Deines v. Vermeer Mfg. Co.
| Decision Date | 21 July 1992 |
| Docket Number | No. 91-3044,91-3044 |
| Citation | 969 F.2d 977 |
| Parties | Robert E. DEINES, Plaintiff-Appellee, v. VERMEER MANUFACTURING COMPANY, and Liberty Mutual Insurance Company, Defendants-Appellants, American Insurance Association, Amicus Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gary D. White, Jr. of Schroer, Rice, P.A., Topeka, Kan., for plaintiff-appellee.
Richard T. Merker (Ben T. Schmitt with him on the briefs) of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, Kan., for defendants-appellants.
Alan Epstein of Hall & Evans, Denver, Colo., for amicus curiae.
Before BALDOCK and BARRETT, Circuit Judges, and PARKER *, District Judge.
Liberty Mutual Insurance Company (Liberty Mutual) appeals from a judgment entered in favor of Robert Deines (Deines) following a jury trial.
Gary Vermeer of Vermeer Manufacturing Company invented and designed the Vermeer 605 line of hay balers. On October 30, 1986, Deines became entangled in a Vermeer Model 605C round baler resulting in an above elbow amputation of his right arm. Deines subsequently sued Vermeer Manufacturing Company (Vermeer), the manufacturer of the baler, and Liberty Mutual, its insuror. Deines alleged that Vermeer had designed and manufactured a defective baler and that Liberty Mutual had failed to properly inspect, advise, and counsel Vermeer.
Deines settled with Vermeer for $610,000. Liberty Mutual moved for summary judgment alleging, inter alia, that: it did not have a duty to produce a safe baler; Vermeer had sole responsibility for the production of the baler; and it did not, in providing inspections of Vermeer's plant, assume a duty of care under Restatement (Second) of Torts § 324A. 1
In granting Liberty's Mutual motion for summary judgment with respect to § 324A(a) and denying it with respect to § 324A(b) and (c), the district court found:
Liberty Mutual provided Vermeer Manufacturing with products liability insurance from 1967 to November of 1975. The insurance company, as a condition of the policy, conducted safety inspections of the insured's products. This service was a "selling point" used by Liberty Mutual's insurance salesmen in describing coverage to prospective clients. The decision of Harry Vermeer and Gary Vermeer to purchase insurance from Liberty Mutual was made, in part, because they considered Liberty Mutual's inspections to be of value to Vermeer Manufacturing.
Liberty Mutual, through its agents and employees, conducted inspections of products manufactured by Vermeer Manufacturing. Lawrence William Shaul ..., a loss prevention consultant employed by Liberty Mutual, visited Vermeer's Manufacturing plant in Pella, Iowa, on a regular basis and "inspected almost all of the equipment." These inspections were conducted pursuant to Liberty Mutual's policies and procedures manual. Shaul examined Vermeer Manufacturing's products for compliance with standards published by the American National Standards Institute ..., the Occupational Safety and Health Administration ..., and the American Society of Agricultural Engineers....
The purpose of the inspections was, in part, to help Vermeer Manufacturing prevent accidents. Vermeer Manufacturing solicited Shaul's opinion as to safety problems and occasionally sought his approval for a change in a product. Vermeer Manufacturing was receptive to Shaul's ideas. The company did not employ its own engineer during most of the relevant time period and therefore relied upon Liberty Mutual's inspections and its advice regarding the design of guarding, decals, warnings, operator manuals, and other safety aspects of hay baler models....
(R., Appendix at pp. 00163-00164).
The case proceeded to trial and the jury returned a verdict in favor of Deines, finding, via special interrogatories, that: Deines was 49% at fault; Liberty Mutual was 51% at fault; and Deines had suffered damages of $287,990.19. Thereafter, the district court entered judgment in favor of Deines in the amount of $146,875.00 (51% X $287,990.19).
On appeal, Liberty Mutual contends that: (1) it did not owe a duty of care to Deines; (2) the verdict was against the weight of the evidence; (3) the court's instructions were clearly erroneous; and (4) the district court erred in precluding it from presenting certain evidence.
Under Fed.R.App.P., rule 10(b)(2), 28 U.S.C. an appellant is charged with providing the appellate court with a suitable record on appeal:
If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.
Moreover, "it is counsel's responsibility to see that the record excerpts are sufficient for consideration and determination of the issues on appeal and the court is under no obligation to remedy any failure of counsel to fulfill that responsibility." General Order, 10th Cir., October 25, 1990, p. 5.
Our appellate review is necessarily limited when, as here, an appellant challenges the sufficiency of the evidence and rulings of the district court but fails to "include in the record a transcript of all evidence relevant to such finding or conclusion." Rule 10(b)(2). See Trujillo v. Grand Junction Regional Center, 928 F.2d 973, 976 (10th Cir.1991) (); Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1517 (10th Cir.1990) (); Ewers v. Board of County Commissioners of Curry County, 802 F.2d 1242, 1250 (10th Cir.1986), cert. denied, 484 U.S. 1008, 108 S.Ct. 704, 98 L.Ed.2d 655 (1988) (...
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