Disa Indus., Inc. v. Bell

• Decision Date: 29 June 2018
• Docket Number: 1160339
• Citation: Disa Indus., Inc. v. Bell, 272 So. 3d 142 (Ala. 2018)
• Parties: DISA INDUSTRIES, INC. v. Gregory BELL
• Court: Alabama Supreme Court

272 So.3d 142

DISA INDUSTRIES, INC.

v.Gregory BELL

1160339

Supreme Court of Alabama.

June 29, 2018

Rehearing Denied September 14, 2018

Joseph R. Duncan, Jr., and Philip R. Collins of Huie, Fernambucq & Stewart, Birmingham, for appellant.

Evan G. Allen of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.

BOLIN, Justice.

DISA Industries, Inc. ("DISA"), appeals from a judgment entered on a jury verdict in favor of Gregory Bell awarding $500,000 in compensatory damages.

Procedural History

On September 25, 2012, Bell sued DISA, Union Foundry Company ("Union Foundry"), and Duca Manufacturing and Consulting, Inc. ("Duca"), as well as fictitiously named defendants, based on injuries he suffered as an employee of Union Foundry. On March 13, 2014, and January 8, 2015, Bell amended the complaint, substituting the named defendants SPX Corporation ("SPX"), ABB, Inc. ("ABB"), and Anniston Iron Works, LLC ("Anniston Iron Works"), for the fictitiously named defendants. In the second amended complaint, Bell asserted claims of negligence and wantonness and a claim under the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD") against defendants DISA, Duca, SPX, ABB, and Anniston Iron Works, as well as claims arising under the Workers' Compensation Act against his employer, Union Foundry. Bell's wife, Althea Bell, asserted a loss-of-consortium claim against the defendants.

The claims against defendants ABB, SPX, and Anniston Iron Works were subsequently dismissed without prejudice. The claims against Union Foundry were consolidated for purposes of discovery, but were subsequently bifurcated for the purpose of trial.

Both DISA and Duca filed motions for a summary judgment. After conducting a hearing, the trial court granted the motion for a summary judgment filed by Duca and denied DISA's summary-judgment motion. The case went to trial against DISA.

On August 30, 2016, in accordance with the jury's verdict, the trial court entered judgment on behalf of Bell and against DISA, awarding Bell $500,000 in compensatory damages.¹

DISA filed a motion for a judgment as a matter of law and a motion for a remittitur, both of which were denied by the trial court. On January 23, 2017, DISA filed a notice of appeal.

Facts

A. The New Molding System

Union Foundry manufactures cast-iron pipe fittings. In 2000, Union Foundry entered into a contract with Georg Fisher DISA ("GFD"), a predecessor to DISA, for the purchase and installation of a "New GFD Molding System" at its foundry. Under the "Terms and Conditions" section of the contract, DISA set forth the following limitations, in pertinent part:

"8. Scope Limitations

"a. [DISA] reserves the right to make design, construction, and procurement decisions based on least cost, unless certain manufacturers, designs or methods are specifically provided for in writing in this Contract.

"b. Any equipment, structure or service item that is not included in writing in this Contract is hereby specifically excluded from the Scope of this Contract.

"c. [DISA] shall only be responsible for those items set forth as [DISA's] responsible [sic] in this Contract."

In its proposal, which subsequently became part of the contract, DISA listed the specific costs for the "Union Foundry New Molding System and Auxiliaries." DISA indicated the costs for "building alterations, platforms, and stairs" as $145,000, "detail and project engineering" as $310,000, "site supervision" as $150,000, and "startup assistance and commissioning" as $180,000. It also indicated that "relocat[ion] of the pouring furnace" and demolition would be "by Union." DISA indicated the total costs for the new molding system was $9,999,900.

DISA attached a "Scope of Supply" to its proposal.² After meeting with Union Foundry officials, DISA subsequently provided an "expanded description of the material in [its] proposal," which included a more detailed "Scope of Supply" and set forth additional duties for Union Foundry. The expanded Scope of Supply indicated that DISA would install the equipment for the molding system, including spill-sand hoppers and conveyors, a casting conveyor system, a multi-cooler, and "work platforms (upper and lower at molding machine) ... and mold line access stiles."³ It also provided that "[a]ll equipment or fabrication supplied directly by [DISA] to be surface prepped and painted GFD blue. All other manufacturer/vendor supplied with manufacturer's standard finish/colors." DISA's Scope of Supply for the electrical installation was limited to the mold-line control system and other items related to the molding machine and conveyance system, such as providing necessary conduit, wire, and labor for the molding-machine control panels and spill-sand conveyor system. DISA further limited its scope of piping to the molding-line device and sand cooler. In addition, DISA's Scope of Supply for foundation and flooring was limited to the molding machine, auxiliary devices, cooling lanes, autopour unit, sand cooler, and reinforced floors.

