Crockett v. Uniroyal, Inc.

Decision Date07 October 1985
Docket NumberNo. 84-8690,84-8690
Citation772 F.2d 1524
PartiesJeremiah CROCKETT, et al., Plaintiffs-Appellees, v. UNIROYAL, INC., et al., Defendants-Appellants, Southern Railway Co., Seaboard System Railroad, Inc., etc., Defendants-Appellees. Southern Railway Co., Third-Party Plaintiff-Appellee. Erma CROCKETT, Plaintiff-Appellee, v. UNIROYAL, INC., et al., Defendants-Appellants, Southern Railway Co., Seaboard System Railroad, Inc., etc., Defendants-Appellees, Southern Railway Co., Third-Party Plaintiff-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

David M. Brown, Sandra Kaye, Atlanta, Ga., for Uniroyal, Inc.

William J. McKenney, Atlanta, Ga., Carr G. Dodson, Robert C. Norman, Jones, Cork & Miller, F. Kennedy Hall, Stephen Stewart, Hall, Bloch, Garland & Meyer, Macon, Ga., Arthur H. Glaser, G. Randall Moody, Drew, Edkl & Farnham, Atlanta, Ga., for Jeremiah Crockett, Erma Crockett, Southern

Ry. Co. and Seaboard System Railroad Inc.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY and HILL, Circuit Judges, and PITTMAN *, District Judge.

JAMES C. HILL, Circuit Judge:

This case was initiated by complaints filed by Jeremiah Crockett and Erma Crockett against Uniroyal, Inc. ("Uniroyal"), Seaboard System Railroad, Inc., ("Seaboard") and Southern Railway Company ("Southern"). (Seaboard and Southern are referred to collectively as "the railroad defendants"). The instant appeal arises from a series of orders entered by the district court dismissing the railroad defendants, holding them not liable to the plaintiffs, and granting summary judgment in favor of the railroad defendants against Uniroyal on Uniroyal's cross-claim for indemnity or contribution.

FACTS

Uniroyal, through its wholly owned subsidiary, Alpine Laboratories, Inc. ("Alpine"), manufactures a poison called substituted nitrophenol pesticide liquid ("substituted nitrophenol"). In early 1982, four tank cars leased from General American Transportation Company ("GATC"), GATC 37819, 75680, 63506 and 63457, were filled with substituted nitrophenol and shipped from Uniroyal's Alpine plant in Bay Minette, Alabama to Uniroyal's plant in Gastonia, North Carolina. The tank cars were unloaded, inspected, and marked "empty" by Uniroyal officials in Gastonia. The cars were then placarded to show "empty," and their manways, openings giving access to the interior of the cars, were bolted shut. In this condition the cars were returned to Uniroyal's plant in Bay Minette.

Alpine contacted Railcar Services (Railcar), located in Gordon, Georgia, and arranged for the cars to be steamed cleaned. In March, 1982, two tank cars, GATC 37819 and 75680, were shipped from Bay Minette, Alabama to Gordon, Georgia. The cars were transported by Seaboard from Bay Minette to Atlanta. Southern then picked up the rail cars and transported them from Atlanta to Gordon, Georgia. The two cars were cleaned without incident and returned to Alpine in July, 1982.

Alpine later contacted Seaboard regarding the shipment of the remaining two tank cars, GATC 63506 and 63457, to Railcar to be cleaned. Seaboard prepared the waybill for the tank cars. 1 That waybill was delivered by Seaboard to Seaboard's connecting carrier, Southern. The information upon which the waybill was based was information given to Seaboard by Alpine. Among notations on the waybill were the following items: (1) that each railcar was empty; (2) that the cars were shipped by Alpine Labs in Bay Minette, Alabama; (3) that the cars last contained substituted nitrophenol and were placarded "poison."

The two remaining tank cars, GATC 63506 and 63457, were again shipped by Alpine through Seaboard from Bay Minette to Atlanta. 2 Southern picked up the cars in Atlanta, transported them to Gordon, and delivered them to Railcar on July 30, 1982. In accordance with industry practice, Southern did not give Railcar a copy of the waybill.

On August 2, 1982, Jeremiah and Shedrick Crockett, Railcar employees, were instructed to steam clean GATC 63457. They did so, Shedrick Crockett steam cleaning the inside of the tank car, Jeremiah Crockett working on the outside. Both men became ill during the process. Shedrick Crockett later died. Jeremiah Crockett

survived with injuries. It is undisputed that the cause of death and injury was exposure to substituted nitrophenol.

