the wording on any jury interrogatories
should more appropriately be based upon the evidence adduced at trial.
Id. at 5.
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II.

Louisiana’s Comparative Fault Regime.
Again, Defendants ask the Court to decide whether Louisiana’s comparative law

regime, and not solidary liability, applies to Plaintiffs’ LPLA claims. In their opposition,
Plaintiffs state:
Movants ask the Court to hold that principles of comparative fault, without
solidary liability apply to cases governed by the Louisiana Products Liability
Act (“LPLA”). On this point, defendants are certainly correct.
Record Document 78 at 1. Yet, Plaintiffs still oppose the motions for partial summary
judgment.
Conduct or circumstances that result in liability under the LPLA are “fault” within the
meaning of Civil Code Article 2315. La. R.S. 9:2800.52. “Thus, liability as a manufacturer
under the LPLA is delictual” in nature, i.e., a non-intentional tort. Allstate Ins. Co. v. Fred’s,
Inc., 44,508 (La.App. 2 Cir. 3/17/10), 33 So.3d 976, 981-982. Louisiana Civil Code Articles
2323 and 2324 clearly establish that pure comparative fault, with joint and several liability
between the parties, applies in LPLA cases. Article 2323 provides, in pertinent part:
A.

In any action for damages where a person suffers injury, death, or
loss, the degree or percentage of fault of all persons causing or
contributing to the injury, death, or loss shall be determined,
regardless of whether the person is a party to the action or a nonparty,
and regardless of the person’s insolvency, ability to pay, immunity by
statute, . . . or that the other person’s identity is not known or
reasonably ascertainable. . . .

B.

The provisions of Paragraph A shall apply to any claim for recovery of
damages for injury, death, or loss asserted under any law or legal
doctrine or theory of liability, regardless of the basis of liability.

La. C.C. Art. 2323 (emphasis added). Article 2324 provides, in pertinent part:
A.

He who conspires with another person to commit an intentional or
willful act is answerable, in solido, with that person, for the damage
caused by such act.
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B.

If liability is not solidary pursuant to Paragraph A, then liability for
damages caused by two or more persons shall be a joint and divisible
obligation. A joint tortfeasor shall not be liable for more than his
degree of fault and shall not be solidarily liable with any other person
for damages attributable to the fault of such other person, including
the person suffering injury, death, or loss, regardless of such other
person’s insolvency, ability to pay, degree of fault, immunity by statute
or otherwise, . . . or that the other person’s identity is not known or
reasonably ascertainable.

