Fisher v. Allis Chalmers Corp. Prod. Liability Trust.

• Decision Date: 04 February 2002
• Docket Number: 5,F035149
• Court: California Court of Appeals Court of Appeals
• Parties: MARIANNA FISHER, Plaintiff and Appellant, v.CORPORATION PRODUCT LIABILITY TRUST et al., Defendants and Appellants. F035149 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT Filed

MARIANNA FISHER, Plaintiff and Appellant v ALLIS-CHALMERS CORPORATION PRODUCT LIABILITY TRUST et al., Defendants and Appellants

F035149

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Filed 2/4/02

(Super. Ct. No. 134759)

APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.

Tony L. Cogliandro for Plaintiff and Appellant.

Haight, Brown & Bonesteel, Thomas N. Charchut, Lisa L. Oberg and Daniel J. Kelly for Defendants and Appellants.

CERTIFIED FOR PARTIAL PUBLICATION^*

O P I N I O N

VARTABEDIAN, J.

In this case, the widow of a man burned to death by hot oil expelled by a voltage regulator brought a products liability claim against the manufacturer of the regulator and the purported successor in interest of the manufacturer. On a postjudgment motion, the trial court ruled that (1) plaintiff was entitled to relief from defendants' requests for admission that were deemed admitted, (2) without the deemed admissions, summary judgment for defendant Allis-Chalmers Corporation Product Liability Trust (Allis Trust) was no longer appropriate, and (3) defendant Siemens Energy & Automation, Inc. (Siemens) remained entitled to summary judgment because it was not a successor in interest of Allis-Chalmers Corporation (Allis-Chalmers). All parties appeal. We conclude plaintiff should be relieved of the admissions, Allis Trust is not entitled to summary judgment, and the summary judgment in favor of Siemens must be reversed.

FACTS AND PROCEEDINGS

I. The Accident and Claims Asserted

On March 27, 1996, Norval Fisher was working as a substation maintenance electrician for Pacific Gas and Electric Company (PG&E) and investigated a problem with a load tap changer on a type AFR 12,000-volt, 3-phase voltage regulator (AFR Regulator) manufactured in approximately 1966 by Allis-Chalmers. Norval Fisher was fatally injured when hot or burning oil was expelled through the tap load changer's pressure release valve and struck him while he was standing at the AFR Regulator's control panel.

Norval Fisher's widow, Marianna Fisher (Fisher), sued Allis Trust and Siemens (collectively, defendants) alleging a products liability claim on the grounds the AFR Regulator was defective because (1) the pressure release value was positioned in such a manner that oil expelled from the load tap changer compartment would hit individuals standing at the control panel; and (2) the internal components of the load tap changer became pitted, which resulted in the ignition of the oil expelled from the compartment.

A. Defendants' Defense on the Merits

Allis Trust and Siemens defend the action on the basis that the accident was not caused by either a design or manufacturing defect in the AFR Regulator and that the sole cause of the accident that resulted in Mr. Fisher's death was PG&E's negligent maintenance, repair and inspection of the AFR Regulator. Defendants contend (1) pitting, and the resulting electrical arcing, is a normal consequence of nearly 30 years of use; and (2) PG&E modified the load tap changer compartment by permanently sealing and capping its upper breather opening, thereby preventing the escape of air and gases from the compartment. Defendants contend the ignition of the oil expelled by the compartment was most likely caused by the buildup of combustible gases due to the plugging of the upper breather opening. In addition, Siemens contends it is not a successor in interest of Allis-Chalmers and, therefore, is not liable for claims related to the AFR Regulator.

B.Fisher's Factual Contentions¹

As one of the grounds for opposing the merits of defendants' motions for summary judgment, Fisher asserts:

"The defects identified by Plaintiff were caused by the poor design and substandard manufacture of the AFR Regulator. The load tap changer compartment was not negligently modified when the upper breather opening was plugged, as this was done by the factory. The pitting of the dial switch contacts was not caused by weak contact pressure due to wear and tear during the equipment's nearly 30 years of service, it was caused by an improper design and poor workmanship in its manufacture. Further, the defect was know by Defendants, who made modifications to the subsequent load tap changers, but failed to notify PG&E that the item was improperly manufactured, or that a sudden cascade failure could result, even if PG&E exceeded the maintenance schedule, which it did. The ignition of the oil expelled from the compartment was not caused by the build-up of combustible gases due to the plugging of the upper breather opening, as the factory did this prior to shipment and provided an alternate breather system. [References to the Declarations of Gary Barton and Tony Nothelfer.]"

