Kirby Bldg. Systems v. Mineral Explorations Co.

• Decision Date: 01 August 1985
• Docket Number: 84-191,Nos. 84-190,s. 84-190
• Citation: 704 P.2d 1266
• Parties: KIRBY BUILDING SYSTEMS, a Texas corporation, Appellant (Defendant), Centric Corporation, a Colorado corporation; Gardner-Zemke Company, a New Mexico corporation, (Defendants), v. MINERAL EXPLORATIONS COMPANY, a California corporation; and Union Oil Company of California, a California corporation, Appellees (Plaintiffs). MINERAL EXPLORATIONS COMPANY, a California corporation; and Union Oil Company of California, a California corporation, Appellants (Plaintiffs), v. CENTRIC CORPORATION, a Colorado corporation; Gardner-Zemke Company, a New Mexico corporation; and Kirby Building Systems, a Texas corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1266

704 P.2d 1266

KIRBY BUILDING SYSTEMS, a Texas corporation, Appellant (Defendant), Centric Corporation, a Colorado corporation; Gardner-Zemke Company, a New Mexico corporation, (Defendants), v. MINERAL EXPLORATIONS COMPANY, a California corporation; and Union Oil Company of California, a California corporation, Appellees (Plaintiffs).

MINERAL EXPLORATIONS COMPANY, a California corporation; and Union Oil Company of California, a California corporation, Appellants (Plaintiffs), v. CENTRIC CORPORATION, a Colorado corporation; Gardner-Zemke Company, a New Mexico corporation; and Kirby Building Systems, a Texas corporation, Appellees (Defendants).

Nos. 84-190, 84-191.

Supreme Court of Wyoming.

Aug. 1, 1985.

Glenn Parker, and Alan B. Minier, of Hirst & Applegate, Cheyenne, for Kirby Building Systems.

John A. MacPherson, of Johnson, MacPherson & Noecker, Rawlins, Raymond J. Turner, and Craig R. Maginness, of Sherman & Howard, Denver, Colo., for Mineral Explorations Co. and Union Oil Co. of California.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROSE, Justice.

This appeal comes here with the appellant-defendant Kirby Building Systems in Case No. 84-190 asking this court for a decision on the following issues:

(1) Whether the evidence was sufficient to support the damage verdict;

(2) Whether the judgment was properly calculated by the trial court in conformity with the comparative-negligence statutes; and

(3) Whether the Right to Contribution Among Joint Tortfeasors statutes are applicable and, if they are, were they properly applied.

The plaintiffs, Mineral Explorations Company and Union Oil Company of California, ¹ are satisfied with the verdict, but they have lodged an appeal in Case No. 84-191 which they seek to pursue only in the event that the verdict upon which judgment was entered in their favor in Case No. 84-190 is reversed and remanded. It will not be necessary to consider Union's appeal, since we will affirm the trial court's judgment in Case No. 84-190.

This litigation grew out of a fire which occurred on October 23, 1980, which was caused by ignition of fiberglass plastic panels used to line the inside of the building. The plaintiffs were the owners and operators of the Sweetwater Uranium Mill, where the destroyed structure was located. Since the parties could not agree on liability or damages, they have applied to the courts for assistance.

Plaintiffs' complaint was lodged against the following defendants: Kaiser, Inc.; Centric Corporation; Drake Building Corporation; Gardner-Zemke Company; Kirby Building Systems, Inc.; Reichhold Chemicals, Inc.; Electric Services Co.; M.M. Sundt Construction Co.; and Bill Boyles. Of these defendants, Kaiser, Drake, Reichhold, and Sundt settled, leaving only Kirby, Centric and Gardner-Zemke to go to trial as defendants. Centric has not perfected an appeal, and Gardner-Zemke is not liable since its negligence was found not to be greater than the negligence of the plaintiff. ² This leaves only the issues identified by Kirby in case No. 84-190 to be resolved in this opinion.

Background

The amended complaint alleged that Kaiser contracted with Union Oil for engineering, procurement and construction services for a uranium ore processing mill. Kaiser subcontracted with Centric for the construction of pre-engineered metal buildings to house the mill facilities and equipment. These buildings were to be lined with fiberglass panels. Centric eventually procured the buildings and the liner panels from Kirby through Kirby's franchisee, Drake. The panels were manufactured and sold to Kirby by Reichhold, and were not flame retardant in accord with specifications prepared by Kaiser. Gardner-Zemke, Electric Services and M.M. Sundt were all subcontractors on the jobsite the day a fire broke out and consumed one of the buildings lined with the fiberglass panels, and Boyles was a welder who, the record indicates, was the one responsible for starting the fire. The plaintiffs charge that the fire would not have occurred if the fiberglass panels had been flame retardant. The various defendants were sued on theories of negligence, breach of warranty, breach of contract and strict liability in tort.

