Davis v. Brunswick Corp.

• Decision Date: 17 March 1994
• Docket Number: Civ. A. No. 1:91-CV-1943-JOF.
• Citation: 854 F. Supp. 1574
• Parties: Polly Sutton DAVIS and Ed Davis, Plaintiffs, v. BRUNSWICK CORPORATION, d/b/a Mercury Marine Division, and Galaxy Boat Manufacturing Co., Inc., d/b/a Galaxy Boats, Defendants.
• Court: U.S. District Court — Northern District of Georgia

854 F. Supp. 1574

Polly Sutton DAVIS and Ed Davis, Plaintiffs, v. BRUNSWICK CORPORATION, d/b/a Mercury Marine Division, and Galaxy Boat Manufacturing Co., Inc., d/b/a Galaxy Boats, Defendants.

Civ. A. No. 1:91-CV-1943-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

March 26, 1993.

Order on Motions to Clarify and Reconsider March 17, 1994.

COPYRIGHT MATERIAL OMITTED

Paul M. Hoffman, Michael David Deming, James Richard Green, Jr., Mark Andrew Lewis, Deming, Deming, Born & Parker, Norcross, GA, Dennis Joseph Myers, Sexton, Myers & Haffner, St. Louis, MO, for plaintiffs.

Ronald Louis Reid, R. Wayne Thorpe, James W. Hagan, Alston & Bird, James Errol Singer, Bovis, Kyle & Burch, Atlanta, GA, Kenneth R. Shuttleworth, James H. Crabtree, Jr., Shuttleworth, Smith, McNabb & Williams, Memphis, TN, for defendants.

ORDER

J. OWEN FORRESTER, District Judge.

This matter is a product liability case for injuries suffered in a boating accident. Presently before the court are Defendants Galaxy Boat Manufacturing Company, Inc.'s, d/b/a Galaxy Boats, and Mercury Marine Division of the Brunswick Corporation's motions for summary judgment and motions for reconsideration. Defendant Mercury and Plaintiffs Polly Sutton Davis and Ed Davis also seek leave to file briefs in excess of twenty-five pages and leave to file supplemental memorandums in light of recent authority.

I. FACTS

On July 16, 1989, Plaintiff Polly Davis was struck while swimming in Lake Oconee by a boat driven by her mother-in-law, Edna Davis. The boat was manufactured by Defendant Galaxy and equipped with an engine and out-drive manufactured by Defendant Mercury. Plaintiffs had not purchased this boat from the defendants, but from a private owner.

In April of 1990, Plaintiffs made a claim against Edna Davis. In the fall of 1990, a settlement agreement was reached between CNA Insurance Company, Edna Davis' liability carrier. CNA agreed to pay the policy limits of $100,000.00 in exchange for a release of claims. Plaintiffs executed a release which reads as follows:

We, being of lawful age, do hereby release, acquit and forever discharge Samuel and Edna Davis and American Casualty Company under policy number N00-9693051 and all other persons, firms and corporations, their heirs, successors, and assigns, who might be liable of and from any and all actions, causes of actions, claims, demands, damages on account of, or in any way growing out of, any and all known and unknown personal injuries resulting or to result from a certain incident which occurred on or about the 16th day of July, 1989, at or near Putnam County, Georgia.

(Emphasis added). Plaintiffs filed suit against these defendants on July 15, 1991.

Mercury sold Galaxy the engine and out-drive in question on June 9, 1981. The engine and out-drive were shipped from Mercury's production facility in Stillwater, Oklahoma to Galaxy's plant in Columbia, South Carolina.¹ Galaxy installed the engine and out-drive in a Galaxy hull. The boat was thereafter sold to Jack Thompson. Jack Thompson registered the boat in 1981. The boat in question was not equipped with a propeller guard.

II. MOTION FOR RECONSIDERATION

Defendants ask the court to reconsider its order of September 16, 1992, denying them leave to amend their answers to include the release as an affirmative defense. The court based its denial on the legal insufficiency of the release language itself. Specifically, the court examined the language in light of the Georgia Supreme Court opinion in Posey v. Medical Center-West, Inc., 257 Ga. 55, 354 S.E.2d 417 (1987). The Posey decision held that a general release given to one joint tortfeasor does not release all joint tortfeasors unless it is agreed that the language releases them. Id. at 59, 354 S.E.2d 417. The Supreme Court also added that in ascertaining the intent of the parties, parol evidence may be used. In light of this decision, this Court looked first to the language and found it to be a general release within the meaning of Posey. The Court then considered evidence as to whether it was agreed that the language was intended to release these third parties, Mercury and Galaxy. The Court found no evidence of extrinsic or parol evidence and found the language too general itself to release these defendants. Because this release did not release these defendants, amendment to the answer was inappropriate.

