798 F.2d 700 (5th Cir. 1986), 84-2749, Koonce v. Quaker Safety Products & Mfg. Co.

Docket Nº:84-2749.
Citation:798 F.2d 700
Party Name:Rita KOONCE, et al., Plaintiffs-Appellees, v. QUAKER SAFETY PRODUCTS & MANUFACTURING COMPANY, and Delaware Valley Safeguards Company, Inc., Defendants-Appellants.
Case Date:August 15, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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798 F.2d 700 (5th Cir. 1986)

Rita KOONCE, et al., Plaintiffs-Appellees,



Valley Safeguards Company, Inc., Defendants-Appellants.

No. 84-2749.

United States Court of Appeals, Fifth Circuit

August 15, 1986

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Michael L. Dunn, Smead, Anderson & Dunn, Longview, Tex., for defendants-appellants.

Mike A. Hatchell, Tyler, Tex., for E.I. du-Pont and Angelica Uniform Group.

C. Wayne Dowd, Texarkana, Ark., for National Engineering Co.

Charles Attaway, Texarkana, Tex., for Koonce, et al.

Eric Eisenbraun, Gibson, Dunn & Crutcher, Harold F. Degenhardt, Dallas, Tex., for McGraw Edison Co.

Robert H. Frost, Dallas, Tex., for Automatic Sprinkler Co.

Appeals from the United States District Court for the Eastern District of Texas.

Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

George Alvin Koonce was injured in a flash fire that occurred at an ammunitions plant where he was employed. He sustained serious burns, which resulted in his death within a few weeks. His surviving spouse and children filed this wrongful death and survival diversity suit, based on the Texas law of strict liability in tort, against Quaker Safety Products & Manufacturing Corporation (Quaker Safety), the manufacturer of the safety suit worn by Koonce when he was injured, and Delaware Valley Safeguards Company, Inc. (Delaware Valley), the distributor of the suit. These defendants filed third-party complaints against the manufacturers of other safety devices in use at the time of the accident. Prior to trial, the district court dismissed these third-party defendants, however, because they were sued after the applicable statute of limitations had run. At trial, the jury found that Quaker Safety and Delaware Valley had failed to provide adequate warnings and instructions to Koonce regarding the limitations of the protection provided by the suit and that such failure was a producing cause of his injuries and death. The jury apportioned the fault-based causation at five percent for defendants, twenty percent for Koonce, and seventy-five percent for "third parties," the third-party manufacturers which had been previously dismissed. The court entered judgment for plaintiffs for eighty percent of the total damages against Quaker Safety and Delaware Valley jointly and severally. 1 Defendants appeal the judgment, claiming several errors, including the dismissal of the third-party defendants.

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Facts and Proceedings Below

Koonce was employed by Day & Zimmermann, Inc. (Day & Zimmermann), which operated the Lone Star Army Ammunition Plant for the United States Army. The United States government owned the plant, equipment, and materials. 2 On November 27, 1979, Koonce was working in a mixing room located in a bay approximately nine feet deep, with three walls of thick concrete and one wall and a ceiling made of a light plastic "blow out" material. The room housed a mixing bowl, manufactured by third-party defendant National Engineering Company (National Engineering). The bowl was equipped with muller wheels, which mixed ingredients to form a pyrotechnic powder used in ammunition. The mixing room also contained a water deluge system composed of ultraviolet sensors, manufactured by third-party defendant McGraw-Edison Company (McGraw-Edison), which were intended to sense any spark from the materials and activate spray from deluge water nozzles located throughout the room. The deluge water nozzles were manufactured by third-party defendant Automatic Sprinkler Company (Automatic Sprinkler). In addition, Day & Zimmermann's standard operating procedure required Koonce to wear all cotton undergarments, "Nomex" coveralls, and an aluminized safety breakaway suit. The "Nomex" coveralls were supplied by third-party defendants Angelica Uniform Company and Angelica Uniform Group (collectively Angelica), and were made of material manufactured by third-party defendant E.I. duPont de Nemours & Company, Inc. (duPont). The alumunized gloves, headpiece, and safety suit were manufactured by defendant Quaker Safety and distributed through defendant Delaware Valley. 3

