Bishop v. GenTec Inc.

Decision Date29 March 2002
Docket Number No. 20000467, No. 20000492.
PartiesPatty BISHOP, individually and as personal representative of the Estate of Douglas J. Bishop, deceased, Bart J. Bishop, Douglas Wade Bishop, Bradley David Bishop, and Joshua Lee Bishop, Plaintiffs and Appellants, v. GENTEC INC., a Kentucky corporation, and John Does I-V, Defendants, Third-Party Plaintiff, Appellee, and Cross-Appellant. v. Valley Asphalt, Inc., a Utah corporation, Third-Party Defendant and Appellant.
CourtUtah Supreme Court

Allen K. Young, Springville, for plaintiffs Paul M. Belnap, Andrew D. Wright, Darren K. Nelson, Salt Lake City, for GenTec.

Robert G. Gilchrist, Mark L. McCarty, Brandon B. Hobbs, Lynn S. Davies, Salt Lake City, for Valley Asphalt.

DURHAM, Justice.


¶ 1 This appeal and cross-appeal challenge the judgment entered in a wrongful death action brought by Patty Bishop individually and as the executor of the decedent Douglas Bishop's estate and Bishop's children. Bishop, an employee of Valley Asphalt, Inc., died as a result of personal injuries sustained while performing repair work on asphalt silo components manufactured by Gen-Tec, Inc., and installed and maintained by Valley Asphalt. Bishop sued GenTec for products liability, and GenTec filed a third-party complaint against Valley Asphalt, seeking indemnification for GenTec's negligence, strict liability, and products liability based on the language in an invoice signed by Valley Asphalt. With respect to the indemnification, the court granted GenTec's motion for summary judgment. The jury allocated fault to both GenTec and Valley Asphalt. Judgment was then apportioned pursuant to Utah's Liability Reform Act. Bishop moved to amend the jury verdict based on clerical error, but the trial court denied the motion. Valley Asphalt and Bishop appealed, and GenTec filed a cross-appeal.


¶ 2 In late 1994 or early 1995, Valley Asphalt, planning to expand its asphalt storage capacity, contacted GenTec, a manufacturer and assembler of hot asphalt silos and silo components, to purchase hot asphalt silo components. Valley Asphalt purchased components for an asphalt silo from GenTec on August 7, 1995, and signed GenTec's standard invoice entitled "Equipment Sales Order and Security Agreement." On the reverse side of the pre-printed invoice were two sections entitled "INDEMNIFICATION" and "INSTALLATION," which purported to place limitations on GenTec's liability. Soon after completion of the purchase, Valley Asphalt received the silo components and constructed the system pursuant to the specifications provided by GenTec.

¶ 3 On July 12, 1997, while inspecting and attempting to repair one of Valley Asphalt's asphalt silos, Bishop was caught between the doors of the silo when they suddenly closed and was crushed. He died later that day as a result of his injuries. The components that crushed Bishop were those purchased under the August 7, 1995 invoice. Subsequently, Bishop's executor filed this wrongful death action against GenTec.

¶ 4 GenTec filed a third-party complaint against Valley Asphalt, seeking apportionment of fault and indemnification under the pre-printed terms on the reverse side of the August 7, 1995 invoice. After review of Gen-Tec's and Valley Asphalt's cross-motions for summary judgment on the indemnification question, the trial court found that the two entities were sophisticated business entities, that they negotiated the terms of the invoice at arm's length, and that the language in the invoice evidenced the intent of the parties to reallocate all liability to Valley Asphalt, including claims against GenTec for negligence, strict liability, and products liability.

¶ 5 The jury apportioned fault according to a special verdict form, allocating 25 percent of the fault to Bishop, 45 percent to GenTec, and 30 percent to Valley Asphalt. In addition to apportioning fault, the jury determined the amount of general damages to be $750,000 and special damages to be $800,000. Because Valley Asphalt was a party immune from suit pursuant to Utah Code Ann. § 78-27-37(3)(a) (Supp.2001), the trial judge reapportioned Valley Asphalt's 30 percent fault according to Utah's Liability Reform Act ("LRA"), Utah Code Ann. §§ 78-27-37 to -43 (1999), which resulted in allocating 64.29 percent of the total fault to GenTec and 35.71 percent to Bishop. The trial court then reduced the jury's damages award by the 35.71 percentage of fault allocated to Bishop. Both GenTec and Valley Asphalt objected to the reapportionment. They claimed that either Valley Asphalt's liability should be combined with Bishop's liability under the common law doctrine of respondeat superior or, if respondeat superior did not apply, that the reapportionment part of the LRA, section 78-27-39(2)(a), is unconstitutional under both the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Uniform Operation of Laws Clause of the Utah Constitution, art. I, section 24. The trial court overruled GenTec's and Valley Asphalt's constitutional objections. With respect to the respondeat superior argument, the trial court found that the LRA superceded the common law and that "the statute clearly and unambiguously requires that [the] Court must consider the fault of Mr. Bishop and Valley [Asphalt] separately."

