NBIS Constr. & Transp. Ins. Servs. v. Liebherr-America, Inc.
| Decision Date | 03 August 2022 |
| Docket Number | 8:19-cv-2777-AAS |
| Parties | NBIS CONSTRUCTION & TRANSPORT INSURANCE SERVICES, INC., a/s/o Sims Crane & Equipment Company, Plaintiff, v. LIEBHERR-AMERICA, INC., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff NBIS Construction & Transport Insurance Services, Inc. (NBIS) ao Sims Crane & Equipment Company (Sims) (collectively, the plaintiff) brought claims against Defendant Liebherr-America, Inc. d/b/a Liebherr USA, Co. (Liebherr-America) for negligence (count I) and negligent training (count II).[1] (Doc. 24).
The court held a five-day bench trial; heard extensive testimony both live and through depositions; and reviewed many exhibits, including emails, photographs, manuals, and safety campaign literature. (See Docs. 142, 143, 144, 145 147).
Liebherr-America moved for judgment on partial findings (Doc 146) and NBIS responded in opposition (Doc. 151).
For the reasons stated, Liebherr-America's motion for judgment on partial findings (Doc. 146) is granted only as to count II and otherwise denied. After a five-day bench trial, judgment is entered in favor of Liebherr-America on count II for negligent training. Judgment is entered in favor of NBIS on count I for negligence.
This civil action arises from an accident on February 19, 2018 when a 2012 Liebherr LTM 1500-8.1 crane's boom collapsed (the accident).
Sims is a crane and rigging company based in Tampa, Florida. (Doc. 148, ¶ 17). Non-party insurance company International Insurance Company of Hanover SE (IICH) insured Sims against losses and damages to cranes in its fleet. (Doc. 167, Exs. 15, 17). NBIS is a third-party administrator and managing general agent of IICH. (Id.).
Non-party Liebherr Werk Ehingen GMbH (Liebherr-Germany) is an international crane and heavy equipment manufacturer based in Germany. (Doc. 148, ¶¶ 10, 11). Liebherr-America is a Virginia-based company providing sales and services for Liebherr-Germany's cranes in the United States. (Doc. 155, p. 96, In. 17-19). Under the service portion of its business, Liebherr- America provides training to crane customers that own Liebherr-Germany's cranes. (Doc. 155, p. 97, In. 10-16). Liebherr-America also sends product safety updates issued by Liebherr-Germany to current crane owners in the United States. . This product safety service includes verifying, updating, and maintaining ownership records to reflect the current owners of the Liebherr-Germany cranes. ).
In September 2016, Liebherr-America purchased the 2012 Liebherr LTM 1500-8.1 crane at issue from Liebherr-Germany and sold it to crane broker Schuch HeavyLift Corporation (Schuch).[2] (Doc. 148, ¶¶ 19, 20). Schuch never took possession of the crane and resold it to another crane broker, Atlantic Coast Cranes. (Doc. 148, ¶¶ 23, 24).
In August 2016, Atlantic Coast Cranes contracted to re-sell the crane to Sims. (Doc. 148, ¶¶ 25, 26). The Sims/Atlantic Coast Cranes contract states “Liebherr factory trained technician to be provided to commission this machine and train Sims' personnel at no charge.” . According to Liebherr-America's designated corporate representative Ralf Vieten,[3] the purpose of the Liebherr training was to provide “comprehensive knowledge” to crane operators on the safe and proper operation of the crane. (Doc. 155, p. 74, In. 17-21).
The Liebherr LTM 1500 crane has two configurations, a 50-meter boom and an 84-meter boom. (Doc. 148, ¶ 28). There are six locking pins on the 84-meter boom: T1 through T6. ). Next to the T3 pin is the T4 pin. . The T3 and T4 pins look similar and can be adjusted using the same wrench. . However, the T4 pin is open and accessible and, at the time of the accident, did not have a cover plate or was not otherwise labelled to reflect it should not be touched. (Doc. 155, p. 88-89, ln. 15-25, p. 89, ln. 1-13, p. 111, ln. 24-25, p. 112, ln. 125, p. 113, ln. 1). The other locking pins on the 84-meter boom (i.e., T1, T2, T3, T5, T6 pins) each have a cover plate over them. ).