Gary Barton serves as a maintenance supervisor with PG&E, maintaining and testing all substation equipment. Barton's duties also include "tearing down regulator tap changers, including the one involved in this incident." Barton has been employed by PG&E since April 13, 1964. Tony Nothelfer is employed in PG&E's electrical transmission maintenance department as an electrical substation engineer. He has a 1978 master's degree in electrical power from the University of Southern California as well as a bachelor's degree in engineering. PG&E gave Nothelfer assignments relating to failure analysis of accidents. Nothelfer was the principal author of two reports on the incident involving Norval Fisher and is of the opinion that the manufacturer of the AFR Regulator is solely responsible for the explosion of March 27, 1996.

C.Defendants' Affirmative Defense²

Defendants also assert a primary assumption of the risk defense on the grounds that the "maintenance and repair of energized load tap changing equipment involves the inherent risk that improper maintenance of the equipment could cause arcing and explosions." Fisher denies "that improper maintenance occurred and that the explosion and [the] death of Norval Fisher was caused by improper maintenance by PG&E or Norval Fisher," based on the declarations of Barton and Nothelfer.

II.First Judgment³

In August 1998, defendants filed motions for summary judgment which attacked the elements of Fisher's product liability claim, presented an affirmative defense, and asserted Siemens was not a successor in interest of Allis-Chalmers. In September 1998, defendants filed a motion to deem admitted matters contained in requests for admission propounded to Fisher and to PG&E. All of the motions were set for hearing on October 19, 1998.

In October, prior to the hearing date, Fisher served an ex parte request for a continuance because she did not have an expert, filed a request for dismissal as to PG&E, and served responses to the requests for admission which were improperly verified by her attorney. Fisher did not file an opposition to the motions for summary judgment or the motion to deem matters admitted.

At the October 19, 1998, hearing the court granted the motion to deem matters admitted and granted the summary judgment motions. Counsel for Fisher did not attend the hearing. In November 1998, judgment in favor of the defendants was filed and recorded (the first judgment) and notice of entry of judgment was served.

In January 1999, Fisher filed a timely notice of appeal. (Fisher v. Allis-Chalmers Corp., F032492.) While the appeal was pending, Fisher filed a motion for relief under Code of Civil Procedure section 473.⁴ Defendants claimed the trial court did not have jurisdiction to decide the motion while the appeal was pending. Fisher requested dismissal of the appeal. The Court of Appeal ordered the appeal dismissed and subsequently issued a remittitur.⁵

After the remittitur was issued, the trial court heard argument on Fisher's motion for relief under section 473. In June 1999, the trial court found "there was excusable neglect by plaintiff's attorney" and set aside its October 19, 1998, order granting summary judgment to defendants. The order deeming admitted the requests for admission propounded to Fisher was not set aside at that time.

III.Second Judgment⁶

In July 1999, defendants renewed their motions for summary judgment and added further facts as undisputed based on the deemed admissions. Fisher opposed the motions and moved to set aside the deemed admissions. In August, defendants filed their reply to Fisher's opposition to their motions for summary judgment and an opposition to Fisher's motion to set aside deemed admissions.

The trial court heard the motions on November 1, 1999, and granted the motions for summary judgment and denied the motion to set aside deemed admissions. An order granting defendants' summary judgment motions was filed on December 3, 1999, and a judgment in favor of defendants was filed and recorded on December 6, 1999 (the second judgment).

On December 15, 1999, Fisher filed a postjudgment motion based in part on the Supreme Court's November 22, 1999, decision in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 [section 2033 permits the withdrawal or amendment of admissions deemed admitted for failure to respond] (Wilcox), and requested a rehearing and reconsideration of the trial court's rulings on the deemed admissions and the summary judgment motions. Defendants opposed the motion. A hearing was held on February 1, 2000, and the trial court requested additional briefing before considering the matter submitted. After the parties filed additional papers, the trial court ruled that it would construe Fisher's motion as a motion to vacate, it would grant the motion to vacate as to the deemed admissions and the judgment entered in favor of Allis Trust, but the judgment in favor of Siemens would not be vacated because it was based on the finding that Siemens was not a successor in interest to Allis-Chalmers and did not rely on the deemed admissions.

Fisher appeals, primarily requesting reversal of the judgment entered in favor of Siemens; def...