210 F.3d 1158 (10th Cir. 2000), 98-6135, Woolard v JLG Indus.

Docket Nº:98-6135, 98-6136, 98-6170
Citation:210 F.3d 1158
Party Name:ROY WOOLARD, Plaintiff - Appellee and Cross- Appellant, v. JLG INDUSTRIES, INC., a Pennsylvania corporation, Defendant, and YOUNG ENTERPRISES, INC.; PRIMECO, INC., d/b/a PRIME EQUIPMENT COMPANY, a Texas corporation, Defendants - Appellants and Cross-Appellees.
Case Date:April 25, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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210 F.3d 1158 (10th Cir. 2000)

ROY WOOLARD, Plaintiff - Appellee and Cross- Appellant,

v.

JLG INDUSTRIES, INC., a Pennsylvania corporation, Defendant,

and

YOUNG ENTERPRISES, INC.; PRIMECO, INC., d/b/a PRIME EQUIPMENT COMPANY, a Texas corporation, Defendants - Appellants and Cross-Appellees.

Nos. 98-6135, 98-6136, 98-6170

United States Court of Appeals, Tenth Circuit

April 25, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (CIV-96-0670-M)

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Edward S. Hubbard, of Nicholas, Grant & Hubbard, P.L.L.C., Houston, Texas, (T.B. Nicholas, Jr., and Eileen K. Wilson, of Nicholas, Grant & Hubbard, P.L.L.C., Houston, Texas, and W. Wayne Mills, of Mills & Whitten, Oklahoma City, Oklahoma, with him on the briefs), for Appellant - Cross-Appellee Primeco, Inc.

Tim N. Cheek (D. Todd Riddles with him on the briefs) of Cheek, Cheek, & Cheek, Oklahoma City, Oklahoma, for Appellant - Cross-Appellee Young Enterprises, Inc.

Elizabeth R. Castleberry (with Jack S. Dawson and James S. Scimeca with her on the briefs) of Miller Dollarhide, Oklahoma City, Oklahoma, Appellee - Cross-Appellant Roy Woolard.

Before ANDERSON, BARRETT, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Roy Woolard was injured by the collapse of an aerial work platform (or "lift"). He subsequently filed this diversity action against JLG Industries, Inc. ("JLG"), the lift's manufacturer, and Young Enterprises ("Young"), the lift's owner at the time of the accident, alleging the defective manufacture,

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design, distribution, and sale of the lift. Mr. Woolard later joined Primeco Inc., the distributor that sold the lift to Young, alleging Primeco and its predecessor-in-interest, American Hi-Lift (together, "Primeco") failed to properly maintain and repair the lift and failed to warn that the lift was unsafe. Young, as a third-party plaintiff, filed a cross-claim against Primeco seeking indemnification for liability based on theories of breach of contract, negligence, and strict products liability.

Prior to trial, Mr. Woolard settled his products liability claim against JLG. His negligence claims against Young and Primeco proceeded to trial. Specifically, Mr. Woolard asserted that (1) Young owed him a duty to maintain, inspect, and provide safe and reliable equipment; (2) Young breached that duty through its failure to perform the required inspections; (3) Primeco, as the maintenance agent under a Distributor and Sales Agreement (the "Distributor Agreement") with JLG, was responsible for maintaining and repairing the lift; (4) Primeco, having performed repairs to an electrical switch shortly before the accident, knew that the lift was unsafe, and failed to notify either Mr. Woolard, or his employer, Young Electric, of the lift's condition or of the need for annual inspection of the lift; (5) Primeco failed to notify Young of the required annual inspections and failed to perform the required annual inspections; (6) Primeco had a duty to Mr. Woolard and his employer to inform them of the need for inspection of the lift as a third-party beneficiary of the Distributor Agreement; and (7) Primeco's predecessor installed unsafe replacement pins into the lift, the failure of which contributed to the accident.

At trial, the jury found that Young was forty percent negligent and that Primeco was sixty percent negligent, and awarded Mr. Woolard $1.5 million in damages. The district court entered judgment for Mr. Woolard, reducing his damages by $300,000.00 (the amount of his settlement with JLG) and calculated a prejudgment interest award based on the reduced figure.

Primeco now appeals, arguing that the district court erred in denying its motion for judgment as a matter of law and its motion for a new trial. Primeco raises the following arguments and defenses to support its claim that its alleged negligence did not cause the accident: (1) Primeco did not breach its common law duty to exercise ordinary care in repairing and maintaining the lift; (2) because Mr. Woolard was not a third-party beneficiary of the Distributor Agreement, the Distributor Agreement did not impose a contractual duty upon Primeco to warn of the lift's dangerous condition; (3) Primeco was not the proximate cause of Mr. Woolard's injuries; (4) the district court erred when it denied Primeco's motion for remittitur; and (5) the district court improperly altered one of the jury instructions after closing arguments. Mr. Woolard cross-appeals, arguing that the district court erred in calculating prejudgment interest under Oklahoma law.

