AgSecurity Insurance Company v. Affiliated Foods Inc
Filing
50
ORDER granting in part and denying in part 29 defendant's Motion for Summary Judgment (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 10/29/2013. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AGSECURITY INSURANCE
COMPANY,
Plaintiff,
vs.
AFFILIATED FOODS, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-12-590-M
ORDER
This case is scheduled for trial on the Court’s January 2014 trial docket.
Before the Court is defendant Affiliated Foods, Inc.’s Motion for Summary Judgment, filed
August 27, 2013. On September 17, 2013, plaintiff filed its response. On September 24, 2013,
defendant filed its reply, and on October 3, 2013, plaintiff filed its sur-reply. Based upon the parties’
submissions, the Court makes its determination.
I.
Introduction
In this action, plaintiff seeks to recover the amount paid in settlement of an earlier lawsuit
filed against its insured and its insured’s employees. On September 13, 2009, a minor was injured
in a grocery market located in Okeene, Oklahoma (the “Okeene Market”) when a shelf from a freestanding shelving unit, called an endcap (the “subject endcap”), allegedly fell on her. The subject
endcap was generally comprised of a base, seven shelves, two side supports, and a red pegboard, and
it contained candy and abutted the gondola1 between aisles 1 and 2 of the Okeene Market. The
subject endcap was not anchored to anything at the time of the incident.
1
A gondola is a two-sided shelving unit that runs the length of an aisle, and an endcap is a
one-sided shelving unit that abuts the end of a gondola.
Plaintiff’s insured owned the Okeene Market at the time of the incident. On January 10,
2010, the minor’s parents filed a lawsuit against plaintiff’s insured and its insured’s employees,
alleging that the minor suffered a brain injury as a result of the direct negligence of plaintiff’s
insured and its insured’s employees, namely, their failure to keep and maintain a safe premises.
Plaintiff later settled the lawsuit filed by the minor’s parents.
Plaintiff’s insured had purchased the Okeene Market from a woman named Patricia Kubat
on or about August 24, 2009.
Plaintiff’s insured did not inspect the subject endcap between the
time it purchased the Okeene Market and the incident involving the minor.
Ms. Kubat purchased the Okeene Market in late 2003, and that purchase included the
shelving equipment then existing within the Okeene Market.2 At the time, the Okeene Market was
divided into two shopping areas – a north shopping area and a south shopping area. It also
possessed a separate “back area” and a separate “back room.” All of the shelving equipment that
Ms. Kubat purchased was disassembled and placed in the “back area” so that new tile could be
installed in the north and south shopping areas. After the tile was installed, a majority of the
disassembled shelving equipment was moved to the south shopping area, but some remained in the
“back area.”3
Ms. Kubat chose defendant as a distributor for the Okeene Market, and since it was a new
store, defendant assisted her with the initial store setup. A representative of defendant, Danny
Jackson, visited the Okeene Market in January of 2004. He took measurements to create a store
2
The shelving equipment that Ms. Kubat purchased included a single red pegboard.
3
Defendant was not involved in the process of disassembling the shelving equipment and
moving it to the “back area” or involved in moving the shelving equipment to the south shopping
area.
2
layout diagram for the north and south shopping areas and looked at the shelving equipment in the
south shopping area to determine what was on hand. Mr. Jackson eventually prepared the store
layout diagram, which Ms. Kubat kept in her files. The store layout diagram depicted an endcap for
display of candy in the same location as the subject endcap. After Mr. Jackson completed the store
layout diagram, defendant sent a three-man crew to assemble shelving units from the disassembled
equipment and to set product on the shelves of the assembled shelving units. The members of
defendant’s three-man crew have testified (1) that they were unable to complete the Okeene Market
according to the store layout diagram due to a shortage of shelving equipment parts and (2) that they
were not involved in any way with the subject endcap’s assembly. Further, invoices produced by
Ms. Kubat show that “candy-gum” in the amount of $2,190.60 was delivered to the Okeene Market
in January 2004, but the invoices do not state the type or quantity of “candy-gum” delivered.
Ms. Kubat has testified regarding two instances where the subject endcap “tilted” forward
after being assembled. One occurred while she was climbing on the unit, and the other instance
occurred while her employee, Rachel Pavlu, was standing on the third or fourth shelf. Another
employee of Ms. Kubat, who later became an employee of plaintiff’s insured, Jennifer Tambunga,
testified that the subject endcap was a “little bit wobbly.” She testified that she told Ms. Kubat that
the subject endcap “wobbled” but that she never subsequently told plaintiff’s insured. Ms. Kubat
testified that she did not remember Ms. Tambunga telling her that the subject endcap wobbled.
