Louwagie v. Witco Chemical Corp.
| Citation | 378 N.W.2d 63 |
| Decision Date | 26 November 1985 |
| Docket Number | No. C5-85-1194,C5-85-1194 |
| Parties | Prod.Liab.Rep. (CCH) P 10,782 Charles LOUWAGIE, Appellant, v. WITCO CHEMICAL CORPORATION, Empro Corporation, Respondents. |
| Court | Court of Appeals of Minnesota |
Syllabus by the Court
Summary judgment is inappropriate where the evidence is sufficient to create a genuine issue of material fact regarding the identities of the manufacturer and the supplier of allegedly defective insulation installed in appellant's shed.
Cooper S. Ashley, Minneapolis, forappellant.
Paul E. Stoneberg, Marshall, for respondent WitcoChemical Corp.
Steven J. Muth, Minneapolis, for respondent EmproCorp.
Heard, considered and decided by LANSING, P.J., and RANDALL and CRIPPEN, JJ.
Appellant Charles Louwagie (Louwagie) sued respondents Witco Chemical Corporation (Witco) and Empro Corporation (Empro) for negligence and strict liability in the manufacture and distribution of urethane insulation. The trial court granted respondents' motions for summary judgment, holding that Louwagie failed to present direct evidence establishing that Witco and Empro did in fact manufacture and supply the allegedly defective insulation and that Louwagie's circumstantial evidence was speculative and conjectural. Louwagie contends on appeal that the trial court erred in applying the directed verdict standard to the summary judgment motion and that the summary judgment was inappropriate because the question of the identity of the manufacturer and distributor poses a genuine issue of material fact.
The Morgan Insulation Company (Morgan) installed urethane foam insulation in Louwagie's workshed in 1976. A "thermal barrier" made of a plaster-like substance called Zonolite was added to cover the insulation from the floor up the wall for seven feet. In 1981, a spark from a welding torch operated by Louwagie's son started a fire in the shed, causing personal injury to Louwagie as well as damage to the shed and its contents. Louwagie claims that the spark ignited the insulation through a hole in the Zonolite, causing the entire building to be consumed by fire within minutes. Louwagie sued Witco and Empro, alleging that Witco manufactured and Empro distributed the insulation installed in his shed by Morgan. Louwagie did not then, and does not now, have any personal knowledge as to the identity of the manufacturer and supplier of the insulation that was in the shed. He relies primarily upon a statement made by Sheldon Sandman, part-owner of and sales representative for Morgan, who told a paralegal working for Louwagie's attorney that Witco and Empro manufactured and supplied the insulation. In his deposition testimony, Sandman confirmed that he made this statement, although at the time he did not know that he was speaking with the attorney's employee.
In 1976, Morgan purchased insulation from at least three different suppliers. In support of its motion for summary judgment, Empro submitted an affidavit from Sandman, in which he contradicts his earlier statement regarding the identity of the supplier and manufacturer of the insulation installed in the Louwagie shed. The affidavit asserts that Sandman is not certain which of Morgan's suppliers provided the insulation. Rather, Sandman states that once the barrels of insulation are in Morgan's warehouse, the barrels from the various suppliers are not segregated and there is no way to distinguish between them when the barrels are selected for use.
Witco acknowledges that it manufactures the type of insulation installed in Louwagie's shed and that Empro is its sole distributor in the area. So, if Witco is shown to be the manufacturer of the insulation, Empro will be identified as the supplier. In 1976, however, Morgan purchased insulation manufactured by three companies: Witco, Mobay, and Upjohn. No evidence was presented as to the likelihood that the insulation installed for Louwagie was made by Mobay. There was evidence from Sandman that Upjohn's insulation is identifiable as long as it is still in the barrels, but that after it is installed it is impossible to distinguish it from another manufacturer's product. Just as he did in regard to Empro, regarding distribution of the material, Sandman stated in his deposition that he told a telephone caller (the paralegal from Louwagie's attorney's office) that the product used in the Louwagie shed was manufactured by Witco and then later stated in his affidavit that he had no way of knowing which firm made the insulation used in the Louwagie shed.
In addition to Sandman's affidavit, Witco and Empro rely on Sandman's explanation in his deposition of the reasons for his answer to the telephone inquiries. In his deposition, Sandman stated that he originally named Witco and Empro because to the best of his recollection "that's what was in there [the shed]," because they were the first manufacturer and supplier he had dealt with in his business, and because he had received his education on the flammability of the insulation through their seminars. He also stated that he received more than one telephone inquiry about the same issue and admitted that he never told a caller that the insulation was provided by someone other than Witco and Empro.
Louwagie protests that the inconsistencies between Sandman's telephone statements, his deposition testimony, and his affidavit show that the material fact of the manufacturer's and supplier's identities are genuinely at issue, such that summary judgment was inappropriate. In addition, pertinent to identifying Witco as the manufacturer, Sandman stated that Morgan always applies only one manufacturer's product for both of the two insulation components of an insulation job. This indicates that Morgan was at least able to distinguish between manufacturers' products, if not between the various suppliers' barrels in the warehouse. Louwagie adds that since Empro is Witco's sole distributor in the area, evidence that Witco manufactured the insulation installed in the shed will also show that Empro supplied the Witco insulation to Morgan. Finally, Louwagie also relies on the fact that the only copy of the sales proposal between Morgan and Louwagie that has been discovered in this litigation was produced by Empro.
One other piece of available evidence in the case is a sample of the insulation from Louwagie's shed. In its response to Louwagie's requests for admissions, Witco refused to test the sample, stating that it would cause undue hardship and expense. Witco further stated that, even if it did test the sample, the test results might only permit it to deny that the insulation was their product, if the chemical formula proved distinct from Witco's formula. But if the formula was the same as Witco's, the test would not conclusively show that the insulation was Witco's, since other companies may have utilized the same chemical formula in their production of insulation.
In granting the summary judgment motions, the trial court first stated that the applicable standard is the one that is applied in determining whether a party is entitled to a directed verdict after a plaintiff has rested. The court then found that Louwagie failed to present any direct evidence to establish that respondents furnished the insulation installed in Louwagie's shed. It further held that the available circumstantial evidence sustains with equal justification two or more inconsistent inferences and that neither inference preponderates over the other. The trial court held that in such a case there is no valid issue for a jury, because a jury's verdict would be based solely upon speculation and conjecture. The court also held that Sandman's initial statement naming Witco and Empro as the manufacturer and supplier constitutes hearsay and that it therefore could not be considered in making the summary judgment determination.
1. Do genuine issues of material fact exist, precluding the rendering of summary judgment?
2. Did the trial court err in applying a directed verdict standard to a motion for summary judgment?
Rule 56.03 of the Minnesota Rules of Civil Procedure provides that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.
All parties and the trial court agree that a dispute exists over the material fact of the identities of the manufacturer and supplier of the insulation in Louwagie's shed; the question is whether appellant has identified evidence so that his claim on that issue is genuinely presented here.
In evaluating the trial court's decision, we first examine the appropriate standard of review....
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