923 F.2d 855 (6th Cir. 1991), 90-5039, Scott v. Stran Bldgs.

Docket Nº:90-5039.
Citation:923 F.2d 855
Party Name:Drura SCOTT, Plaintiff-Appellant, v. STRAN BUILDINGS, National Steel Products Company, AMCA International Corporation, and Empire Steel, Inc., Defendants-Appellees and Third-Party Plaintiffs, Empire Steel, Inc., Third-Party Defendant.
Case Date:January 16, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 855

923 F.2d 855 (6th Cir. 1991)

Drura SCOTT, Plaintiff-Appellant,

v.

STRAN BUILDINGS, National Steel Products Company, AMCA International Corporation, and Empire Steel, Inc., Defendants-Appellees and Third-Party Plaintiffs,

Empire Steel, Inc., Third-Party Defendant.

No. 90-5039.

United States Court of Appeals, Sixth Circuit

January 16, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Western District of Kentucky, No. 85-00205; Baloutuie, Jr., J.

W.D.Ky.

AFFIRMED.

Before MILBURN, BOGGS and SUHRHEINRICH, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Drura Scott, d/b/a Scott Farms, appeals the district court's grant of summary judgment for defendants-appellees Stran Buildings, National Steel Products Company, and AMCA International Corporation 1 in this diversity action to recover damages sustained from the premature deterioration of two large steel buildings manufactured by Stran. For the reasons that follow, we affirm.

I.

A.

Scott originally filed this action on September 25, 1985, in the Circuit Court of Henderson County, Kentucky, alleging that the premature deterioration of two large steel buildings "purchased from Empire Steel, Inc., a distributor and agent of defendants ... caused breach of contract, breach of express warranty, breach of implied warranty, breach of warranty [of] fitness for a particular purpose and through [the] doctrine of res ipsa loquitur and nigligence [sic] or strict liability has caused the plaintiff to suffer" loss of use of the buildings and replacement costs. J.A. 16-17. Scott did not name Empire Steel as a defendant.

On October 16, 1985, Stran removed the action to the federal district court, and Stran later filed a third-party complaint against Empire. On September 6, 1988, Stran filed a motion for summary judgment which was granted in an order entered October 24, 1989, explained by a memorandum of that same date. The district court dismissed Scott's claims against all defendants and dismissed the third-party complaint as moot. Scott filed a timely motion for reconsideration which the district court denied on December 5, 1989. This timely appeal followed.

B.

Drura Scott, doing business as Scott Farms, bought two 50 feet by 1,000 feet metal buildings directly from Empire Steel, Inc., for the purpose of housing large numbers of cattle. The buildings were manufactured by Stran. Scott Farms took delivery of the buildings and erected the buildings with its own crew. During a light snowfall approximately four to five years after the buildings were erected, large portions of both buildings collapsed. The parties agree that the collapse was the result of corrosion to the buildings which was accelerated in the corrosive environment of confined cattle feeding.

When Drura Scott decided to institute a system of confined cattle feeding, he informed his brother and farm manager, Emerson Scott, of his decision and left the details to Emerson Scott. Since Empire Steel was a large and reputable builder and distributor of metal buildings, and had given Drura Scott satisfactory service in the past, Emerson Scott contacted Empire's representative, Earl Roehm.

In a deposition, Emerson Scott testified that he essentially gave Roehm the dimensions of the buildings and left the design of the buildings to Empire. Neither Emerson Scott nor Drura Scott had any direct contacts with Stran. In his deposition, Emerson Scott further testified that he was given no oral or written warranties, but later, in an affidavit, Emerson stated that while reviewing some documents he remembered that Roehm had indicated that the buildings were "20-20-20 buildings" meaning that they had a twenty-year life span, a twenty-pound wind load, and a twenty-pound snow load capacity. Emerson's affidavit is corroborated by an affidavit of Roehm.

The possibility that Empire was acting as an agent of Stran was explored during depositions of Ed Abel, a regional manager for Stran, and Earl Roehm, the representative of Empire who dealt directly with Scott Farms. Abel classified Empire as a builder and/or dealer of Stran products. Abel acknowledged that Stran's relationship with Empire went back as far as 1965, and Abel characterized Empire as "a large and very good dealer." Abel also acknowledged that Stran periodically offered incentive trips to dealers such as Empire and to their representatives. Stran also periodically paid part of its dealers' advertising costs.

Although Emerson Scott testified that design of the buildings was left primarily to Empire, Roehm testified that the materials and design were left primarily to Stran. According to Roehm, Empire had no involvement in deciding the materials and design of Scott Farms' buildings other than providing an anchor bolt layout. Roehm did not remember any discussion with Scott Farms about the possibility of premature corrosion other than alerting someone of the need to coat the lower portion of some support columns with a protective coating.

Purchase orders and order acknowledgments list Empire Steel as the builder, Emerson Scott, d/b/a Scott...

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