Sedgwick Ins. v. F.A.B.E. Custom Downstream Sys., Inc.

• Decision Date: 22 January 2015
• Docket Number: Case No. 13–10485.
• Citation: 81 F.Supp.3d 582
• Parties: SEDGWICK INSURANCE and Angela Sarazin, Plaintiffs, v. F.A.B.E. CUSTOM DOWNSTREAM SYSTEMS, INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

81 F.Supp.3d 582

SEDGWICK INSURANCE and Angela Sarazin, Plaintiffs

v.F.A.B.E. CUSTOM DOWNSTREAM SYSTEMS, INC., Defendant.

Case No. 13–10485.

United States District Court, E.D. Michigan, Southern Division.

Signed Jan. 22, 2015.

Gary S. Fields, Johnson Law, PLC, Detroit, MI, Alexander H. Benson, Eisenberg, Benson, Matthew L. Turner, Sommers Schwartz, P.C., Southfield, MI, for Plaintiffs.

Robert S. Abramson, Kopka, Pinkus, Dolin & Eads, P.L.C., Farmington Hills, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 45)

PAUL D. BORMAN, District Judge.

Now before the Court is Defendant F.A.B.E. Custom Downstream Systems, Inc.'s (“CDS”) June 16, 2014, Motion for Summary Judgment of All Claims Pursuant to Fed. R. Civ. Proc. 56(a). (ECF No. 45). Pursuant to a stipulation to extend the time to file a response, Plaintiff Angela Sarazin filed her response on July 17, 2014 and then a corrected response on July 18, 2014. (ECF Nos. 47, 48). Defendant CDS then filed a reply. (ECF No. 53).

This case was consolidated pursuant to a stipulation on August 16, 2013 (ECF No. 21), such that Sedgwick Insurance v. CDS, Inc., case number 13–10485 was consolidated with Angela Sarazin v. Custom Downstream Systems, Inc., case number 13–10492. Thereafter, the caption in this action was amended to reflect the correct corporate name of the defendant, F.A.B.E. Custom Downstream Systems, Inc., that was misidentified in the pleadings as “Custom Downstream Systems, Inc.” (ECF Nos. 26, 58).

A hearing was held on this matter on September 26, 2014. For the reasons set forth below, the Court shall DENY Defendant's Motion for Summary Judgment.

I. BACKGROUND

On February 24, 2010, Plaintiff Angela Sarazin cut off most of her hand on a Servo–Fly Knife Cutter (“SFK Cutter”) while working for Fagerdala USA–Marysville, Inc. (“Fagerdala”) as seasonal general labor on loan from a temporary employment agency called Manpower. (Def.'s Ex. I, Sarazin Dep. at 13, 33, Compl. ¶ 7; Ex. P, Cornenworth Dep. at 17, 70).¹

A. Process to make Foam Noodles

Fagerdala was in the business of producing a variety of foam products including “pool noodles”, which are floatation devices made of foam and usually long and tubular in shape.² (Compl. ¶ 7; Cronenworth Dep. at 8–9). Fagerdala used multiple pieces of machinery to produce its foam products including pool noodles. (Cronenworth Dep. at 24–27). The first machine on the line was an extruder which melted the polyethylene resin and introduced a isobutan gas into the melted resin. In the creation of pool noodles, the melted resin then exited the extruder in one continuous strand of anywhere from 50 to 70 feet in length. (Cronenworth Dep. at 8, 24–27). The shape of the foam or its “profile” was dictated by a die or sheath through which the foam was extruded. (Ex. Q, Jorgensen Dep. at 10–11). The strand then went into a water bath, which involved spraying water onto the extruded resin to cool it. (Cronenworth Dep. at 26–27). After the water bath, the foam strand was fed into a “puller” which was described as “tank tracks” that would propel the foam strand into the SFK Cutter. (Id. ). The SFK Cutter then cut the foam strand to the appropriate length, 60 inches. (Id. ). The 60 inch long pool noodle was then carried on a conveyor belt to the labeler, where a label would be blown on to it, and it was then dropped onto a table where it was boxed by an employee. (Id. at 27–28).

The SFK Cutter had a single blade that would automatically cycle to cut the foam strand. (Id. at 28, 41). The SFK Cutter's blade cycled in response to an electronic signal received from the puller which was based on the revolutions or speed of the puller. (Id. at 51–52; Ex. B, Pecora Dep. at 149). Therefore, the SFK Cutter cut at regular intervals regardless of whether product was being extruded, and based only on the continued operation of the puller. (Cronenworth Dep. at 52; Pecora Dep. at 149).

B. Plaintiff Sarazin's Injury

At the time of her injury, Plaintiff Sarazin had been working for approximately three weeks on Fagerdala's assembly line and she was positioned at the end of the conveyor belt approximately fifteen feet downstream from the SFK Cutter. (Sarazin Dep. at 39, 42; Cronenworth Dep. at 17; Jorgensen Dep. at 30). Plaintiff Sarazin described her job and location as being: “where the pool noodles come off the conveyor belt, land on the table, I check them, make sure they're the right color, it's got a sticker, and put them in the box accordingly”. (Sarazin Dep. at 39:21–24; Ex. N, Zimmer Dep. at 11). After Plaintiff Sarazin had filled all of the boxes on her cart with noodles, she would then go retrieve another cart full of empty boxes to fill with noodles. (Id. at 42). Plaintiff Sarazin never actually worked on the SFK Cutter and it was not part of her job to run or operate that machine. (Cronenworth Dep. at 17; Jorgensen Dep. at 52, 67). Plaintiff Sarazin testified that she did not receive any safety training on any of the machines but was told by supervisors not to put her hands into any of the machines. (Sarazin Dep. at 36, 71).