In addition, Young, as cross-appellant, appeals on its cross-claims against Primeco. During this appeal, Young settled all of its claims with Mr. Woolard for $400,000.00. Young argues that it was entitled to either judgment as a matter of law and restitution in the form of indemnification or contribution based on its cross-claims against Primeco. Young's cross-claims sought to hold Primeco liable for any claims Mr. Woolard successfully lodged against Young based on theories of negligence, strict products liability, and breach of contract. In the alternative, Young argues that the district court erred when it failed to properly instruct the jury on these cross-claims.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in part and reverse in part. In particular, we hold that the district court properly denied Primeco's motion for a judgment as a matter of law and its motion for a new trial. Further, we hold that the district court did not err in amending the jury instructions after closing arguments. In Mr. Woolard's cross-appeal,

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we hold that the district court improperly calculated prejudgment interest, and we remand for recalculation. Finally, on Young's appeal of its cross-claims, we hold that the district court properly denied the motion for judgment as a matter of law and did not err in refusing Young's requested instructions on its cross-claims.

I. BACKGROUND

JLG is the designer and manufacturer of the lift that collapsed and caused Mr. Woolard's injuries. The lift consisted of a base, a telescoping arm (or "boom"), and a basket attached to the end of boom. With a worker in the basket, the boom could extend outward and upward 110 feet and swing side to side, providing a stable platform.

On April 2, 1996, Mr. Woolard was working as a journeyman electrician for a private electrical repair company. He had been hired as a subcontractor for a construction project at Altus Air Force Base in Altus, Oklahoma. In connection with this project, Mr. Woolard's employer leased two JLG aerial lifts from co-defendant Young. While working on the project, Mr. Woolard was injured when one of the lifts collapsed, causing him to fall approximately seventy feet.

At trial, Mr. Woolard submitted evidence explaining the collapse of the boom. Mr. William Munsel, a mechanical engineer and metallurgist, testified that the boom contained a defective sheave pin that failed, causing the collapse of the boom. See Aplts' App. vol. VIII, at 174, 177-80. He explained that two pins hold a single eye bolt in place and that this mechanism is critical to the telescoping of the boom. See id. at 180. According to Mr. Munsel, one of the sheave pins was made of an inferior, chrome-plated soft metal. See id. at 184-86. The recommended JLG pin is made of hardened steel. See id. at 184-85. Mr. Munsel concluded that the soft-metal wore excessively, causing the pin's eye bolt to fail and the boom to collapse. He testified that the difference between a proper hardened steel pin and a soft metal pin was visually obvious. See id. at 185-86.

Mr. Woolard argued that Primeco, which rents, sells, and services industrial equipment, was responsible for the accident. In 1989, Primeco purchased the lift from its manufacturer, JLG. Mr. Woolard contended that Primeco negligently rebuilt the lift and installed the inferior soft metal pins. He presented evidence that Primeco performed a complete overhaul of the unit in 1990. See id. at 280. As part of the overhaul, Primeco replaced the factory-installed "sheave pins" with new pins. See id. vol. IX, at 296-97. In 1993, Primeco sold the lift to Young. Although Primeco asserted that it used JLG-authorized parts during the overhaul, Mr. Woolard presented evidence indicating that Primeco may not have received the hardened steel metal pins it ordered and that it used one of the chrome-plated soft-metal pins instead. See id. vol. VIII, at 280-84.

Further, Mr. Woolard argued that Primeco failed to notify him or his employer about the need for an annual inspection, which would have revealed the defects. Mr. Woolard submitted evidence that, on March 7, 1996, just a few weeks before the lift collapsed, Young hired Primeco to service the lift. Primeco's field service mechanic, Philip Barker, traveled to Altus, Oklahoma and repaired an electrical switch that was malfunctioning. See id. vol. VII, docs. 60 and 68 (Primeco's field service report and billing invoice); vol. VIII, at 88, 91 (testimony of Phillip Barker). The repairman testified that the lift was in need of further repairs (in addition to the malfunctioning switch) and an annual inspection. He testified that in his opinion, even with the switch repaired, the lift should have been taken out of service. See Aplts' App. vol. VIII, at 105. However, he did not advise anyone of his opinions or observations. See id. at 94.

On this point, Mr. Woolard submitted evidence that the manufacturer, JLG, advised that the lift be inspected annually and provided its distributors with...

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