Webber, LLC et al v. Symons Corporation et al

Filing 133

Memorandum Opinion and Order...denying plaintiffs' motion for partial summary judgment is denied. (Ordered by Judge John McBryde on 7/29/2013) (wrb)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

·.·.·.·. . · · FILED

IN THE UNITED STATES DISTR CT CO "'"
NORTHERN DISTRICT OF EXAS.
JUL
FORT WORTH DIVISIO

l 9 20\3

CLERK. U.S. DISTRICT COURT

WEBBER, LLC, ET AL.,
Plaintiffs,

vs.
DAYTON SUPERIOR CORPORATION,
Defendant.

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BY~~"""""-=::--~~
Deputy

NO. 4:12-CV-181-A

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion for partial summary judgment filed by plaintiffs, Webber,
LLC {"Webber"), and Arch Insurance Company {Arch), as Subrogee of
Juan Rueda {"Rueda") and Manuel Patlan {"Patlan"), on June 11,
2013.

After having considered such motion, the response thereto

of defendant, Dayton Superior Corporation, plaintiffs' reply, the
entire summary judgment record, and pertinent legal authorities,
the court has concluded that the relief sought by such motion
should be denied.
The six grounds of the motion, as summarized therein, are as
follows:
1.

The fact the two injured employees were not
utilizing fall protection at the time of the
accidents cannot be used to support a finding of
contributory negligence;

2.

The product, the C-24 Type 9 APR hanger, was
defectively designed;

3.

The C-24 Hanger was defectively marketed because
the Defendants did not provide appropriate
warnings and instructions;

4.

Defendants breached the express warranties in the
contract between Webber and Defendants;

5.

Defendants breached the implied warranties of
merchantability and fitness for a particular
purpose;

6.

The indemnity provision in the contract entitles
Webber to indemnity from Defendants for the
compensable injuries suffered by the two
employees

Mot. at 1-2.
The court is not satisfied that the summary judgment record
establishes as a matter of law, without genuine dispute, that the
product was defectively designed or defectively marketed or that
defendant breached any express or implied warranties.

The court

need not deal with the sixth ground relative to an indemnity
provision beyond noting that plaintiffs have not pleaded any
theory of recovery based on an indemnity provision.
As to the first ground, the court is inclined to think that
plaintiffs are misinterpreting the use defendant is planning to
make at the trial of this case of the alleged fault associated
with the failure of the injured workmen, Rueda and Patlan, to
engage in proper safety practices when their respective accidents

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occurred.

Defendant's answer to the complaint and response to

the motion suggests that defendant's use of any such fault would
be pursuant to the authority of chapter 33 of the Texas civil
Practice & Remedies Code.
Chapter 33 applies to "any cause of action based on tort in
which a defendant, settling person, or responsible third party is
found responsible for a percentage of the harm for which relief
is sought," Tex. civ. Prac.

&

Rem. Code Ann.

provides that "[t]he trier of fact
defendant's percentage of responsibility

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33.003(a) (1), and

shall determine the
with respect to

each person's causing or contributing to cause in any way the
harm for which recovery of damages is sought, whether by
negligent act or omissions . . . by other conduct or activity
that violates an applicable legal standard, or by any combination
of these," id., 33. 003 (a) (1).

The term "percentage of

responsibility" is defined as
that percentage .
attributed by the trier of fact
to each claimant, each defendant,
or each
responsible third party with respect to causing or
contributing to cause in any way, whether by negligent
act or omission, by any defective or unreasonably
dangerous product, by other conduct or activity
violative of the applicable legal standard, or by any
combination of the foregoing, the personal injury,
property damage, death, or other harm for which
recovery of damages is sought."
Id. at

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33.011(4).

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The statute provides that "the court shall reduce the amount
of damages to be recovered by the claimant with respect to a
cause of action by a percentage equal to the claimant's
percentage of responsibility,"

id. at§ 13.012{a), which, as

noted above, is defined to mean to the responsibility for the
"personal injury . . . or other harm for which recovery of
damages is sought," id. at 33.011(4).
Under the clear wording of the statute, if Rueda and Patlan
were the plaintiffs, as distinguished from mere vehicles through
whom Arch is asserting its subrogation claims, the jury would
determine, in each instance, the amount of damages each injured
employee suffered as a result of his accident and the percentage
of fault of the employee that contributed to cause those damages;
and, the court would then reduce that damage amount by the
employee's percentage of fault.

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The court will require further

input from the parties on the forms of the questions that would
be submitted to the jury in this case to determine the percentage
of the employees• damages Arch should receive if the employee is
found to have been contributorily at fault, bearing in mind that
Arch, as subrogee, will be limited in its recovery to the

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The discussions re comparative responsibility assumes, arguendo, that the finder of fact would
find causative fault on the part of defendant. Also, the court is simplifying the matter by not including
the responsible third party in the discussions.
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payments it made to or on behalf of the employees pursuant to its
obligations as the workers compensation insurer.

This subject

could be complicated by the real-party-in-interest requirements
of Rule 17(a) of the Federal Rules of civil Procedure and the
provisions of section 417.001 of the Texas Labor Code.
As to the damages Webber seeks to recover for its
independent losses, which are described in paragraph 16 on page 4
of the second amended complaint, the questions presented to the
jury should be rather straightforward.

Webber's damages

presumably would not be reduced by fault found to be attributable
to the employees, but not to Webber.

However, if Webber were

found to have been at fault in causing its damages, the questions
to be answered by the jury as between Webber and defendant could
be similar to the following:
Find from a preponderance of the evidence the
percentage of responsibility attributable to each of
the following parties for the damages Webber suffered
as a proximate result of the occurrence involving
Webber's employee
(Rueda or Patlan)

a.
b.

Webber
Defendant
Total

The court anticipates that the parties will confer, and try
to reach agreement, on the forms of questions that should be
presented to the jury for the jury to make the findings necessary

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to enable the court to properly recognize Texas's proportion-ofresponsibility scheme as applied to the facts of this case.'
For the reasons stated, the court is not in a position to
make a ruling in favor of plaintiffs on the existing record as to
any of the grounds asserted by them in their motion.

Therefore,

The court ORDERS that the relief sought by plaintiffs'
motion for partial summary judgment be, and is hereby, denied.
SIGNED July 29, 2013.

'The court anticipates submitting this case to the jury by the use of written questions as
authorized by Rule 49(a)(l) of the Federal Rules of Civil Procedure. The only instructions that will be
included with the questions to be answered by the jury will be those necessary for the jury to understand
the meaning of the question and what they are to consider in answering it. The jury will not be given any
instructions that will inform it of the legal effect on the outcome of the case of the jury's answers to the
written questions.
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