On or about the morning of February 24, 2010, employees were notified that the line was shutting down and to clean up before going home. (Sarazin Dep. at 64; Jorgensen Dep. at 65). Plaintiff Sarazin testified that she believed there may have been a problem or jam up with the machines, although other employees testified that there was a “changeover” to a different color noodle that necessitated shutting down the line. (Id.; Pl.'s Ex. 19, Lawson Dep. at 26; Ex. Q, Jorgensen Dep. at 46). Plaintiff Sarazin testified it was the first time the plant had shut the machines down while she had been working on the line. (Sarazin Dep. at 64). It is undisputed that Plaintiff Sarazin was never trained on the operation of the SFK Cutter or on safety procedures related to the SFK Cutter.

At the time of the machine jam or changeover, Plaintiff Sarazin was instructed by a supervisor to clean up all the noodles from the table and under and around the machine. (Id. at 65). While cleaning she saw two white noodles stuck in the input or feed side of the SFK Cutter. (Id. at 68–69). Plaintiff Sarazin testified that she believed that the machines were off so she did not get a supervisor to remove the noodles from the input feed of the SFK Cutter, but stuck her own hand in to grab them. (Id. at 69, 85). Plaintiff Sarazin also did not know prior to the accident that there was a blade in the SFK Cutter. (Id. at 49). Upon inserting her hand into the feed side of the SFK Cutter, she felt a tingle and then does not remember anything due to shock. (Id. at 72).

Meanwhile a Fagerdala supervisor, Barry Jorgensen, testified that in order to changeover the line he first shut down the feed to the extruder and then proceeded to walk down to the puller and SFK Cutter to power them down. However, before he reached the puller or the SFK Cutter to power them down, he encountered Plaintiff Sarazin coming towards him with an obvious injury to her hand. (Jorgensen Dep. at 50, 55).

The SFK Cutter cut off 3/4's of Plaintiff Sarazin's right hand. Doctors attempted to reattach Plaintiff Sarazin's hand, however, the re-attachment failed. (Id. at 98–99,103). Thirteen months after the failed re-attachment, Plaintiff Sarazin had her hand and arm amputated up to her mid forearm. (Id. ).

C. The SFK Cutter

It is undisputed that the SFK Cutter at issue in this litigation, model CSFK 6.5, was designed, manufactured, and sold by Defendant CDS. (See Pl.'s Ex. 4, Interrogatories; Compl. at ¶ 3; Ex. B at 21, 1/27/06 Invoice for Belt Haul–Off and Servo Fly Knife Cutter Model No. CSFK–6.5). Anthony Pecora, then a sales representative for Defendant CDS, testified that negotiations between Fagerdala and Defendant CDS regarding the purchase of the SFK Cutter began in approximately 2004 and culminated in the purchase of the SFK Cutter and the puller in January 2006. (Ex. B, Pecora Dep. at 49–50). Pecora explained that he visited the Fagerdala plant at least once during the negotiations regarding the purchase of equipment, sometime between December 2004 and January 2006. (Id. at 44). Pecora explained that at the time Defendant CDS shipped the SFK Cutter it came with a blade guard with disconnect and bushings over the input and outlet to the cutter blade.³ (Id. at 58–60, 62–63; see Ex. T at 1 (picture)). However, Defendant CDS does not dispute that the SFK Cutter was “not usable” as a cutter in this condition unless the customer modified the SFK Cutter by either removing or drilling through the bushings to allow product to go through the machine to be cut. (Pecora Dep. at 6364, 93–94; Pl.'s Br. Ex. 7, Gerry Lamorte Dep. at 30, 38). Defendant CDS's field technician manager, Gerry Lamorte, explained that once the SFK Cutter's bushings were opened, the machine would need safety guarding to ensure safety. (Lamorte Dep. at 38, 40). At the time Fagerdala purchased the SFK Cutter, Defendant CDS offered a 36 inch tunnel guard with interlock (such that removing the guard would turn off the machine) as a separate option for purchase. (Pecora Dep. at 71–73; Lamorte Dep. at 33). Defendant CDS contends that it was its normal business practice to offer this safety feature to customers, however, there is no documentary evidence or testimony that this safety feature was ever offered to Fagerdala. (Pecora Dep. at 74). Plaintiff Sarazin argues that Fagerdala was unaware that these guards were available for purchase. (See Ex. B, Price quotations from 2004 through 2006, 2006 Invoice; Pl.'s Ex. 9, Gerald Seltz Dep. at 22–24).

It is undisputed that at the time of Plaintiff Sarazin's injury, there was a twelve inch tunnel guard on the SFK Cutter. (Ex. O, MIOSHA Violation and Penalty Document, at 5). This 12 inch guard was fabricated by Fagerdala, specifically Dwain Seltz who was employed by Fagerdala as a maintenance technician. (Ex. M, Seltz Dep. at 10, 25). Mr. Seltz was directed by Victor...