McCoy v. Augusta Fiberglass Coatings, Inc.

• Decision Date: 26 January 2010
• Docket Number: No. 08-2818.,08-2818.
• Citation: 593 F.3d 737
• Parties: Doug McCOY; Linda McCoy, Appellees, Mutual Insurance Company, Amicus Curiae Below, v. AUGUSTA FIBERGLASS COATINGS, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

593 F.3d 737

Doug McCOY; Linda McCoy, Appellees, Mutual Insurance Company, Amicus Curiae Below, v. AUGUSTA FIBERGLASS COATINGS, INC., Appellant.

No. 08-2818.

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2009.

Filed: January 26, 2010.

Beverly Ann Rowlett, argued, Little Rock, AR, for appellant.

Floyd Mattison Thomas, Jr., argued, El Dorado, AR, for appellee.

Before BYE, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Augusta Fiberglass Coatings, Inc. ("Augusta") appeals from an adverse jury verdict against it in a personal injury action filed by Doug McCoy and his wife, Linda McCoy. The McCoys alleged that Augusta manufactured a defective tank that proximately caused Doug McCoy's injuries. The McCoys originally sued Lion Oil Company ("Lion Oil")—where McCoy's injuries occurred.¹ They then amended their complaint to state a cause of action for product liability against Augusta. Prior to trial, Lion Oil filed a third-party complaint against Custom Fiberglass Products, Inc. ("Custom"), McCoy's employer, and Custom and Augusta filed cross-claims against each other. The McCoys settled with Lion Oil and Custom's workers' compensation carrier who had intervened in the case. The case ultimately proceeded to trial with Augusta as the sole defendant. Despite Augusta being the sole defendant at trial, the jury was allowed to apportion fault to McCoy and Lion Oil, applying comparative fault principles of Arkansas law. The jury found in favor of the McCoys, finding that Augusta was 70 percent at fault for McCoy's injuries, Lion Oil was 20 percent at fault, and McCoy was ten percent at fault.

Augusta appeals, arguing that the district court² (1) erred in refusing to allow the jury to apportion fault to Custom in accordance with Arkansas Code Annotated § 16-55-202; (2) abused its discretion in refusing to instruct the jury that Custom's fault could be a superseding proximate cause of McCoy's injuries; and (3) abused its discretion in refusing to admit into evidence an occupational therapist's report. We affirm.

I. Background

McCoy, an employee of Custom, and his supervisor, Luther Amos, arrived at Lion Oil to repair a leaking flange on a tank. Their vehicle contained hard hats, safety glasses, rubber gloves, and a pair of size 11 rubber boots—two sizes larger than McCoy normally wore. After their arrival at Lion Oil at noon, McCoy and Amos met Jeff Carr, a Lion Oil engineer, who showed them the tank in need of repair. Carr voiced concern about Amos and McCoy working on the tank because he knew that they might be exposed to caustic soda. According to Amos, Carr informed him and McCoy that there had been caustic soda in the tank. Amos shared concern about potential exposure to caustic soda while working on the tank, as he expected there to be some liquid in the gusset of the tank. After Amos went into the tank and observed a defect in the tank's seal, he "figured there would probably be some [caustic soda]." Amos had worked with caustic soda before and was aware of its hazardous nature. When Amos had gotten the caustic soda on him in the past, he simply washed it off and continued working.

McCoy gave conflicting testimony on whether Carr, or any other Lion Oil employee, advised him and Amos that the tank at one time contained caustic soda prior to them beginning work on the tank.³ But McCoy maintained that when he and Amos first viewed the tank, he could tell by looking at the flange that it was leaking because it had a white, chalky substance all over it. The substance had traveled down the tank and had dried. McCoy testified that when caustic soda dries, it turns white and chalky.

After Carr showed McCoy and Amos the tank, Lion Oil administered a safety course and safety test to McCoy and Amos. Amos passed the test, but McCoy did not. According to McCoy, he had difficulty understanding the test questions. McCoy had only completed the ninth grade, taking special education classes. While in school, McCoy had difficulty reading. After completing the ninth grade, he attended vocational technical school for four years but never received a general educational development (GED) certificate. A vocational rehabilitation expert testified that she administered an intelligence test to McCoy, which revealed his intelligence quotient (IQ) to be 66, placing him in the borderline to mildly mentally handicapped range of intelligence. After McCoy failed the written safety test, a Lion Oil employee verbally reviewed the questions with McCoy.