At the time of the accident, Koonce was performing his assigned task of manually scraping down material that had collected around the wheels of the mixing bowl. Apparently, friction from the manual scrape down produced a spark, igniting the pyrotechnic mixture. The fire activated the water deluge system, but not before a large amount of heat had been generated. 4 Koonce received serious burns covering approximately sixty-two percent of his body, which eventually resulted in his death on December 18, 1979. The aluminized safety suit worn by Koonce was a breakaway suit, designed to be pulled off quickly. It was about knee-length, open at the bottom and at the end of the sleeves. The suit also included aluminized gloves. The headpiece had screen-covered openings over the ears for ventilation. The suit was intended to protect the wearer from radiant heat--the heat and flames that radiate directly from a fire. Koonce's injuries and death resulted from convective heat--the oven-like heat that expands to fill up space without radiating directly from the heat source. It appears that convective heat generated by the flash fire entered the suit at its openings, causing Koonce's severe burns.

On October 9, 1981, Rita Koonce, Gerald Alvin Koonce, and Carl Edwin Koonce, the surviving wife and children (all adults) of the deceased, filed this action against Quaker Safety and Delaware Valley. Summons were served upon these defendants on October 15, 1981. Plaintiffs complained that the safety suit was defective in design and lacked proper warnings or instructions regarding its safety limitations. Quaker

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Safety filed its original answer on November 13, 1981, and Delaware Valley answered on November 19, 1981. On February 23, 1983, defendants were permitted to file third-party claims against duPont, Angelica, Automatic Sprinkler, National Engineering, and others. 5 The district court dismissed with prejudice all the third-party actions on October 15, 1984, based on the two-year statute of limitations. 6

Plaintiffs then tried their case against Quaker Safety and Delaware Valley. The jury found for defendants on the defective design issues, but found that the failure to provide adequate warnings and instructions was a producing cause of Koonce's injuries and death. In answer to a comparative causation issue, the jury allocated causative fault at five percent to defendants, twenty percent to Koonce for his contributory negligence, and seventy-five percent for the "fault" of "third parties." The instructions indicate that "third parties" referred to the manufacturer or suppliers of the other safety devices in use at the time, and the parties have so treated the case on this appeal. The jury awarded $250,000 damages to plaintiff Rita Koonce, but no damages to the estate of the deceased or to either of the children. Plaintiffs filed a motion for partial new trial claiming inadequacy of the damages. The parties then stipulated to inserting in the verdict $100,000 damages for the pain and suffering of the deceased and $25,000 damages for the claims of each child. In addition, the parties previously had stipulated to $16,460 medical expenses and $2,871.85 funeral expenses. The district court then entered judgment for plaintiffs against Quaker Safety and Delaware Valley, awarding all damages minus the twenty percent attributed to Koonce. The eighty percent of the damages assessed against defendants totaled $335,465.48.


I. Dismissal of Third-Party Defendants

Defendants Quaker Safety and Delaware Valley argue that the district court erred in dismissing their contribution claims against the third-party defendants. The third-party defendants rely primarily on Powell v. Charles Offutt Co., 576 F.Supp. 272 (E.D.Tex.1983), aff'd without opinion, 731 F.2d 886 (5th Cir.1984).

In Offutt, the district court decided that under Texas law a defendant is not entitled to contribution or indemnity from third-party defendants who were joined after the statute of limitations had run on the plaintiff's claims against them. 576 F.Supp. at 277. The district court there relied on Texas cases holding that indemnity or contribution, being derivative of the primary plaintiff's cause of action, is not recoverable from a party against whom the injured party has no cause of action. It reasoned that to allow a defendant to recover against a party whom the plaintiff could not sue would "allow the injured plaintiff to circumvent the particular statutory or constitutional bar that precludes a direct right of action." 576 F.Supp. at 274. The defendant in Offutt appealed the denial of its contribution and indemnity claims, and a panel of this Court affirmed on summary

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calendar. The affirmance was entirely without opinion under our local rule 47.6. 731 F.2d at 886.

In the present case, plaintiffs' claims are based on injuries that resulted in death; thus, plaintiffs' actions must have been commenced within two years of the death of the injured party. 7 Koonce died from his severe burns on December 18, 1979. Plaintiffs filed their suit against defendants on October 9, 1981, and summons were served upon both Quaker Safety and Delaware Valley on October 15, 1981. By the first time any action by anyone was commenced against the third-party defendants, namely, with the filing of defendants' third-party complaints in February 1983 (we disregard the October 1982 third-party complaints which were withdrawn without service having ever been attempted, see note 5, supra ), any...

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