Defendants, in seeking reconsideration, argue that Posey did not specifically find that the general release language did not release the third parties. Defendants are correct. The Posey Court merely stated that release language does not release unless intent to do so can be shown. Defendants further argue that Plaintiffs have shown no extrinsic evidence that this language is not specific. Defendants argue, therefore, that the language is clear and unambiguous, as the court of appeals found before its reversal. See McDowell v. Lackey, 200 Ga.App. 506, 408 S.E.2d 481 (1991), rev'd, Lackey v. McDowell, 262 Ga. 185, 415 S.E.2d 902 (1992). In the alternative Defendants argue that this language is ambiguous and that this defense should be allowed to go to a jury to ascertain intent.

The Supreme Court in Lackey reversed the Court of Appeals because the Court of Appeals had not considered extrinsic evidence in determining the intent of the parties and had merely relied on rules of construction. This court specifically has looked for extrinsic evidence as to intent. None was presented in the motion or responses for reconsideration. Information contained in the summary judgment motions adds nothing to this discussion except to confirm that all negotiations which led to this release language were between CNA, Edna Davis and the plaintiffs. If anything, this additional evidence supports the court's previous order.

The language of the release clause itself evidences no specific intent to include these third parties. Contractual language of this sort is a general release as contemplated by the Posey Court. Language such as that found in this release is often boilerplate and not intended to target any specific joint tortfeasor. Absent extrinsic evidence that the parties intended to bind Galaxy and Mercury, the release is ineffective for the purpose of an affirmative defense in this case.²

III. MOTIONS FOR SUMMARY JUDGMENT

Defendants move for partial summary judgment on three theories.³ Defendants contend first that Plaintiffs' strict liability and negligence claims are barred by Georgia's statute of repose. Second, Defendants contend Plaintiffs' prop-related claims are preempted by the Federal Boat Safety Act of 1971. In the alternative, if not preempted, Defendants contend that an open boat propeller is not a defective product as a matter of law and does not give rise to a claim for negligent design since the danger is open and obvious. Third, Defendants contend that Plaintiffs' claims for breaches of express and implied warranties are barred by the statute of limitations and by the fact that no privity of contract existed between Galaxy or Mercury and the plaintiffs.⁴

A. Statute of Repose

Defendants Galaxy and Mercury contend that Georgia's statute of repose bars Plaintiffs' strict liability and negligence claims. The Georgia Code provides in pertinent part:

(b)(1) The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

(2) No action shall be commenced pursuant to this subsection with respect to an injury after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury....

(c) The limitation of paragraph 2 of subsection B of this code section regarding bringing an action within ten years from the date of the first sale for use or consumption of personal property shall also apply to the commencement of an action claiming negligence of a manufacturer as the basis of liability....

O.C.G.A. § 51-1-11. The Georgia Supreme Court has held previously that the first sale is the one to the actual consumer. Hatcher v. Allied Products Corp., 256 Ga. 100, 344 S.E.2d 418 (1986). Simply stated, the statute bars any lawsuit brought more than ten years after the sale to the first consumer. Id. at 101, 344 S.E.2d 418.

This suit was filed on July 15, 1991. At issue, therefore, is whether the first sale to Jack Thompson occurred before July 15, 1981. Defendants point to the deposition testimony of Alvin Ruth, President of Galaxy Boats. He recalls, but is not absolutely positive, that Jack Thompson picked up the boat directly at the factory prior to the July 4 weekend in 1981. In addition, Defendants offer the affidavit of Barbara Coughlin from the Georgia Department of Natural Resources. She interprets the registration records as indicating that the boat was registered by Jack Thompson in July, 1981. She acknowledges that the record certificate pertaining to the boat in question has an expiration date of December, 1984. Beneath this expiration date, presumably hand-written by the clerk, is a notation that the registration was made in December, 1981. Ms. Coughlin swears this is merely an uninformed notation derived from subtracting three years from the December, 1984 date. She swears that at that time the backlog for registration was such that a July registration would have actually been finally recorded in December. Plaintiffs offer no evidence to dispute Defendants' evidence on this matter. None of this evidence, however, is completely conclusive. A reasonable trier of fact could conclude that the sale...