Bachmeier v. Wallwork Truck Centers, 930077

• Decision Date: 26 October 1993
• Docket Number: No. 930077,930077
• Citation: 507 N.W.2d 527
• Parties: John E. BACHMEIER, and Mildred Bachmeier, the Surviving Father and Mother of Steven Michael Bachmeier, Decedent, and the Estate of Steven Michael Bachmeier, Deceased, Plaintiffs and Appellants v. WALLWORK TRUCK CENTERS, Defendant and Kenworth Truck Company, a Division of Paccar, Inc., Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 527

507 N.W.2d 527

John E. BACHMEIER, and Mildred Bachmeier, the Surviving Father and Mother of Steven Michael Bachmeier, Decedent, and the Estate of Steven Michael Bachmeier, Deceased, Plaintiffs and Appellants v. WALLWORK TRUCK CENTERS, Defendant and Kenworth Truck Company, a Division of Paccar, Inc. Defendant and Appellee.

Civ. No. 930077.

Supreme Court of North Dakota.

Oct. 26, 1993.

Michael Ward (argued), Eaton, Van de Streek & Ward, Minot, for plaintiffs and appellants.

Christine A. Hogan (argued), Pearce & Durick, Bismarck, for defendant and appellee.

NEUMANN, Justice.

John E. Bachmeier et al. (Bachmeier) appeal from the Order granting summary judgment, and Judgment for costs entered by the District Court for Ward County, Northwest Judicial District. We reverse and remand.

This appeal comes to us from the granting of PACCAR Inc.'s (PACCAR) motion for summary judgment. The relevant facts are not in dispute. Bachmeier brought this action claiming strict product liability, negligence, and breach of warranty against PACCAR after their son, Steven Bachmeier, died in an accident while riding as a passenger in a 1979 Kenworth truck manufactured by PACCAR. The likely cause of the accident was the breaking of the truck's right front hub. On October 22, 1985, while traveling down the Ohio Turnpike, the right front hub of the truck broke, the truck left the roadway and overturned, resulting in injuries which caused Steven's death.

Prior to the bringing of this product liability action against PACCAR, Bachmeier brought a wrongful death action against the owner of the truck. The owner's insurer, Great West Casualty Company (Great West), hired a metallurgical engineer, Dr. Carl Loper (Loper), to examine the hub. In the course of this examination, Loper took a series of photographs of the fractured hub and prepared a series of three preliminary reports. In his first report, Loper concluded that the fracture of the hub was a fatigue fracture that resulted from excessive stresses to the hub as a result of bearing damage. He found no design or manufacturing problems. In his third report, Loper concluded that the bearing damage he observed resulted from insufficient lubrication. The wrongful death action against the owner of the truck was settled out of court. On August 14, 1986, in exchange for $60,000.00,

Bachmeier signed a Pierringer Release ¹ of their claim against the owner of the truck. One day later, on August 15, 1986, Great West wrote to Loper telling him that the case had settled and he could dispose of the parts in his possession. Loper then disposed of the hub within three days.

The products liability suit against PACCAR was commenced on October 15, 1987. The products liability claim is based upon a design defect theory. Bachmeier has retained an engineering and design expert, G.A. Tomlinson (Tomlinson), and has also retained Loper as a consultant. PACCAR's defenses to this suit include the contention that it was lack of maintenance and lubrication which caused the hub to fracture, and not faulty design.

On February 18, 1992, PACCAR filed a Motion for Summary Judgment of Dismissal. This motion was based on two legal theories. The first theory argued that without the destroyed hub, Bachmeier was unable to prove the defect theory of the claim. The second theory was that Bachmeier's failure to preserve the hub resulted in unreasonable prejudice to PACCAR due to PACCAR's deprivation of the opportunity to examine the hub and establish and prove its theory of defense. In an order dated September 2, 1992, the trial court denied PACCAR's motion for summary judgment. The trial court In order to clearly analyze the issues on appeal, we find it helpful to clarify which legal theories do not apply to this analysis. Contrary to some of the contentions of the parties, upon reading the order granting summary judgment, it is evident that the trial court's order was not based on Rule 37 nor on Rule 56 of the North Dakota Rules of Civil Procedure.