The proposal also listed numerous responsibilities for Union Foundry, including the relocation of the "Duca pouring furnace, " "hot metal delivery," and "[a]nything not specifically listed in the proposal." However, the contract states "[DISA] to provide Duca pit in new location." The expanded agreement sets forth additional responsibilities for Union Foundry, including the following pertinent sections:

"A. Union [Foundry] will move the existing DUCA 5 ton capacity pouring furnace and service crane to the new pit after the new line is operational. Refractory replacement, power, water and control connections will be Union Foundries'[sic] responsibility. Union [Foundry] will modify the pouring spout, if necessary, to accommodate conditions of the new molding line.

"....

"C. Demolitions including modifying existing sand hoppers, sand conveyors, platforms, interior walls and removal of existing equipment [are] Union Foundry['s] responsibility.

"....

"L. Hot metal delivery, shot blast equipment and casting handling conveyors are Union Foundry responsibility."

In 1999, DISA provided initial "arrangement drawings" of the project to Union Foundry. The "drawing status" indicated that the arrangement drawings were "preliminary" and that "safety [was] given consideration in this design." Additionally, a handwritten approval note on the arrangement drawings specifically stated:

"These drawings approved as ‘general concept as noted’ only. This does not relieve [DISA] of design, engineering, manufacturing, construction or installation errors or flaws, omissions or inadequate performance of equipment, material or installation under [DISA's] work scope...."

The arrangement drawings included a general modification of the trough, which is where Bell was working when he was injured.

Union Foundry's engineers subsequently created more detailed drawings of the "furnace-platforms plan" that included a 24–inch modified extension of the trough. Union Foundry also created specific drawings of the "required modifications layout" and a "reference drawing" of the "pour launderer modifications," which included the 24–inch modified extension of the trough.

Before Union Foundry contracted with DISA and moved the furnace, the foundry employees referred to the area around the mid-level platform and trough as "the BMD line." After the furnace was moved and the project was completed, the employees began referring to both the mid-level platform area and the molding line as "the GFD line." The photographs of the foundry, which were taken shortly before trial, indicate that the mid-level furnace platform was painted yellow. A set of stairs leading from the mid-level platform down to the molding-line area were painted blue. At some point, the yellow letters "GFD" were affixed to the stairs, but DISA maintains that it did not affix the letters.

B. How the Furnace System and Molding Line Work

A fork truck brings large bars of metal into the foundry; they are placed on a large "ladle." A five-ton hoist moves the ladle into the furnace. The furnace heats the bars into molten iron. The furnace maintains the molten iron at approximately 2500 degrees Fahrenheit.

The furnace vessel is pressurized and has a trough, also known as a launderer, and a pour spout positioned on a mid-level platform above a conveyor system for the molding line below. The molten metal runs through the trough to the pouring spout along the mid-level platform. The hot molten metal is poured from the spout into molds that run under the furnace along a conveyance system.

At least two Union Foundry employees work on platforms above the molding-line conveyance system. A furnace attendant worked on the mid-level platform by the trough. Throughout the day, the furnace attendant pours iron from a ladle into the furnace and then walks to the trough area, where the attendant uses a dipper to take samples of the molten metal to be sent to the laboratory. The attendant also provides general maintenance around the area, such as removing slag from the furnace fill hole and removing iron buildup from the pour hole. Another Union Foundry employee, the pourer, works on another platform next to the mid-level platform. The pourer uses a joystick to control the movement of the molding system as the molten metal is poured from the pour spout on the mid-level platform into the molds below.

The molding machine mixes green sand, which is a mixture of sand, clay, and water, to form molds for the molten iron. The molds are transported on a conveyance system for cooling. Another conveyance system under the molds takes away the spilled sand.

C. The Foundry Accident

Bell worked as a furnace attendant on the mid-level platform next to the trough, which had been modified by the 24–inch extension. Bell's supervisors trained him to step over the trough. Workers, including supervisors, frequently stepped over the trough to perform work on the other side of the mid-level platform. There were,...