Howell v. Hartford Steam Boiler Inspection and Ins. Co., 92-5668

• Decision Date: 07 April 1993
• Docket Number: No. 92-5668,92-5668
• Citation: 991 F.2d 795
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Jessie Sueleen HOWELL, Administratrix of the Estate of Delmus E. Howell, Deceased, and Jessie Sueleen Howell, Individually, Plaintiffs-Appellees, v. The HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 795

991 F.2d 795

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Jessie Sueleen HOWELL, Administratrix of the Estate of

Delmus E. Howell, Deceased, and Jessie Sueleen

Howell, Individually, Plaintiffs-Appellees, v. The HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY,

Defendant-Appellant.

No. 92-5668.

United States Court of Appeals, Sixth Circuit.

April 7, 1993.

Before JONES and SUHRHEINRICH, Circuit Judges, and CONTIE, Senior Circuit Judge.

PER CURIAM.

The Hartford Steam Boiler Inspection and Insurance Company appeals the jury's verdict awarding $108,132.72 to Jessie Suellen Howell "to fairly and reasonably compensate the estate of Delmus E. Howell." Joint Appendix at 19. We affirm the district court's findings for the following reasons.

I.

On November 21, 1989, Delmus E. Howell ("decedent"), a boiler plant operator employed by the United States Army ("Army"), died from asphyxiation when carbon monoxide escaped from boiler number 4, one of several gas-fired boilers in the powerhouse referred to as Building 157 at Fort Campbell, Kentucky. The fifty-nine-year-old decedent had been a boiler plant operator with the Army for approximately twenty-two years.

Prior to the decedent's death, the Army had entered into a contract with defendant-appellant The Hartford Steam Boiler Inspection and Insurance Company ("Hartford Steam") whereby Hartford Steam agreed to perform periodic inspections of the Army's boilers throughout the United States and Panama. The contract, drafted by the Army, enumerated five types of high pressure boiler tests:

Type A--Internal and External Inspection.

Type B--Internal and External Inspection followed or preceded by External Inspection while under Hydrostatic test.

Type C--External Inspection under Steam Pressure.

Type D--External Inspection while under Hydrostatic test.

Type E--Internal and External Inspection of expansion tanks used with High Temperature Water Boilers.

Award/Contract at 100002. Though the contract fails to define these five types of high pressure boiler inspections in any greater detail, the contract does provide:

C.2.3. High pressure boilers will be inspected semiannually. The primary inspection will be both internal and external. The secondary inspection, an external inspection under steam pressure, will be made approximately 6 months later. The Contractor should plan on making two visits to each installation. Typically the Contractor will perform [a] Type A inspection on boilers not operating and a Type C for boilers that are operating. On the second visit, the boilers previously tested for Type A will be inspected for Type C and those that had Type C will be inspected for Type A. Thus, all boilers will have both Type A and Type C inspection [sic] performed annually.

....

C.3.3. Reports of inspection prepared by the Contractor shall set forth the physical condition of each object inspected as determined by inspection and shall list repairs or changes, if any, which the Contractor considers are required in order that safety and dependability of said object may meet the requirements of good engineering practices.

C.3.4. It is understood and agreed that the Contractor does not guarantee its inspections or reports and does not represent that its recommendations are necessary or that if such recommendations are followed, the equipment inspected will then be in serviceable condition. It is further understood and agreed that the Contractor will not be liable directly or indirectly by reason of any loss or damage to property or injury or death sustained by persons or any other loss, nor by reason of the liability of another therefore resulting from any accident to, or defect in, any equipment inspected; nor shall the Contractor be liable directly or indirectly of another therefore growing out of failure to make any inspection or any report.

Award/Contract at 100011-100012.

On March 22, 1989, Hartford Steam's inspector visited Fort Campbell and inspected boiler number 4 in Building 157. The "Boiler Inspection Report" indicates that a Type C ("external under steam") inspection was conducted. The inspector noted:

Internal Inspection (Describe Inspection Fully)--"N/A"

External Inspection (Condition of Seams, Tube Ends, Pipe Connections, Etc.)--"satisfactory"

External Inspection (Settings, Linings, Baffles and Boiler Supports)--"satisfactory"

Safety Valves--"lifted by hand; satisfactory"

Pressure Gage--"not tested"

Other Appliances--"satisfactory"

Regulators and Controls--"satisfactory"

March 22, 1989 Boiler Inspection Report at 1.

