BENDIX-WESTINGHOUSE, ETC. v. LATROBE DIE CAST. CO.

• Decision Date: 01 October 1976
• Docket Number: Civ. A. No. C-4111.
• Citation: 427 F. Supp. 34
• Parties: BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE COMPANY, Plaintiff, v. LATROBE DIE CASTING COMPANY, Defendant.
• Court: U.S. District Court — District of Colorado

427 F. Supp. 34

BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE COMPANY, Plaintiff, v. LATROBE DIE CASTING COMPANY, Defendant.

Civ. A. No. C-4111.

United States District Court, D. Colorado.

October 1, 1976.

COPYRIGHT MATERIAL OMITTED

Thomas H. Barrows, Weller, Friedrich, Hickisch & Hazlitt, Denver, Colo., for plaintiff.

Kenneth C. Groves, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Judge.

I STATE PROCEEDINGS

This is an action for indemnification arising out of a judgment recovered in the state courts of Colorado, Bradford v. Bendix-Westinghouse Auto. Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973), cert. denied January 14, 1974. The state suit was a products liability case arising out of the failure of an air brake apparatus assembled by Bendix-Westinghouse Automotive Air Brake Co. Bendix, a Delaware corporation. The brake assembly was part of the original equipment in a 1955 Mack Truck owned and operated by Christensen Brothers Trucking and Excavating Co. Christensen. In 1969, the brake failed when applied, and the loaded truck struck Mrs. Bradford's automobile, injuring her. Mrs. Bradford sued Bendix. The trial judge instructed the jury on two theories: strict liability and negligence. The jury returned a general verdict of $58,000 against Bendix. Bendix's Third-party Complaint against Christensen was dismissed. The Colorado Court of Appeals affirmed. Bradford v. Bendix, supra.

II BENDIX'S CLAIM

In this action, Bendix is attempting to obtain indemnification from the Latrobe Die Casting Co. Latrobe, a Pennsylvania corporation, which manufactured the base of the brake assembly. Bendix asserts that the accident was primarily caused by a "cold shut" in the right ear of the assembly base. A "cold shut" is a spot in the metal which does not properly fuse during the casting process.

In order to determine whether Latrobe has a duty of indemnification to Bendix, it was necessary for us to retry substantially all the products liability issues, including expert and other testimony, inherent in the prior state action.

We find that Bendix has not established that the "cold shut" was the primary cause of the accident. Therefore, Bendix is not entitled to indemnification from Latrobe.

III ACCIDENT CAUSATION

As graphically described in Bradford v. Bendix, supra, the brake assembly consists of four parts: pedal, base, fulcrum pin (which fits through both ears of the base and holds the pedal to the base), and the cotter pin (which fits through the left ear of the assembly and holds the fulcrum pin in place). The evidence establishes, as it did in state court, that several mechanical failures caused the pedal to become detached from the base, rendering the assembly inoperative. Through improper maintenance, the fulcrum pin was inserted backwards through the ears of the base, and the cotter pin was not replaced. With nothing to prevent lateral movement of the fulcrum pin, it became disengaged from the left ear of the base. The ordinary and necessary application of the brake pedal by the truck driver consequently exerted great pressure upon the right ear of the base. The presence of the "cold shut" had already weakened the base by approximately twenty percent. The right ear fractured through the "cold shut," and the fulcrum pin became totally disengaged from the base.

IV INDEMNIFICATION AMONG JOINT TORTFEASORS

Narrowly stated, the pivotal issue in this suit is whether the presence of the "cold shut" was the "primary and proximate" cause of the breakdown of the assembly. Jacobson v. Dahlberg, 171 Colo. 42, 464 P.2d 298 (1970). In a peripheral holding, the Colorado Court of Appeals in Bradford affirmed the dismissal of Bendix's indemnification claim against Christensen, apparently on the ground that Christensen owed a different type of duty to Mrs. Bradford than that owed by Bendix. Bradford, 517 P.2d at 415. The state court suggested, however, that an assembler (Bendix) may be entitled to indemnification by a manufacturer (Latrobe) that supplied it with a defective part. Id. In this situation, where the duties running to the injured party are similar, the difference between primary and secondary liability depends on the degree of fault. This is pre-eminently a factual determination. Bass v. United States, 379 F.Supp. 1208 (D.Colo.1974); Zimmerman v. Baca, 346 F.Supp. 172 (D.Colo.1972); Great American Ins. Co. v. "Quick-Way" Shovel Co., 204 F.Supp. 847 (D.Colo.1962); Bradford, supra; Jacobson v. Dahlberg, supra; Parrish v. DeRemer, 117 Colo. 256, 187 P.2d 597 (1948); Colo. & S. Ry. Co. v. Western Light & Power Co., 73 Colo. 107, 214 P. 30 (1923). Despite Colorado's comparative negligence statute, there is no right of contribution among joint tortfeasors. Bass, supra; Zimmerman, supra; Bradford, supra.