PROCEEDINGS IN THE DISTRICT COURT

On September 2, 1983, plaintiffs, Jeremiah Crockett and Erma Crockett, filed separate suits against Uniroyal, Inc., Southern Railway Co., and Seaboard System Railroad, Inc. seeking, respectively, recovery for Jeremiah Crockett's injuries and the wrongful death of Shedrick Crockett. These separate actions were consolidated by order of the district court.

Plaintiffs alleged that Jeremiah and Shedrick Crockett, as employees of Railcar, were injured while cleaning a tank car operated by Uniroyal. Plaintiffs claimed that Uniroyal (1) failed to provide the proper notice regarding the dangerous nature of the substance last contained in the car, (2) failed to follow DOT and EPA regulations regarding placards and manifests, and (3) misrepresented the propensities of the chemical last contained in the car. Plaintiffs claimed that Seaboard and Southern (1) failed to follow DOT and EPA regulations, and (2) failed to inspect the cars, require proper manifest documents, and place proper placards prior to and during the transportation. In their answers, the railroad defendants filed cross-claims against Uniroyal for contribution or indemnity. Defendant Uniroyal subsequently filed cross-claims for contribution or indemnity against the railroad defendants.

At a pretrial conference, plaintiff's counsel stated he could not prove Southern's negligence. The court thereafter entered an order and judgment on April 16, 1984 dismissing Southern as a party in plaintiff's complaint. The order and judgment stated that Southern should remain as a defendant to Uniroyal's cross-claim.

Southern subsequently filed a motion for summary judgment on Uniroyal's cross-claim for indemnity or contribution. Seaboard filed a summary judgment motion on both plaintiffs' claim for negligence and Uniroyal's cross-claim for contribution or indemnity. The district court, by order dated July 19, 1984, 592 F.Supp. 821, granted Seaboard's summary judgment motion on plaintiffs' claim and Uniroyal's cross-claim, and granted Southern's summary judgment motion on Uniroyal's cross-claim. The court's order of August 9, 1984 directed that final judgment be entered "on all claims adjudicated by the July 19, 1984 order." The court issued another order on August 9, 1984, apparently because some depositions were not on file when the July 19, 1984 summary judgment was granted. The court stated in its August 9, 1984 order that these depositions "in no way" affected his prior order. Final judgment was entered by the clerk on August 10, 1984.

This appeal was filed by Uniroyal on August 22, 1984. The appeal is from the district court's grant of summary judgment in favor of Seaboard and Southern and against Uniroyal on Uniroyal's contribution or indemnity claim. An issue exists as to whether Uniroyal has properly appealed the district court's grant of summary judgment in favor of Seaboard on the plaintiff's complaint.

Oral argument was had in this case on March 26, 1985. In the interim, and pursuant to this court's request, counsel for Uniroyal has advised us that his client has entered into a compromise agreement with the plaintiffs. However, that compromise was based upon an express reservation of all rights which Uniroyal may have to indemnity or contribution from the railroad defendants, Southern and Seaboard. Because those rights are the subject of the present Rule 54(b) appeal, the action before us is not moot and will be addressed in full.

We review the district court's grant of summary judgment. Accordingly, we must view any inferences to be drawn from the evidence in support of that motion in the light most favorable to Uniroyal. Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir.1984). To the extent that summary judgment is based upon the district court's conclusions of law, those conclusions will be "subject to the same standard of appellate review as any question of law raised upon appeal," Morrison v. Washington County, Alabama, 700 F.2d

                678 (11th Cir.1983), a plenary review of correctness by this court.   See Federal Deposit Insurance Corp. v. Dye, 642 F.2d 837, 841 (5th Cir. Unit B 1981).  Additionally, because this case arises on appeal from a diversity action brought in federal court in Georgia, we decide substantive issues on the basis of Georgia law and procedural issues on the basis of federal procedural law.  See e.g., 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4509 (1982)
                
THE EFFECT OF PRIOR RULINGS IN THIS CASE

An initial argument brought both by Southern and Seaboard is that, for differing reasons, the appellant is precluded from asserting the liability of the railroad defendants for indemnity or contribution. The preclusion assertedly arises out of prior rulings of the district court effectively determining on the merits that the railroad defendants are not liable to plaintiffs in negligence. The railroad defendants argue that the finding of no negligence as between themselves and the plaintiffs is a conclusive determination of no joint negligence as between the railroad defendants and Uniroyal. We examine these claims individually.

Seaboard

Seaboard's principal argument on this point is that Uniroyal has not appealed from the determination of the trial court that Seaboard was not negligent in performing its duty to the plaintiffs. Under Georgia law defendants are joint tortfeasors when separate and distinct acts of negligence on their parts concur as the proximate cause of an injury. Reeves v. McHan, 78 Ga.App. 305, 307, 50 S.E.2d 787, 789 (1948). In the absence of an issue as to...

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