To install the 84-meter boom, a specific locking pin, the T3 pin, must be adjusted to a precise position of 11 millimeters above the locking bore. . Before adjusting the T3 pin, the bolted cover plate over the pin must be removed. .
The photo below shows the T3 and T4 pins of the LTM 1500 crane. (Doc. 155, p. 134, In. 2-17). However, the cover plate for the T3 pin on the crane in this action was secured by bolts, not the wing nuts on the photo below. . Like the crane in the photo, the T4 pin is exposed on the LTM 1500 crane in this action. .
(Image Omitted)
The T4 pin should never be manipulated. . If the T4 pin is manipulated, it must be reset to a factory calibrated position. . The improper manipulation of the T4 pin or improper positioning of the T3 pin can cause an uncontrolled boom collapse. (Id.; see Doc. 149, Ex. 15).
On October 14, 2016, three months before Sims received the Liebherr LTM 1500 crane, Atlantic Coast Cranes provided Sims with the Operator's Manual (the Manual) published by Liebherr-Germany. ). The Manual consists of approximately 2,000 pages of information. (See Doc. 169, Exs. 4, 5, 6). The Manual provides no warnings or instruction about the T4 pin. . The Manual only addresses the T3 pin. ). The instructions applicable to the T3 pin do not contain any warning that property damage, personal injury, or death may occur if the T4 pin is improperly adjusted. ).
On January 18, 2017, the Liebherr LTM 1500 crane arrived at the port in Jacksonville, Florida. . Sims' crane operators Jason D'Angelo and Andrew Farris were at the Jacksonville port for its arrival. .
Liebherr-America employee and trainer Henry Ward also was at the Jacksonville port and instructed D'Angelo, Farris, and other Sims employees during the boom assembly and disassembly to transport the crane to Tampa. ). D'Angelo and Farris assembled boom sections T-1, T-2, and T-3 (50-meter boom) into the crane, and placed the T-3, T-4, T-5, and T-6 boom sections (84-meter boom) on a trailer. ). On January 20, 2017, D'Angelo and Farris drove the crane to Sims headquarters in Tampa, Florida. (Doc. 167, Ex. 4, p. 18, In. 14-25, p. 19, In. 1-22; Doc. 157, p. 23, In. 3-15).
Ward trained D'Angelo and Farris on the LTM 1500 crane at Sims' yard in Tampa from January 30, 2017 to February 4, 2017. (See Doc. 150, Ex. 1, p. 3). It was Ward's responsibility to properly train Sims' employees and to cover the safety topics during the training. .
D'Angelo and Farris received only forty hours of training from Ward, even though Liebherr-America typically provides eighty hours to new customers of cranes. . Ward knew Sims was a first-time owner of an LTM 1500 crane. ).
Farris testified Ward's training involved putting on the crane attachments and swapping out the 50-meter and 84-meter booms. (Doc. 157, p. 23, ln. 16-20, p. 118, ln. 2-24; Doc. 150, Ex. 1, p. 9). However, Ward skipped training on multiple topics listed in the training manual, including the sections on “locating of all locking pins” and “[c]aution and safety issues.” . Ward also did not train Sims' employees to position the T3 pin to 11 millimeters above the locking bore. . Nor did Ward train Sims' employees how to measure the position of the pins. ( )). Instead, Farris credibly testified Ward directed him to adjust the T3 pin “to where it stops” but not to “overtorque” so there is no risk of damaging the internal components of the pin. (Doc. 157, p. 29, In. 22-25, p. 30, In. 1). Consistent with Farris's testimony, D'Angelo testified Ward did not instruct them that the T3 pin must be at 11 millimeters, he only instructed them to “back [the T3 pin] out until it stops.”[4] ).
Ward testified he told Farris and D'Angelo “two or three times” that manipulating the T-4 pin could cause an uncontrolled boom retraction and could risk damage. . This testimony is not credible as it contradicts the separate testimony of...
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