The trial judge granted motions which eliminated all of plaintiffs' claims for breach of contract, breach of warranty and strict liability, and granted the summary judgment to one contractor-defendant, Electric Services Co. The case then went to trial against Kirby, Centric and Gardner-Zemke on negligence theories only, with the jury returning a verdict for $8,392,216.90.

Kirby does not contest the jury's finding of negligence, and outlines the issues for our review as follows:

"A. Plaintiffs did not sustain their burden of proof with respect to damages.

"B. The judgment of the trial court was not entered in conformity with the verdict of the jury and the Wyoming Comparative Negligence Act.

"C. Even if the Wyoming Contribution Among Tortfeasors Act was pertinent to calculation of the verdict, the [trial] court did not properly apply the statute."

ISSUE NO. 1

Sufficiency of the Evidence To Establish Reasonableness and Necessity

In reviewing the sufficiency of the evidence to support a jury's verdict, this court has held that

" * * * It is axiomatic in this jurisdiction that the evidence most favorable to the prevailing party must be considered, that every favorable inference be given to it, and that if it is sufficient the determination of the trier of fact will not be disturbed." Berry Refining Company v. Pinsky, Wyo., 443 P.2d 521, 523 (1968).

The standard by which we review a substantial-evidence question concerning issues pertaining to proof of damages was expressed in Douglas Reservoirs Water Users Association v. Cross, Wyo., 569 P.2d 1280, 1283 (1977), as follows:

"In matters of evidence on review, we apply the monotonously repeated rule that an appellate court must assume evidence in favor of a successful party to be true, leave out of consideration the conflicting evidence of the unsuccessful party and give the evidence of the successful party every favorable inference which may be reasonably drawn from it. Oedekoven v. Oedekoven, Wyo.1975, 538 P.2d 1292 * * *."

Kirby does not contend that Union's accounting records are inaccurate or that the moneys that they reflect were not spent for reconstruction. In fact, Kirby's own accountant testified that Union and Minerals Exploration

" * * * have an accounting system that is designed to accurately record the costs."

Kirby's only objection to Union's damage evidence centers around its contention that the appellee failed to introduce sufficient evidence that the amount expended for reconstruction was reasonable and necessary.

In South Cheyenne Water and Sewer District v. Stundon, Wyo., 483 P.2d 240, 243 (1971), we said:

"The measure of damages to property which can be repaired and substantially restored to its former condition is the reasonable cost of repair or restoration. Allied Hotels, Limited v. Barden, Okl., 389 P.2d 968, 973; Parker v. Harris Pine Mills, 206 Or. 187, 291 P.2d 709, 717, 56 A.L.R.2d 382; Burr v. Clark, 30 Wash.2d 149, 190 P.2d 769, 774; Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 143 P.2d 12, 17, certiorari denied 321 U.S. 793, 64 S.Ct. 790, 88 L.Ed. 1082, rehearing denied 322 U.S. 768, 64 S.Ct. 942, 88 L.Ed. 1594."

The testimony pertaining to reasonableness and necessity of the costs for reconstruction in the case at bar may be summarized as follows:

The resident engineer at the Sweetwater Uranium Project testified to the type and extent of damage caused by the fire and to the necessity of replacing certain equipment in the mill. This witness related that he regularly observed the progress of the reconstruction effort and that the work was done efficiently, without wasted time or effort. He said that no equipment was replaced which did not need replacing.

Concerning the Kaiser charges for the reconstruction, which accounted for $5,230,246.50 of plaintiffs' damage claim, the actual progress billings, including backup invoices and Kaiser time cards, were introduced. Plaintiffs sought to recover for the charges on only the first 13 Kaiser The Sweetwater Uranium Project manager, Larry Dykers, who holds a degree in mining and engineering, testified to the reasonableness and necessity of the reconstruction effort. This witness had been appointed to head the reconstruction management and coordination team and was intimately involved in all phases of the job. He reviewed and developed the reconstruction and cleanup plan, personally inspected the work on the project numerous times each day, and participated in the daily planning regarding equipment replacement and work-force assignments.

billings, even though another 18 were sent to and paid by Union. The record reveals that the plaintiffs eliminated from their claim all questionable costs, including travel expenses, office supplies and vehicle maintenance.

Mr. Dykers testified regarding the type of damage which was suffered and the extent of the necessary cleanup and repair. He related that the labor was performed with a high degree of efficiency and that no equipment was replaced which did not need to be replaced. He testified that there were instances of equipment damage warranting replacement but the items were not replaced as a matter of expediency.

Mr. Dykers explained that the work performed and equipment replaced in the reconstruction effort was necessary to repair the mill. He further stated that the amount claimed by Union as damages for repair of the fire damage was reasonable. This testimony was supported by the fact that Mr. Dykers had prepared an estimate that the reconstruction would cost approximately $8,000,000 as part of his duties as project manager. The $6.4 million claimed by plaintiffs for the reconstruction-cost element of their damage claim is well within the reasonable range of this...