On September 26, 1989, a different Hartford Steam inspector conducted a Type A ("internal and external") inspection on boiler number 4 and noted:

Internal Inspection (Describe Inspection Fully)--"satisfactory"

External Inspection (Condition of Seams, Tube Ends, Pipe Connections, Etc.)--"satisfactory"

External Inspection (Settings, Linings, Baffles and Boiler Supports)--"satisfactory"

Safety Valves--"not tested"

Pressure Gage--"not tested"

Other Appliances--"satisfactory"

Regulators and Controls--"satisfactory"

September 26, 1989 Boiler Inspection Report at 1.

Following her husband's death, plaintiff-appellee Jessie Sueleen Howell ("Howell"), individually and as administratrix of her husband's estate, initiated this action in district court (diversity of citizenship jurisdiction) on November 20, 1990, under both tort (negligent inspection) and breach of contract theories of recovery. The district court subsequently dismissed Howell's breach of contract claim on summary judgment. Howell does not appeal that dismissal.

Howell tried her negligent inspection cause of action before the jury on March 2-5, 1992. On March 6, 1992, the jury determined that: Hartford Steam negligently inspected boiler number 4; Hartford Steam's failure to exercise ordinary care was a "substantial factor in causing the [decedent's] death"; the decedent's "percentage of fault" was 40%; Hartford Steam's "percentage of fault" was 60%; and, the damages awardable to Howell, "without regard to any allocation of fault," equalled $180,221.20. See Judgment in a Civil Case at 1-2. The district court judge reduced Howell's award by 40% (representing the decedent's "percentage of fault"), and ordered that Howell recover $108,132.72. Id.

On March 20, 1992, Hartford Steam timely filed "Defendant's Renewal of Motion for Judgment as a Matter of Law and Motion for New Trial." The district court denied Hartford Steam's motions on April 15, 1992. Hartford Steam thereafter filed a timely notice of appeal.

II.

The Role of Restatement (Second) of Torts Section 324A

On appeal, Hartford Steam argues:

The evidence is uncontroverted that the Type A and Type C inspections required by the contract did not require Hartford Steam to inspect the allegedly defective items; that the [National Board Inspection Code] as it existed in 1989 did not require Hartford Steam to inspect the allegedly defective items; and that Hartford Steam did not voluntarily undertake to inspect the allegedly defective items. Because absolutely no evidence exists that Hartford Steam undertook to inspect, either gratuitously or for consideration, the allegedly defective items, as a matter of law Hartford Steam cannot be held liable for negligent inspection of those items.

Appellant's Brief at 24.

In response, Howell maintains:

In the course of these two (2) inspections, Hartford Steam failed to identify and/or correct the defective items with respect to boiler # 4 which caused Mr. Howell's death.... Hartford Steam contends that the nature of its contractual undertaking was to perform what are deemed Type "A" and Type "C" inspections. The contract before us in this case is vague at best. The only contractual guidance afforded us as to the meaning of these terms is that a Type "A" inspection is an "internal and external" inspection and a Type "C" inspection is an "external inspection under steam pressure." The contract itself fails to define what items are to be inspected pursuant to these Type "A" and Type "C" inspections. Moreover, the contract is silent as to what standards these inspections are to be performed in accordance with.

Hartford Steam claims, however, that the scope of its contractual undertaking was to perform these otherwise contractually undefined Type "A" and Type "C" inspections, and that such inspections were to be performed in accordance with National Board Inspection Code, as such was the purported intention of the parties. Neither the words National Board Inspection Code, nor any reference thereto, can be found in this contract. Briefly stated, Hartford Steam contends that the inspections made pursuant to its contractual undertaking did not comprise the defective items which resulted in Mr. Howell's death. To the contrary, however, Hartford Steam "undertook" to inspect these same defective items, and did so negligently so as to cause Mr. Howell's death. Mr. Howell relied upon Hartford Steam's inspections and in inadvertently so doing, such resulted in his demise.

Appellees' Brief at 6-7 (citations omitted).

In Raymer v. United States, 660 F.2d 1136 (6th Cir.1981), cert. denied, 456 U.S. 944 (1982), this court determined that the Supreme Court of Kentucky would impose the requirements of section 324A of the Restatement (Second) of Torts when evaluating a cause of action based on negligent inspection if the Supreme Court of Kentucky were to address the issue. "We believe the Kentucky court would impose essentially the same requirements for recovery, whether or not it adopted the precise formulation of the Restatement." Id. at 1142-43.

Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for...