Cook v. Nebraska Public Power Dist.
| Decision Date | 27 April 1999 |
| Docket Number | 98-1544,Nos. 98-1399,s. 98-1399 |
| Citation | 171 F.3d 626 |
| Parties | Garland C. COOK, Plaintiff-Appellant, v. NEBRASKA PUBLIC POWER DISTRICT; Westinghouse Electric Corporation, Defendants-Appellees. Garland C. Cook, Plaintiff, v. Nebraska Public Power District, Defendant-Appellant, Westinghouse Electric Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bernard J. Monbouquette, Omaha, NE, argued, for Plaintiff-Appellant.
Jon S. Reid, Omaha, NE, argued for Westinghouse Electric Corp.
William J. Brennan, argued (Gerald L. Friedrichsen, on the brief), for Nebraska Public Power District.
Before BOWMAN, Chief Judge, WOLLMAN, and MURPHY, Circuit Judges.
Garland C. Cook, a millwright employed by Westinghouse Electric Corporation (Westinghouse), was injured while working at a nuclear power plant owned and operated by Nebraska Public Power District (NPPD). Cook received workers' compensation from Westinghouse, then sued NPPD, alleging its negligence had contributed to his injuries. NPPD filed a cross-claim against Westinghouse, seeking contractual indemnification for defending against Cook's lawsuit. The District Court conducted a bench trial, then entered judgment in favor of NPPD on Cook's negligence claim and in favor of Westinghouse on NPPD's indemnification cross-claim. Both Cook and NPPD appeal. We affirm in part, reverse in part, and remand the case with instructions.
NPPD is a public corporation and political subdivision of the State of Nebraska. In October 1984, it signed a general services agreement with Westinghouse that established the terms under which Westinghouse would perform services for NPPD. The two parties supplemented this agreement several times with specific work agreements, including a February 1993 supplemental agreement in which Westinghouse agreed to perform general maintenance and repair work at NPPD's Cooper Nuclear Station (CNS) during a scheduled spring 1993 maintenance outage.
As part of the spring 1993 outage agreement, Westinghouse agreed its millwrights would inspect the large turbine-generator rotor shaft at CNS for erosion or damage. The rotor shaft, which is more than 100 feet long, consists of a series of large metal cylindrical sections connected by flanged couplings. The sections lie lengthwise, with the bottom third of each section recessed below a metal platform called the turbine deck.
In order to inspect the unexposed portion of the rotor shaft, the Westinghouse millwrights have to turn the shaft. To do this, several millwrights standing on the turbine deck remove the bolts from the exposed portion of a flanged coupling. After the bolts are removed, the millwrights insert a steel turning pin approximately twelve inches long into an empty bolt hole. Around the turning pin the millwrights loop a steel cable called a choker, which is connected to the hook of an overhead crane. With hand signals the millwrights then direct the overhead crane operator, an NPPD employee seated inside the crane approximately thirty feet above the turbine deck, to operate the crane and raise the choker in short intervals. These short lifts, called "bumps," exert upward pressure on the turning pin, causing the rotor shaft to turn. Once the rotor shaft has been turned a few inches, the millwrights release the choker from the turning pin and remove another bolt or bolts if possible. The millwrights then transfer the turning pin to another empty bolt hole on the flanged coupling and repeat the process until all the bolts are removed. When the bolts are removed and the shaft sections uncoupled, the millwrights inspect each section, perform appropriate maintenance, then realign and recouple the shaft sections using essentially the same process.
At approximately 12:30 a.m. on March 13, 1993, several Westinghouse millwrights prepared to turn a section of the rotor shaft. The shaft sections had been uncoupled, and the millwrights intended to turn the section until it was properly aligned and then recouple it to an adjacent section. Cook stood about seven feet away, preparing to assist with the realignment.
The millwrights inserted a turning pin into one side of the flanged coupling. The turning pin, however, was smaller than the bolt hole into which the millwrights inserted it: the turning pin was approximately 2.00 inches in diameter, while the bolt hole was 2 .22 inches in diameter. (Couplings along the rotor shaft had bolt holes of varying sizes, and several sizes of turning pins were available.) The 0.22 inch difference allowed the turning pin to shift in the bolt hole enough that the free end of the turning pin angled upward four degrees when pressure was applied.
The millwrights then looped a choker around the turning pin's free end, which protruded out of the coupling approximately seven inches. The choker was more than twenty feet long and an inch-and-a-half in diameter. At each end of the choker was a loop of cable called an "eye." The District Court concluded, and it is not disputed in this appeal, that at the time of the accident both eyes were attached to the overhead crane's hook, and the resulting "basket" of cable was looped around the turning pin's free end. See Cook v. Nebraska Pub. Power Dist., No. 8:94CV659, at 6 (D.Neb. Dec. 30, 1997) (Memorandum and Order). The District Court also found that the choker was bent, and that the bend caused the choker to hang off-center when permitted to dangle free. See id. at 6, 11.
