Ayala By and Through Ayala v. Joy Mfg. Co., Civ. A. No. 82-JM-1907

• Citation: 580 F. Supp. 521
• Decision Date: 09 February 1984
• Docket Number: Civ. A. No. 82-JM-1907,83-JM-580.
• Parties: Patsi AYALA, Donna M. Ayala, Daisy M. Ayala, Dixon W. Ayala, by and through their mother and next of friend, Patsi AYALA, Sylvia Cook, Kyle D. Cook, Jr., Donna Cook, Angela Cook, by and through their mother and next friend, Sylvia Cook, Sheryl Lucero, Travis Lucero, by and through his mother and next of friend, Sheryl Lucero, Kraig N. Mead, Brian T. Mead, by and through their mother and next of friend, Pamela Mead, Alma B. Tucker, Gavin Litwiller, Sharyn Litwiller, Karen Greene, Vernon F. Lincoln, Loretta M. Patch, Rodney Allan Patch, Michael Kent Patch, Brenda Louise Patch, Stacey Marie Patch, by and through their mother and next of friend, Loretta M. Patch, Hugh W. Pierce, Alice B. Pierce, Cheryl Sharp, Jarret M. Sharp, Wendy I. Sharp, Glen W. Sharp, Jr., Amy E. Sharp, James E. Sharp, by and through their mother and/or next of friend Cheryl Sharp, Linda Vetter, Jennifer K. Vetter, Michael T. Vetter, by and through their mother and next of friend, Linda Vetter, Plaintiffs, v. JOY MANUFACTURING COMPANY, a Pennsylvania corporation, McJunkin Corporation, a West Virginia corporation, Bacharach Instrument Co., a division of Ambac Industries, Inc., a Delaware corporation, Service Machine Co., a West Virginia corporation, Defendants. Myra Lynn GUTHRIE, Patricia Kathleen Guthrie, by and through their Mother and Next Friend, Judy GUTHRIE; Judy Guthrie, individually, Judy Guthrie, as Administratrix of the Estate of William Eugene Guthrie, deceased, Plaintiffs, v. JOY MANUFACTURING COMPANY, a Pennsylvania corporation, Mine Safety Appliances Co., a Pennsylvania corporation, McJunkin Corporation, a West Virginia corporation, Bacharach Instrument Co., a Division of Ambac Industries, Inc., a Delaware corporation, Service Machine Co., a West Virginia corporation, United States of America, Department of Labor, Mine Safety & Health Administration, Defendants.
• Court: U.S. District Court — District of Colorado

580 F. Supp. 521

Patsi AYALA, Donna M. Ayala, Daisy M. Ayala, Dixon W. Ayala, by and through their mother and next of friend, Patsi AYALA, Sylvia Cook, Kyle D. Cook, Jr., Donna Cook, Angela Cook, by and through their mother and next friend, Sylvia Cook, Sheryl Lucero, Travis Lucero, by and through his mother and next of friend, Sheryl Lucero, Kraig N. Mead, Brian T. Mead, by and through their mother and next of friend, Pamela Mead, Alma B. Tucker, Gavin Litwiller, Sharyn Litwiller, Karen Greene, Vernon F. Lincoln, Loretta M. Patch, Rodney Allan Patch, Michael Kent Patch, Brenda Louise Patch, Stacey Marie Patch, by and through their mother and next of friend, Loretta M. Patch, Hugh W. Pierce, Alice B. Pierce, Cheryl Sharp, Jarret M. Sharp, Wendy I. Sharp, Glen W. Sharp, Jr., Amy E. Sharp, James E. Sharp, by and through their mother and/or next of friend Cheryl Sharp, Linda Vetter, Jennifer K. Vetter, Michael T. Vetter, by and through their mother and next of friend, Linda Vetter, Plaintiffs, v. JOY MANUFACTURING COMPANY, a Pennsylvania corporation, McJunkin Corporation, a West Virginia corporation, Bacharach Instrument Co., a division of Ambac Industries, Inc., a Delaware corporation, Service Machine Co., a West Virginia corporation, Defendants.

Myra Lynn GUTHRIE, Patricia Kathleen Guthrie, by and through their Mother and Next Friend, Judy GUTHRIE; Judy Guthrie, individually, Judy Guthrie, as Administratrix of the Estate of William Eugene Guthrie, deceased, Plaintiffs, v. JOY MANUFACTURING COMPANY, a Pennsylvania corporation, Mine Safety Appliances Co., a Pennsylvania corporation, McJunkin Corporation, a West Virginia corporation, Bacharach Instrument Co., a Division of Ambac Industries, Inc., a Delaware corporation, Service Machine Co., a West Virginia

corporation, United States of America, Department of Labor, Mine Safety & Health Administration, Defendants.

Civ. A. Nos. 82-JM-1907, 83-JM-580.

United States District Court, D. Colorado.

February 9, 1984.

William A. Trine, David W. Griffith, Williams, Trine, Greenstein & Griffith, P.C., Boulder, Colo., Stephen J. Pettit, Knight & Griffith, Cullman, Ala., Walter E. Brown, III, Stephen J. Worrell, Glenwood Springs, Colo., Laird T. Milburn, Dufford, Waldeck, Ruland, Wise & Milburn, Grand Junction, Colo., for plaintiffs.