V STATUTE OF LIMITATIONS

Latrobe contends that Bendix is barred by the statute of limitations from bringing this action for indemnification, because the statute began to run in the mid-1950's, when Bendix discovered that there were "cold shuts" in the pedal bases. Latrobe argues that Bendix ought to have brought an anticipatory action for indemnification at that time, and that Bendix would have been barred from obtaining indemnification from Latrobe even in 1969, when the accident occurred. We disagree.

A cause of action for indemnification arises when the original judgment is paid by the indemnitee. Fruehauf Trailer Co. v. Gilmore, 167 F.2d 324 (10th Cir. 1948); Francosteel Corp. v. S. S. Tien Cheung, 375 F.Supp. 794 (S.D.N.Y.1973); Fidelity and Casualty Co. of N. Y. v. J. A. Jones Construction Co., 200 F.Supp. 264 (E.D.Ark. 1962), aff'd. 325 F.2d 605 (8th Cir. 1963). We feel it was not reasonable for Bendix to anticipate that an accident would result from the presence of such "cold shuts," considering the substantial margin of safety that remained. See section VII, infra. In the absence of other mechanical failures, the accident that occurred here was not reasonably foreseeable. If an assembler or distributor were forced to bring a declaratory suit for indemnification against the parts supplier years in advance of any accident, the courts would be needlessly flooded with actions for contingencies that might never occur. It is also significant that Bendix notified Latrobe of the filing of Mrs. Bradford's complaint, and afforded Latrobe an opportunity to take up the defense in that case.

VI COLLATERAL ESTOPPEL

Both Bendix and Latrobe contend that principles of collateral estoppel support their positions. Bendix argues that the decision of the state court binds this Court to the following findings: (a) that there was a defect in the pedal base; (b) that such defect was unreasonably dangerous; and (c) that such defect was the proximate cause of the accident.

On the other hand, Latrobe contends that the prior decision binds this Court to the findings (a) that Bendix was negligent and (b) that there was a defective design by Bendix. In our view, a study of the state court pleadings, transcript and appellate briefs reveals that neither party is correct in its application of the principles of collateral estoppel.

Collateral estoppel requires that proof of the defective condition was an essential element of the final judgment in the prior case. Westric Battery Co. v. Standard Electric Co., Civ. Action No. C-1752 (D.Colo. Sept. 21, 1974), aff'd 522 F.2d 986 (10th Cir. 1975); Ratcliff v. Kite, 36 Colo. App. 261, 541 P.2d 88 (Colo.App.1975); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396, 399 (1974); Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892 (1942). A careful reading of the opinion of the Colorado Court of Appeals reveals that the jury could have based its verdict on the existence of a defective design, or of a defect in the base. Bradford, 517 P.2d at 412. Further, the general verdict rendered by the jury in the state action could have been based either upon a strict liability theory, or upon negligence. Although we will discuss the issue of indemnification under both theories, only the determination of Bendix's liability is binding on this Court.

VII INCONSISTENT PLEADINGS IN STATE AND FEDERAL CASES

Latrobe argues that Bendix is estopped from asserting that the defect in the base was the primary cause of the accident, because this position is inconsistent with its pleading in Bradford. Latrobe cites two cases in support of this argument, Wells and Associates v. Cardinal Properties, Inc., et al., 543 P.2d 1275 (Colo.App.1975) and Wigton v. McKinley, 122 Colo. 14, 221 P.2d 383 (1950), both of which involve inconsistent pleading in the same case. Latrobe also relies upon 31 C.J.S. Estoppel § 119. The general rule therein stated is that a plaintiff is estopped from pleading inconsistently in a subsequent case against the same party. Some courts extend this rule to include subsequent cases against different parties, but only where the plaintiff's position in the prior case was successfully maintained. Id. at 635-636. Here, Bendix lost on its position in the prior case.

Although Bendix is not estopped from asserting a different position in this case, both parties have stipulated to the admissibility of the full trial and appellate records of the state court action. Therein, it was the position of Bendix that the primary and proximate cause of the accident was the fact that the fulcrum pin became disengaged from the left ear of the base, placing extraordinary pressure on the defective right ear. See Bendix's Brief in the Court of Appeals 7-8. Bendix's expert in the state case, Professor Crawford, testified that even with the presence of the "cold shut," the ear of the base would withstand twelve times the maximum foreseeable force that would be applied to the brake pedal. Id. at 8-9. Only the fact that the pin became disengaged, and not the "cold shut," caused the accident. Id. Having heard all the facts of the case, we agree with this analysis. We expressly...