After the millwrights looped the choker around the turning pin, they signaled for the NPPD crane operator to bump the turning pin. He did so, but the rotor shaft did not turn. Therefore, the millwrights signaled the crane operator to bump the turning pin again. They repeated this process until, after the third or fourth bump, the upward pressure from the crane had caused the turning pin to bend seven degrees. This bend in the turning pin, combined with the shifting of the undersized turning pin inside the larger bolt hole, allowed the choker to slide off the turning pin. It did so and struck Cook in the head, causing him serious injuries.
Cook received workers' compensation benefits from Westinghouse, then filed a diversity suit in federal court seeking damages from NPPD for its alleged negligence. Cook named Westinghouse a defendant to preserve its subrogation interest in any recovery Cook might obtain. NPPD then filed a cross-claim against Westinghouse, seeking indemnification based upon a provision in the 1984 general services agreement.
The District Court heard four days of testimony and received hundreds of exhibits before entering judgment in the case. Then, applying Nebraska law, the District Court found that Cook did not prove NPPD should be liable for his injuries. Cook had claimed that NPPD should have direct liability because its employee operated the crane negligently by using a bent choker, and that this negligence contributed to Cook's injuries. The District Court, however, determined that the bent choker was not a cause of Cook's injuries. The court concluded that the undersized turning pin was the cause of Cook's injuries and that "Westinghouse employees selected the undersized turning pin, positioned the undersized turning pin in the flange hole, and directed the crane operator to apply upward tension ." Memorandum and Order at 12. Finding that NPPD had no duty to protect Cook from Westinghouse's negligence, the District Court also rejected Cook's assertion that NPPD should have vicarious liability. See id. at 13-18.
The District Court then determined that Westinghouse did not have to indemnify NPPD for losses incurred defending against Cook's suit. According to the District Court, Cook filed suit "not by reason of Westinghouse's negligence, but, rather, because of alleged negligence of NPPD." Id. at 21. Therefore, according to the District Court, the lawsuit was not covered by the indemnification provision in the Westinghouse-NPPD 1984 general services agreement. The District Court entered judgment in favor of NPPD on Cook's negligence claim and in favor of Westinghouse on NPPD's indemnification cross-claim. Both Cook and NPPD appeal.
Cook argues that the District Court erred because it "had no factual basis on which to exclude the choker" as a cause for his injuries. See Cook's Br. at 1. Because Cook challenges the District Court's findings of fact, we review for clear error. See Fed.R.Civ.P. 52(a); Moore v. Novak, 146 F.3d 531, 534 (8th Cir.1998).
Under this standard, we will overturn a finding of fact only if it is not supported by substantial evidence in the record, if the finding is based on an erroneous view of the law, or if we are left with the definite and firm conviction that an error has been made. A district court's choice between two permissible views of evidence cannot be clearly erroneous.
Estate of Davis v. Delo, 115 F.3d 1388, 1393-94 (8th Cir.1997) (citation omitted).
To determine whether the bent choker was necessarily a cause of Cook's injuries, we describe the competing theories the parties advance to explain how the crane was able to bend the turning pin. Both parties agree that, because of the amount of force applied by the crane and the yielding point of the turning pin, the choker had to be located about two inches from the turning pin's free end when the crane applied pressure for the turning pin to yield and bend. But the parties dispute how the choker came to be positioned only two inches from the turning pin's free end. The millwright who placed the choker on the turning pin testified that he put the choker directly against the flange. Relying on this testimony, Cook argues that the bend in the choker drew the choker outward, so that the choker hopped approximately five inches toward the turning pin's free end with the initial bumps and reached the point two inches from the turning pin's...
To continue reading
Request your trial
-
Kemin Foods v. Pigmentos Vegetales Del Centro
...249 (1988). Indeed, a choice between two permissible views of the evidence cannot be clearly erroneous. Cook v. Nebraska Pub. Power Dist., 171 F.3d 626, 630 (8th Cir.1999). 4. According to the Seventh Circuit, to reach a conclusion that the district court's finding is clearly erroneous, the......
-
Jordan v. Nucor Corp., 01-2367NE.
...owner's employees delivered equipment to construction site and were present at the time the injury occurred); Cook v. Nebraska Pub. Power Dist., 171 F.3d 626, 632 (8th Cir.1999)(noting that the Nebraska Supreme Court has held that the mere presence and minor participation of an employee of ......
-
Havrum v. U.S.A.
...finding that the nurse killed Mr. Havrum. We review the court's factual findings for clear error. See Cook v. Nebraska Public Power District, 171 F.3d 626, 630 (8th Cir. 1999). The trial court found that Richard Williams, the nurse in question, gave Mr. Havrum a lethal dose of codeine and, ......
-
Amtrust Inc. v. Larson
...1000, 123 S.Ct. 514, 154 L.Ed.2d 395 (2002). We review the district court's factual findings for clear error. Cook v. Nebraska Public Power Dist., 171 F.3d 626, 630 (8th Cir.1999). A. Larson's Larson argues he was prejudiced when the district court relegated the jury's verdict to advisory s......