At 3 p.m., McCoy and Amos started working on the tank.⁴ According to McCoy, no one instructed him to wear rubber boots while working on the tank, and the rubber boots in the company work truck were not his size. Amos supervised McCoy while McCoy was cutting into the tank. Before McCoy cut into the gusset, Amos corrected McCoy on which way to turn the cutting wheel, as Amos thought that there might be liquid in the gusset. When McCoy made the initial cut, he noticed about a half of a coffee cup of a substance spill from the gusset. Amos also saw the liquid come out of the gusset, but he did not see any of the liquid come into contact with McCoy. At Amos's direction, McCoy washed his foot and sock with a water hose. He then put the wet sock and his leather boot back on and returned to work. About 30 to 45 minutes later, McCoy noticed that his foot was burning. He informed Amos and Carr. Carr sent McCoy to the nurses' station, where his foot was cleansed, a cream was applied, and his foot was bandaged. McCoy signed a Lion Oil accident report that stated that the accident occurred as a result of McCoy walking in caustic water. McCoy sat in the company truck and did not work the rest of the day. After completing work on the tank, McCoy drove them home. That night, McCoy sought medical treatment for his foot.

McCoy and his wife sued Lion Oil and others, alleging that McCoy burned his foot on Lion Oil's premises when caustic soda escaped from a tank on which he was working. Lion Oil then filed third-party complaints against Augusta, S & B, and McCoy's employer, Custom. The district court permitted Custom's workers' compensation carrier, Mutual Insurance Company ("Mutual"), to intervene in the lawsuit. Augusta answered the third-party complaint, requesting that the negligence or fault of all parties found responsible be apportioned pursuant to Arkansas Code Annotated § 16-55-201.

Thereafter, S & B was dismissed without prejudice from the lawsuit. Lion Oil then filed a notice of nonparty liability pursuant to Arkansas Code Annotated § 16-55-202 against Custom, Augusta, and S & B. Custom then filed its cross-claim against Augusta. Augusta answered the cross-claim, requesting that the negligence or fault of all parties found responsible be apportioned pursuant to § 16-55-201. Additionally, Augusta cross-claimed against Custom and Lion Oil, pleading entitlement to contribution and indemnity under § 16-55-201.

After a settlement conference, the McCoys settled with Lion Oil and Mutual. As a result, Augusta moved to adopt Lion Oil's notice of nonparty liability as to Custom and S & B and filed a notice of nonparty liability as to Lion Oil. The McCoys moved to strike Augusta's notice of nonparty liability as to Lion Oil and objected to Augusta's motion to adopt by reference Lion Oil's notice of nonparty liability as to Custom and S & B.

The district court then entered orders dismissing Lion Oil from the suit with prejudice and striking the notice of nonparty liability as to Custom because it was an immune employer under Arkansas law. According to the court, Custom's fault could not be apportioned by the jury, but its fault could be considered as a superseding proximate cause of McCoy's damages. The court also found that Lion Oil's fault could be apportioned by the jury. Subsequently, the district court ordered the dismissal of the following claims: (1) Lion Oil's claims against Custom; (2) the cross-claim by Augusta against Custom; and (3) Lion Oil's third-party complaint against Augusta. The remaining claims were (1) the McCoys' claims against Augusta and (2) Augusta's cross-claims against Lion Oil. Mutual remained as an intervener.

At trial, the district court did not permit the jury to apportion any fault to Custom; instead, the jury could only apportion fault to McCoy, Augusta, and Lion Oil. Also, the district court instructed the jury with regard to intervening/superceding proximate cause as follows:

Defendant contends and has the burden of proving that following any act or omission on its part[,] an event, such as the conduct of Lion Oil, intervened that in itself caused damage completely independent of defendant's conduct. If you so find, then defendant's act or omission was not a proximate cause of any damage resulting from the intervening event because that event supercedes Defendant's conduct.

The fact that another cause, such as Lion Oil's conduct, intervened between any act or omission on the part of the defendant, and the damage for which claim is made, would not relieve the defendant of liability if the damage is reasonably foreseeable as a natural and probable result of any act or omission on the part of the defendant.

(Emphasis added.) The district court declined to give Augusta's requested instruction, which stated that

following any act or omission on [the defendant's] part[,] an event, such as the conduct of Lion Oil or plaintiff's employer, intervened that in itself caused damage completely independent of defendant's conduct.

(Emphasis added.)

The jury found in favor of the McCoys. The jury determined by a preponderance of the evidence that Augusta manufactured the tank in a defective condition, rendering it unreasonably dangerous, which was a proximate cause of the McCoys' damages. The jury apportioned fault between the parties as follows: (1) ten percent fault of McCoy, (2) 70 percent fault of Augusta, and (3) 20 percent fault of Lion...