On April 3, 2012, plaintiff filed the instant action against defendant. As the basis for its
recovery against defendant, plaintiff contends that defendant was involved in some way with the
assembly of the subject endcap and acted negligently. Defendant now moves for summary
judgment.
3
II.
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.
1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
quotations omitted).
III.
Discussion
Defendant asserts that plaintiff cannot prove that defendant had any involvement with the
assembly of the subject endcap. Defendant further asserts that even if plaintiff could prove that
defendant had some involvement with the assembly of the subject endcap, defendant cannot be held
responsible for the incident as a matter of law. Specifically, defendant contends that it owed no duty
to the minor as a matter of public policy and that the intervening negligence of third parties broke
the chain of causation because such negligence was unforeseeable as a matter of law. Alternatively,
4
if the Court declines to enter judgment in favor of defendant at this time, defendant asserts that the
Court should dismiss with prejudice plaintiff’s claim for indemnity4 and its claim for reimbursement
of costs and attorney’s fees incurred in connection with the minor’s parents’ lawsuit.
A.
Involvement with the assembly of the subject endcap
Because underlying each of plaintiff’s theories of recovery is the contention that defendant
was involved in some way with the subject endcap, defendant contends that it is entitled to summary
judgment because plaintiff cannot come forward with sufficient evidence to create a genuine issue
as to whether defendant had some involvement with the assembly of the subject endcap. The Court
has carefully reviewed the parties’ briefs and evidentiary submissions. Viewing the evidence in the
light most favorable to plaintiff and viewing all reasonable inferences in plaintiff’s favor, the Court
finds plaintiff has presented sufficient evidence to create a genuine issue of material fact as to
whether defendant had some involvement with the assembly of the subject endcap. Specifically, the
Court finds that based upon the testimony of Ms. Kubat, the store layout diagram, and the candy
invoices, a jury could conclude that defendant was involved in some way with the assembly of the
subject endcap. Additionally, whether the testimony of defendant’s three-man crew is believable
is a credibility determination that must be made by the jury.
Accordingly, the Court finds that defendant is not entitled to summary judgment on this
basis.
4
On September 24, 2013, the parties filed a Joint Stipulation of Partial Dismissal without
Prejudice, dismissing plaintiff’s Second Cause of Action for Indemnity.
5
B.
Whether defendant owed no duty to the minor as a matter of public policy
Defendant contends that based upon the “accepted work doctrine,” it owed no duty to the
minor as a matter of public policy. Under the “accepted work doctrine,”
an independent contractor who has turned over his work and had it
accepted by the owner is not subject to liability to third parties
injured by the defective condition of the work. Liability, if any, is
placed on the owner who has maintained or used the property in its
defective condition, and the contractor’s liability, if any, is solely to
the owner for breach of contract.
Pickens v. Tulsa Metro. Ministry, 951 P.2d 1079, 1088 (Okla. 1997). However, one of the wellestablished exceptions to the “accepted work doctrine” provides:
where the contractor has wilfully created a condition which he
knows, or by the exercise of ordinary diligence should have known,
to be immediately and certainly dangerous to persons other than the
contractee, who will be necessarily exposed to such danger,
considerations of public policy do not require the application of the
general rule.
Creamer v. Bucy, 700 P.2d 668, 670-71 (Okla. Civ. App. 1985). However,
[i]f after acceptance, the contractee maintains a structure in a
dangerously defective condition such action constitutes an
intervening efficient cause, but the causal connection between the
contractor’s original negligence and a subsequent injury is not broken
if the contractor could reasonably have anticipated that such
intervening cause or a similar one would intervene in a way likely to
cause an injury similar to that actually suffered.
Greenwood v. Lyles & Buckner, Inc., 329 P.2d 1063, 1063-64 (Okla. 1958).
Defendant asserts that Ms. Kubat learned after the subject endcap was installed that it was
unstable; yet, she continued to use it without ever taking any steps to correct its instability.
Defendant, therefore, contends that assuming plaintiff’s allegations are correct regarding defendant’s
installation of the subject endcap, Ms. Kubat maintained the subject endcap in a dangerously
6
defective condition after acceptance of defendant’s work, and such action constitutes an intervening
efficient case.
