Independent Fire Ins. Co. v. Sunbeam Corp., No. 99-C-2181
| Citation | 755 So.2d 226 |
| Decision Date | 29 February 2000 |
| Docket Number | No. 99-C-2257., No. 99-C-2181 |
| Parties | INDEPENDENT FIRE INSURANCE COMPANY, Elizabeth Cannon, wife of and Nary Cannon v. SUNBEAM CORPORATION, Sunbeam-Oster Company, Inc. and Sunbeam-Oster Housewares, Inc., d/b/a Sunbeam Outdoor Products, and Ray Jenkins and/or Otha Jenkins d/b/a Jenkins Towing and Jenkins Shell Service Station. |
| Court | Supreme Court of Louisiana |
Bernard J. Rice, III, Gretna, Counsel for Applicant in No. 99-C-2257.
Lawrence Emerson Abbott, Paul Eric Harrison, Stephen Busch Panus, Margaret Diamond, Richard Bouligny Eason, II, Colvin Gamble Norwood, Jr., New Orleans, Barry Francis Viosca, Metairie, Counsel for Respondent in 99-C-2257.
Margaret Diamond, Richard Bouligny Eason, II, Colvin Gamble Norwood, Jr., New Orleans, Counsel for Applicant in No. 99-C-2181.
Lawrence Emerson Abbott, Paul Eric Harrison, Stephen Busch Panus, New Orleans, Bernard J. Rice, III, Gretna, Counsel for Respondent in No. 99-C-2181.
John J. Weigel, New Orleans, Counsel for amicus curiae Louisiana Association of Defense Counsel.
We granted these writs to determine whether Louisiana Code of Civil Procedure article 967 prohibits the consideration of expert opinion evidence, in the form of either affidavits or depositions, by the trial judge in deciding a motion for summary judgment. After reviewing the record and the applicable law, we reverse the decision of the court of appeal and hold that, assuming the expert opinion evidence would be admissible at trial, the trial court must consider the evidence at the summary judgment stage. Further, we also reverse the judgment of the trial court granting summary judgment in favor of the third-party defendants and remand this case to the trial court for trial on the merits.
Mr. Nary Cannon testified in his deposition as follows. On the evening of September 19, 1992, a fire started in his propane gas barbeque grill, which was manufactured by defendant, Sunbeam Corporation ("Sunbeam"). Mr. Cannon testified that on that evening, he had cooked hamburgers on the Sunbeam grill inside their enclosed patio. A propane tank manufactured by Sunbeam was underneath the grill on a rack and was connected to the grill and in use. A spare propane tank, manufactured by Char-Broil, was also being stored on the bottom rack next to the Sunbeam tank. Mr. Cannon preheated the grill for five to ten minutes, and cooked the hamburgers. After cooking the hamburgers, he turned the grill to the "clean mode," which is set at a higher temperature, and went inside his home. Shortly thereafter, he heard a loud hissing sound coming from the grill, looked out the patio door, and saw flames coming out of the Sunbeam tank and going up the back wall and in all directions from there. He immediately went inside to get his family out of the house and then went to a neighbor's house to call 911. He returned to view the fire from outside the patio, about 25 feet from the grill, and saw the flames still coming only from the Sunbeam tank. He then heard another loud hissing sound and saw flames coming from the Char-Broil tank and hitting the back wall. The Cannon's home was severely damaged in the fire and the Sunbeam grill and both tanks were destroyed.
The Cannons and their homeowners' insurer, Independent Fire Insurance Company, brought suit against Sunbeam, contending that the fire was caused by an unreasonably dangerous and/or defective condition of the barbeque grill or the safety valve on the Sunbeam propane tank. Sunbeam filed a third-party demand against Ray Jenkins and/or Otha Jenkins d/b/a Jenkins Towing and Jenkins Shell Service Station ("Jenkins Shell"), claiming that it negligently overfilled the spare Char-Broil tank, that the tank vented, and that the vapors ignited. Plaintiffs then amended their petition to assert a negligence claim against Jenkins Shell.
Jenkins Shell filed a motion for summary judgment, asserting that there was no evidence that Jenkins Shell had overfilled the spare tank nor any evidence that plaintiffs' property damage was proximately caused by an act of Jenkins Shell. In support of this motion, Jenkins Shell produced the deposition of Mr. Cannon which contained his eyewitness account of the fire, as stated above. In this deposition, Cannon also stated that although he did not remember exactly when or where he last filled the Char-Broil tank and had not kept any receipts, he routinely had his tanks filled at Jenkins Shell. He further testified that he had used the Char-Broil tank one or two times since it was last filled.
Jenkins Shell also produced the affidavit and deposition of Otha Ray Jenkins, who stated that he did not remember filling the Cannon's spare Char-Broil tank. Mr. Jenkins also described the customary procedure for filling a propane tank the size of the Char-Broil tank in question and attested to the fact that his propane gas facility has state inspected equipment and that he has been properly trained to fill propane tanks. Finally, Jenkins Shell produced the expert reports of three expert witnesses, along with portions of their depositions. Fred Liebkemann, a mechanical engineer, opined in his expert report that the fire was caused by the discharge of a large volume of propane gas out of the pressure relief port of the Sunbeam tank, which happened because either the tank was subject to excessive heat from the grill or the tank had a defective relief valve. He opined that the Char-Broil tank was not overfilled, based on the eyewitness testimony of Cannon and his own examination of the Jenkins facility, which met all safety standards for filling propane gas tanks. In his deposition, he also referred to 43 other cases involving various problems with Sunbeam tanks or grills.
Jenkins Shell also produced the expert report and partial deposition of Harold Myers, an engineer who opined that based on the eyewitness testimony and his knowledge of other problems associated with Sunbeam grills, the fire originated from the discharge of gas from the safety valve of the Sunbeam tank when it was subjected to excessive heat in the compartment where the tanks are housed on the grill. Lastly, Jenkins Shell produced the partial deposition of expert witness Randall Bruff, an investigator for the INS Investigative Bureau, who opined that the most likely cause of the fire was the malfunction of the hose line which connected to the Sunbeam tank.
In opposition to the motion for summary judgment, plaintiffs and third-party plaintiffs produced the expert report and partial deposition of William Baynes, the Director of Engineering Services for Sunbeam Outdoor Products. Mr. Baynes performed tests using equipment similar to the Cannon's grill, but with a properly-filled spare propane tank and a non-defective operating tank and grill. He tested the grill by replicating the use of the grill as described by Mr. Cannon and by allowing the grill to remain lit on a high setting for an extended period of time, and neither caused the safety relief valve on the properly filled spare tank and nondefective operating tank to vent and expel propane. Based on his testing, he concluded that it was not possible that the flames came from the operating Sunbeam tank because when a tank is in use, the pressure in the tank, and thus the temperature, is decreasing, whereas the temperature in the spare tank is increasing. He opined that, contrary to Mr. Cannon's recollection of the incident, the only possible scenario was that the fire resulted from the accidental venting of the safety relief valve of an overfilled spare tank, the Char-Broil tank, stored under the grill. He testified that his conclusion was not based on any first-hand knowledge as to how the tank was filled because he was not present when it was filled.
At the hearing on the motion for summary judgment, the trial judge asked plaintiffs' attorney the following questions about Baynes' conclusion that the spare tank was overfilled:
The court granted Jenkins Shell's motion for summary judgment, giving the following oral reasons:
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