                found that because there was some evidence of PACCAR's liability, summary judgment was not appropriate at that time.  Acknowledging the potential for prejudice due to the destruction of the hub, the trial court decided that the existence or extent of this prejudice would be best determined after the commencement of trial.  In addition, the trial judge reserved the right to either reconsider his decision or reconsider further motions regarding this matter.  Thereafter, on January 15, 1993, on its own motion, the trial court reexamined and reconsidered PACCAR's motion for summary judgment.  Upon reconsideration, the trial court set aside the Order dated September 2, 1992, and granted PACCAR's motion for summary judgment.  The trial court's rationale was that without the hub, PACCAR would be deprived of the defense of lack of lubrication. 2  Bachmeier appeals from this Order granting summary judgment, and Judgment awarding costs.  We reverse and remand
                

RULE 37

Bachmeier argues that the trial court's order granting summary judgment was a Rule 37 sanction. We disagree. Rule 37 addresses sanctions for failure to make discovery, and provides for sanctions for those who do not cooperate with discovery. See James L. Underwood, A Guide to Federal Discovery Rules, 59-63 (1979 & Supp.1983); Rule 37, N.D.R.Civ.P. Bachmeier does not fit into this category. There was no order issued or violated, nor does there appear to have been a refusal to respond to discovery requests. The parties simply learned that the prior defendant's expert had destroyed the hub. Specifically, Rule 37(d)(3) addresses discovery sanctions when a party fails to respond to requests for inspection under Rule 34 of the North Dakota Rules of Civil Procedure. Rule 34(a) states the scope of Rule 34.

"(a) Scope. Any party may serve on any other party a request

(1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy any designated documents ..., or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served...."

Rule 34(a), N.D.R.Civ.P. (emphasis added). A large number of the cases cited as authority in both Bachmeier's and PACCAR's briefs are Rule 37 sanction cases for failure to make discovery. Although some of these cases are helpful to the extent they address problems which frequently arise when evidence has been lost or destroyed, they are not directly on point. This case is distinguishable from these Rule 37 cases in that Bachmeier never had possession, custody, or control of the hub. In addition, the insurance company which did have control of the hub is not a party in interest in the present case. This is not a case where a party transferred possession of a needed item to a nonparty in an attempt to frustrate discovery. Although there may be situations where a party may be required to obtain an There are two primary reasons, then, that the order granting summary judgment could not have been invoked under the power of Rule 37. First, there was never a discovery order issued or violated, and the record reflects no failure to respond to a discovery request. Second, any Rule 34 request for Bachmeier to produce the hub for discovery purposes would have been inapplicable, because Bachmeier never had possession, custody, or control of the hub. It follows that the imposition of a Rule 37 order compelling discovery and a subsequent imposition of sanctions would have been invalid. For these reasons we find the trial court's authority to grant summary judgment did not flow from Rule 37. See Unigard Sec. Ins. v. Lakewood Engineering & Mfg., 982 F.2d 363 (9th Cir.1992).

item from a nonparty, we are not convinced that this is such a case. Although Bachmeier could have requested the hub from Great West, this in and of itself did not give him a right to possession of the hub. The hub remained in the truck owner's control. The appropriate method for discovery of items in nonparty possession is by a subpoena duces tecum. Rule 45, N.D.R.Civ.P.

RULE 56

One of PACCAR's arguments is that the trial court's order granting summary judgment was based on Rule 56 of the North Dakota Rules of Civil Procedure. We disagree with this contention.

"Summary judgment is a procedural device which can be used to promptly and expeditiously dispose of a controversy without a trial, if there is no dispute as to any material issues of fact or inferences which may be drawn from undisputed facts, or when only a question of law is involved."

United Elec. Service & Supply, Inc. v. Powers, 464 N.W.2d 818, 819 (N.D.1991). The trial court's order granting summary judgment was not based upon this traditional application of Rule 56. The order granting PACCAR's motion for summary judgment does not address whether there were material facts in dispute or differing inferences to be drawn. In fact, the trial court's initial response to the motion was to deny it on the grounds that some evidence existed as to PACCAR's liability. The order granting summary judgment does not appear to be based upon a reversal of the initial finding of evidence of liability, but instead focuses on a finding of prejudice to PACCAR. It is not founded on the traditional grounds that the moving party was entitled to judgment as a matter of substantive law.

The parties' briefs discuss and cite cases in which the court dismissed the action immediately after the exclusion of some evidence which was necessary for the party to establish a prima facie case. E.g., American Family Insur. Co. et al. v. Village Pontiac-GMC, Inc. et al., 223 Ill.App.3d 624, 166 Ill.Dec. 93, 585 N.E.2d 1115 (2d Dist.1992) (granted motion to bar evidence, then granted summary judgment motion); Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911 (1987) (excluded...