Having carefully reviewed the parties’ submissions, and viewing the evidence in the light
most favorable to plaintiff and viewing all reasonable inferences in plaintiff’s favor, and assuming
the “accepted work doctrine” is applicable to this case,5 the Court finds that there is a disputed issue
of material fact as to the extent of Ms. Kubat’s knowledge regarding the instability of the subject
endcap and a disputed issue of material fact as to whether Ms. Kubat’s failure to correct the subject
endcap’s instability was reasonably foreseeable to defendant. Specifically, there is conflicting
evidence as to how much Ms. Kubat knew about the instability of the subject endcap and the
possible consequences of its wobbling. Additionally, plaintiff has presented evidence that Ms.
Kubat was an inexperienced store owner, did not know how to install the subject endcap, and relied
upon the expertise and advise of defendant.
Accordingly, the Court finds that defendant is not entitled to summary judgment on this
basis.
C.
Intervening negligence
Defendant contends that even if it was involved in the assembly of the subject endcap, the
intervening negligent conduct of third parties broke the chain of causation. Specifically, defendant
asserts that if Ms. Kubat or plaintiff’s insured became or should have become aware of the
dangerous condition of the subject endcap, and was in a position to deal with it, her/its failure to act
reasonably would be unforeseeable to defendant and would break the chain of causation. As set
5
In its response, plaintiff asserts that the “accepted work doctrine” has been abandoned by
Oklahoma courts.
7
forth above, there is a disputed issue of fact as to whether or not Ms. Kubat or plaintiff’s insured
knew or should have known about the instability of the subject endcap and whether or not their
failure to correct the subject endcap’s instability was reasonably foreseeable to defendant.
Accordingly, the Court finds that defendant is not entitled to summary judgment on this
basis.
D.
Costs and attorney’s fees
Defendant contends that as a matter of law plaintiff is not entitled to reimbursement for costs
and attorney’s fees incurred in connection with the minor’s parents’ lawsuit. Specifically, defendant
asserts that plaintiff’s insured and its insured’s employees have no right to costs because they can
never be “a prevailing party” in either the minor’s parents’ lawsuit, which was settled, or this
lawsuit, to which they are not a party. Defendant further asserts that attorney’s fees are not
recoverable as damages in a contribution action, and there are no applicable statutes awarding
attorney’s fees as costs to a prevailing party in a contribution action.
“A subrogee acquires no rights greater than those of the party whose claim it has paid.”
Emp’rs Mut. Cas. Co. v. Mosby, 943 P.2d 593, 595 (Okla. 1997). Thus, plaintiff must prove that
its insured and its insured’s employees are entitled to recover costs and attorney’s fees from
defendant. The Oklahoma Supreme Court has held:
where the wrongful acts of the defendant have involved the plaintiff
in litigation with others, or have placed him in such relation with
others as to make it necessary for him to incur attorney fees to protect
his interests, attorney fees [are] recoverable in such cases as one of
the elements of damages flowing from the original wrongful act of
the defendant.
Barnes v. Okla. Farm Bureau Mut. Ins. Co., 11 P.3d 162, 181 (Okla. 2000). To the extent plaintiff
is making an equitable subrogation claim, and if the jury ultimately finds that defendant was
8
negligent and plaintiff’s insureds were fault free, the Court finds that plaintiff could recover the costs
and attorney’s fees of its insured and insured’s employees incurred in the minor parents’ lawsuit.
Additionally, the Oklahoma Supreme Court has held that “no basis exists for recovery of
attorney’s fees in a contribution action.” Nat’l Union Fire Ins. Co. v. A.A.R. W. Skyways, Inc., 784
P.2d 52, 58 (Okla. 1989). Therefore, the Court finds plaintiff is not entitled to the attorney’s fees
incurred in the minor’s parents’ lawsuit as an element of damages for its contribution claim.
IV.
Conclusion
Accordingly, for the reasons set forth above, the Court GRANTS IN PART and DENIES IN
PART defendant’s Motion for Summary Judgment [docket no. 29] as follows:
(A)
The Court GRANTS the motion for summary judgment as to plaintiff’s entitlement
to the attorney’s fees incurred in the minor’s parents’ lawsuit as an element of
damages for its contribution claim, and
(B)
The Court DENIES the motion for summary judgment in all other respects.
IT IS SO ORDERED this 29th day of October, 2013.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?