Bruce A. Menk, Hall & Evans, Albert E. Zarlengo, Zarlengo, Mott & Zarlengo, Bruce F. Fest, Wood, Ris & Hames, Lowell Fortune, Fortune & Lawritson, P.C., Denver, Colo., Brenda Moss Green, Trial Atty., Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., Henry L. Solano, Asst. U.S. Atty., Denver, Colo., for defendants.

ORDER

JOHN P. MOORE, District Judge.

THIS MATTER comes before the Court for determination of several motions to dismiss and for summary judgment. This action arises out of an accident which occurred on April 15, 1981, in a mine owned and operated by Mid-Continent Resources, Inc., near Redstone, Colorado. On that date, 15 miners were killed in a methane and coal explosion in the Dutch Creek No. 1 Mine. The complaints in the above-entitled actions are for the wrongful death of those miners.

Defendants in these actions are Joy Manufacturing Company ("Joy"), McJunkin Corporation ("McJunkin"), Bacharach Instrument Company ("Bacharach"), Service Machine Company ("Service Machine"), and the United States of America ("USA"). Defendants Joy, McJunkin, Bacharach, and Service Machine are the manufacturers of a continuous mining machine or component parts of that machine which allegedly caused the explosion. The claims against these defendants are products liability claims based on strict liability, negligence, and breach of express or implied warranty. The claim against the USA is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, and asserts that the mine inspection conducted by the Mine Safety and Health Administration was negligently performed.

There are currently pending five separate motions. Defendants Service Machine and Bacharach have each filed motions to dismiss the breach of warranty claims on the grounds that the Colorado Wrongful Death Act does not provide for claims based upon breach of warranty. These two defendants have also filed motions for partial summary judgment with respect to the breach of warranty claims. These motions assert that the breach of warranty claims are barred by the applicable statute of limitations. Defendant USA has filed a motion to dismiss or, in the alternative, for summary judgment. The USA contends that there is no cause of action against it for negligent inspection or, in the event that such a claim is actionable, that it is barred by the "discretionary function" exception to the Federal Tort Claims Act.

I.

Turning first to the motions to dismiss the wrongful death claims based upon breach of warranty, this issue is a matter of statutory construction. The Colorado Wrongful Death Statute, Colo.Rev.Stat. § 13-21-202, states as follows:

When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.

The question presented is whether an asserted breach of warranty is a "wrongful act," "neglect," or "default" which can provide the basis for a wrongful death action. Defendants Service Machine and Bacharach maintain that the statute must be strictly construed, and because claims for breach of warranty are not explicitly authorized, such claims must be disallowed. Plaintiffs contend that the statute should be liberally construed, and the terms "wrongful act" and "default" are broad terms which encompass breaches of warranty.

In my opinion, plaintiffs state the correct standard for interpretation. It is true that some courts have held that claims for breach of warranty are not actionable under wrongful death statutes similar to Colorado's. See Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973); Necktas v. General Motors Corp., 357 Mass. 546, 259 N.E.2d 234 (1970). The reasoning followed in those cases is that wrongful death actions are essentially punitive in nature, and because punitive damages are not recoverable for breaches of contract, no claim for wrongful death could be maintained for breach of warranty. Although there are no Colorado cases which have addressed this exact issue, Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949), makes clear the wrongful death remedy is not dependent upon the characterization of the action as either a tort or a contract action.

It is my conclusion that the better reasoned cases are those which hold that claims for breach of contract may be maintained as wrongful death actions. Dagley v. Armstrong Rubber Co., 344 F.2d 245 (7th Cir.1965); Hinton v. Republic Aviation Corp., 180 F.Supp. 31 (S.D.N.Y.1959); Greco v. S.S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557 (1938). Colorado's wrongful death statute refers to universally inclusive "wrongful acts," not simply tortious acts. Consequently, I perceive no basis for distinguishing breaches of contractual duties from breaches of tort duties in determining whether such breaches provide the basis for a wrongful death suit. Therefore, the motions to dismiss of defendants Service Machine and Bacharach shall be denied.

II.

Having concluded that the breach of warranty claims may be asserted under the wrongful death statute, it is then necessary to determine whether those claims are barred by the statute of limitations. Defendants Service Machine and Bacharach assert that the four-year statute of limitations for actions for breach of any contract for the sale of goods bars plaintiff's breach of warranty claims. Colo.Rev.Stat. § 4-2-725. According to that statute, such a cause of action accrues when the breach occurs, and for breach of warranty claims, the breach is deemed to occur at the time of delivery of the goods. Colo.Rev.Stat. § 4-2-725(2). Defendants argue that the goods which they supplied were delivered more than four years before October 5, 1982, the date of the filing of the Ayala complaint. Thus, according to defendants, plaintiffs' breach of warranty claims are untimely.

Plaintiffs assert that the controlling statute of limitations is not the one supplied by the Uniform Commercial Code, but instead is Colo.Rev.Stat. § 13-80-127.5, the Colorado "products liability" statute of limitations. That statute provides as follows:

(1) Notwithstanding any other statutory provisions to the contrary, all actions except those governed by section 4-2-725, C.R.S. 1973, brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product shall be brought within three years after the claim for relief arises and not thereafter.

Plaintiffs contend that their claims fall within the language of this statute inasmuch as their claims against the manufacturers are products liability claims for personal injury. Plaintiffs characterize their breach of warranty claims as more in the nature of tort claims and not contractual ones.

Plaintiffs' arguments ignore the plain language of both Colo.Rev.Stat. § 4-2-725 and Colo.Rev.Stat. § 13-80-127.5. First of all, § 4-2-725 specifically refers to causes of...