Lumbermen's Underwriting Alliance v. Can-Car, Inc.

• Citation: 645 F.2d 17
• Decision Date: 01 December 1980
• Docket Number: No. 78-3690,CAN-CA,INC,78-3690
• Parties: LUMBERMEN'S UNDERWRITING ALLIANCE, a foreign corporation, Plaintiff-Appellee, v., a foreign corporation, a division of Hawker Siddeley Canada, Ltd., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 17

645 F.2d 17

LUMBERMEN'S UNDERWRITING ALLIANCE, a foreign corporation Plaintiff-Appellee, v. CAN-CAR, INC., a foreign corporation, a division of Hawker Siddeley Canada, Ltd., Defendant-Appellant.

No. 78-3690.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 15, 1980.

Decided Dec. 1, 1980.

Michael A. Beale, Jennings, Strouss & Salmon, Phoenix, Ariz., for defendant-appellant.

Theodore Matz, Matz & Jurowitz, Phoenix, Ariz., for plaintiff-appellee.

On Appeal from the United States District Court for the District of Arizona.

Before ANDERSON and POOLE, Circuit Judges, and WOLLENBERG ^*, District Judge.

PER CURIAM:

In September 1974, a C7D tree farming machine owned by Southwest Forest Industries sustained fire damage in the amount of $17,648.15. The C7D was manufactured by Hawker Siddeley Canada, Ltd., and sold by its wholly-owned subsidiary, Can-Car, Inc. Pursuant to a subrogation clause in an insurance contract between Southwest Forest Industries and LUA (Lumbermen's Underwriting Alliance), the claim against Can-Car was assigned to LUA. This products liability action was initiated by LUA seeking recovery for the loss based on the theories of negligent design or manufacture, and breach of express or implied warranties.

It is undisputed that the fire resulted from an accumulation of pine needles, wood chips, and other combustible materials around the moving parts housed in the belly pan of the C7D. As the material became compressed against the moving parts, heat was generated which eventually ignited the accumulated debris. The controversy, therefore, centered around the question of who was responsible for the accumulation of debris in the belly pan.

LUA contended that the accumulation resulted because the design of the C7D precluded reasonable access to the belly pan for inspection, maintenance, and removal of debris in the exercise of ordinary and routine procedures. LUA does not argue, nor does the evidence establish, that removal of the debris was impossible. Rather, it attempted to prove that removal of the debris was unreasonably difficult. Can-Car contended that reasonable access to the belly pan was afforded. It attempted to prove that the accumulation of debris in the belly pan was a known hazard, and that the fire resulted from the owner-operator's failure to exercise reasonable and necessary procedures for the removal of accumulated debris.

The district court held Can-Car liable, finding that the negligent design of the belly pan of the C7D was the proximate cause of the resulting loss. It ordered LUA's counsel to prepare and submit proposed findings of fact and conclusions of law. It appears from the record, and was conceded by counsel during oral argument, that the trial court mechanically adopted the findings and conclusions as prepared by the victorious party. We take this opportunity to stress that this practice has been disapproved by this court. Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970).

On appeal Can-Car contends that (1) the findings of fact as required by Rule 52(a), Fed.R.Civ.P., are inadequate; (2)...