¶ 6 After the trial ended and the jury was excused, Bishop's counsel talked to at least three of the jurors, including the jury foreman, all of whom subsequently signed affidavits indicating they had made a mistake in their calculation of the jury award. In their affidavits, the jurors testified that they had mistakenly subtracted 25 percent (Bishop's proportion of fault as determined by the jury) from the general and special damages, not realizing that the subtraction for Bishop's fault was the duty of the trial court, not the jury. Relying on these affidavits, Bishop moved to amend the jury verdict pursuant to Utah R. Civ. P. 59, or 60(a) or 60(b); later, however, in a hearing on the matter, Bishop modified his motion from a request for impeachment or amendment of the verdict under rule 59 or rule 60 to one solely for a correction of clerical error under rule 60. Bishop conceded that the juror affidavits would not support a rule 59 motion to impeach the jury verdict.

¶ 7 Bishop argued, with the support of the juror affidavits, that the jury's allocation error reduced the final general and special damages award announced in the jury verdict to a sum that was 25 percent lower than the amount the jury intended to award. Bishop maintained that the jury's intent was further evidenced by the fact that its special damages award was almost exactly 75 percent of the $1,067,000 special damages amount presented by Bishop's expert witness to the jury at trial. The trial court concluded that Bishop's motion to amend the jury verdict was in reality a motion to impeach the verdict and ruled that the affidavits were not admissible pursuant to Utah R. Civ. P. 59(a)(2). In its order, however, the trial court did not specifically address Bishop's rule 60 motion to amend.


¶ 8 The application of the LRA in apportioning fault is a legal question of statutory construction, which we review for correctness. Field v. Boyer Co., L.C., 952 P.2d 1078, 1079 (Utah 1998). A district court's disposition of a summary judgment motion is a question of law that we review for correctness. Schurtz v. BMW of North America, Inc., 814 P.2d 1108, 1111-12 (Utah 1991). "We accord a trial court's interpretation of a contract no deference and review it for correctness." Aquagen Int'l., Inc., v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998). Mixed questions of law and fact are reviewed for abuse of discretion in applying the law to the facts. Woodhaven Apartments v. Washington, 942 P.2d 918, 920 (Utah 1997) (citing State v. Pena, 869 P.2d 932 (Utah 1994)).


¶ 9 GenTec and Valley Asphalt argue that the trial court should have combined Bishop's negligence with that of his employer, Valley Asphalt, under the doctrine of respondeat superior. Alternatively, GenTec and Valley Asphalt also argue that if the doctrine of respondeat superior does not apply, the reapportionment provision of the LRA, section 78-27-39(2)(a), is unconstitutional under the Uniform Operation of Laws clause of the Utah Constitution, Utah Const. art. I section 24, and the Equal Protection Clause of the federal constitution, U.S. Const. amend. XIV, section 1. The first question before us therefore concerns the interaction between the LRA and the common law doctrine of respondeat superior.1 Utah has adopted the common law, except for instances where the common law is contrary to or conflicts with the United States Constitution, the Utah Constitution, a statute, or Utah public policy. See Utah Code Ann. § 68-3-1 (2001). In determining whether a state statute pre-empts the common law, we have used the federal model for determining whether federal law pre-empts state law. See Gilger v. Hernandez, 2000 UT 23, ¶ 11, 997 P.2d 305. The United States Supreme Court has stated,

[i] Sometimes courts, when facing the pre-emption question, find language in the... statute that reveals an explicit [legislative] intent to pre-empt [common] law. [ii] More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, courts must consider whether the ... statute's "structure and purpose," or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive intent.
[a] A . . . statute, for example, may create a scheme of [statutory] regulation "so pervasive as to make reasonable the inference that [the legislature] left no room for the [common law] to supplement it."
[b] Alternatively, [statutory] law may be in "irreconcilable conflict" with [the common] law. Compliance with both ..., for example,

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