La. C.C. Art. 2324 (emphasis added).
Louisiana state courts and federal courts have routinely held that pure comparative
fault applies to LPLA cases. See Kampen v. American Isuzu Motors, Inc., 157 F.3d 306,
315-316 (5th Cir. 1998); Broussard v. Procter & Gamble Co., 463 F.Supp.2d 596, 606 n.
8 (W.D.La. 2006); Holloway v. Midland Risk Ins. Co., 36,262 (La.App. 2 Cir. 10/30/02), 832
So.2d 1004, 1013; Hooker v. Super Products Corp., 98-1107 (La. App. 5 Cir. 6/30/99), 751
So.2d 889 (allocation of fault between three LPLA manufacturers of components of sewer
cleanup truck). As to the specific application of comparative fault amongst multiple LPLA
manufacturers, the Court finds Justiss Oil Co., Inc. v. T3 Energy Services, Inc., No. 0701745, 2011 WL 539135 (W.D.La. Feb. 7, 2011), to be particularly instructive.
Justiss Oil was the owner and operator of an oil well and sued for damages arising
out of a fracturing procedure gone awry, allegedly due to the failure of a defective well head
component it had purchased from T3. See id. at *1. Under the LPLA, Justiss Oil filed suit
against T3 as the seller and manufacturer of the well head component, and against various
other parties up the production chain. See id. at *1-2. In the context of Justiss Oil’s LPLA
claim against T3, the court reasoned:
Nonetheless, as discussed below, the point raised by T3 about its relative
lack of actual culpability does provide it with a defense to damages, though
on the basis of comparative fault—its share or allocation of fault for
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Justiss’ damages—not lack of proximate cause.
Id. at *3 (emphasis added). The court went on to discuss the interplay of the LPLA and
comparative fault in relation to Justiss Oil’s damages:
Louisiana has mostly abolished solidary liability, so judgment on the
damages issue would also require us to determine T3’ s comparative share
of Justiss’ damages. We find that this is a genuine and disputed issue of
material fact that we cannot resolve at this time. La. Civ.Code art. 2323.
T3 indirectly raised this issue in its discussion of liability under the
LPLA. It argued that, as it was arguably only the “apparent manufacturer” of
the product its actions could not have caused the defect and ultimately
Justiss’ damages. As discussed, this assertion misunderstands the doctrines
of both “apparent manufacturer” and proximate cause under the LPLA. It is
relevant here, however, in determining comparative fault.
That there is a tension between a strict products liability regime like
the LPLA and the principle of comparative fault has not gone unnoticed.
However, Louisiana law has long held that comparative fault may apply in
strict products liability cases. Since Louisiana adopted its present
comparative fault regime, such application is mandatory.
The method for applying this doctrine in “apparent manufacturer”
cases is best seen in the main case T3 discusses in its response
memorandum, Chevron USA v. Aker Maritime, Inc., 604 F.3d 888 (5th
Cir.2010). There, Chevron sued multiple “manufacturers” of a defective
product. . . . More pertinent here, the court upheld the jury’s allocation of
fault, including 35% to the “apparent manufacturer” distributor and 65%
spread among three other actual manufacturers, as a question of fact, not
law, reviewable only as to whether “the evidence presented to the jury . . . is
sufficient.” Id. at 892.
Applying that rule here, as discussed, numerous genuine issues of
material fact remain open concerning Justiss’ total damages and T3’s
comparative liability for those damages, and multiple additional alleged
manufacturers remain in this suit as defendants whose comparative liability
must likewise be determined.
Id. at *7 (some internal citations omitted).
Applying the principles set forth in Justiss Oil and further noting the Fifth Circuit’s
Chevron decision, wherein the appellate court upheld the jury’s allocation of fault amongst
an apparent manufacturer and three other actual manufacturers, this Court finds that pure
comparative fault, with no solidary liability, applies to this LPLA case. To the extent that
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Plaintiffs establish liability at trial, the defense of comparative fault/negligence will apply
such that each party will be held liable only for the percentage of fault caused by that party.
CONCLUSION
Defendants’ Motions for Partial Summary Judgment are hereby GRANTED, as the
Court finds that pure comparative fault, with no solidary liability, applies to this LPLA case.
Accordingly, partial summary judgment is entered as follows:
1.

Pure comparative fault principles, without solidary liability, are
applicable in this case. “Fault” is to be allocated among all persons
or parties whose conduct is shown to be causative of any damage to
Plaintiffs, including other parties qualifying as “manufacturers” under
the LPLA.

2.

The liability of C&H, K+K America, and Travelers to Plaintiffs is limited
to the extent that the evidence establishes that their activity with
respect to the product at issue caused Plaintiffs’ damages. Likewise,
the liability of ECS and Great American to Plaintiffs is limited to the
extent that the evidence establishes that their activity with respect to
the product at issue caused Plaintiffs’ damages.

3.

The liability of C&H, K+K America, and Travelers to Plaintiffs is
reduced by the extent to which the conduct of other parties, including
“LPLA manufacturers,” caused the damages. Likewise, the liability of
ECS and Great American to Plaintiffs is reduced by the extent to
which the conduct of other parties, including “LPLA manufacturers,”
caused the damages.

IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 22nd day of August,
2013.

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