American Cent. Ins. Co. v. Terex Crane

861 So. 2d 228, 2003 WL 22519466
CourtLouisiana Court of Appeal
DecidedNovember 7, 2003
Docket2003 CA 0279
StatusPublished
Cited by7 cases

This text of 861 So. 2d 228 (American Cent. Ins. Co. v. Terex Crane) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Cent. Ins. Co. v. Terex Crane, 861 So. 2d 228, 2003 WL 22519466 (La. Ct. App. 2003).

Opinion

861 So.2d 228 (2003)

AMERICAN CENTRAL INSURANCE COMPANY and Central Erectors, Inc.
v.
TEREX CRANE and Koehring Company.
Louisiana Workers' Compensation Corporation
v.
Terex Crane, Inc., et al.

No. 2003 CA 0279.

Court of Appeal of Louisiana, First Circuit.

November 7, 2003.
Rehearing Denied January 5, 2004.

*230 Daniel R. Atkinson, Jr., Baton Rouge, Counsel for Plaintiff American Central Insurance Company.

Edwin L. Hightower, Baton Rouge, Counsel for Plaintiff Central Erectors, Inc.

Musa Rahman, Baton Rouge, Counsel for Plaintiff-Appellee-Cross-Appellant Louisiana Workers' Compensation Corporation.

Robert E. Couhig, Jr., Leslie A. Lanusse, Raymond P. Ward, New Orleans, Counsel for Defendant-Appellant Koehring Cranes, Inc.

Kevin Patrick Monahan, Denise Ann Vinet, Baton Rouge, Counsel for Intervenor-Appellee-Cross-Appellant Louis Chapman, Jr.

Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.

FITZSIMMONS, J.

Appellant/defendant, Koehring Cranes, Inc. (Koehring), appeals the jury's allocation of fault to Koehring for an accident involving a crane it had manufactured. Louis Chapman, Jr. (Chapman), appellee/cross-appellant, contests the jury's verdict for future lost wages; past, present and future pain and suffering; mental pain and suffering; disability; and loss of enjoyment of life. Following a review of the facts and law surrounding the issues in this case, we affirm.

BACKGROUND

On May 16, 1996, Central Erectors, Inc. (Central Erectors), a contracting company, was erecting a steel structure for a bus *231 station in Baton Rouge, Louisiana. A second-hand, 1970 model Lorain MC 665 crane was being utilized to lift the structural steel components of the roof. The crane, which had been purchased by Central Erectors in 1982, was manufactured by Koehring.

Louis Chapman, Sr., Chapman's father, employed Chapman as a steel worker. At the time of the incident, Chapman was positioned on the roof of the building with another steel worker, Brent Carpenter. Donnie Lee (Lee), a Central Erector employee who operated the crane, was in the process of lowering the boom of the crane so that the steelworkers could bolt a purlin to the roof, when a loud popping sound occurred in the back of the crane cab. Thereafter, Lee's application of the brakes failed to stop the boom from hitting the building. In an effort to escape being hit by the falling boom, Chapman was forced to drop twenty feet from a beam to the ground. He incurred serious injuries to his left foot and ankle, right wrist, right elbow, and thoracic spine.

American Central Insurance Company (American Central), the insurer for Central Erectors, and Central Erectors filed a petition against Koehring and Terex Crane, Inc., in which American Central sought subrogation for the cost to repair the damage to the boom of the crane. In a separate petition, Louisiana Workers' Compensation Corporation (LWCC) filed a lawsuit against Koehring and Central Erectors to recover benefits and medical expenses that it had paid to Chapman. Chapman intervened in the latter suit to recover damages resulting from the collapse of the crane's boom. Central Erectors filed a cross-claim against Koehring, as well as a third party demand in which it sought statutory employer status. The two cases were ultimately consolidated.

Following trial on the merits of the consolidated case, Central Erectors was assigned sixty-two percent fault; thirty-eight percent fault was attributed to Koehring. Damages were awarded to Chapman in the following amounts: past medical expenses, $253,204.24; future medical expenses, $304,296.00; past lost wages, $100,000.00; future lost wages, $100,000.00; past and future physical pain and suffering, $100,000.00; past and future mental pain and suffering, $40,000.00; permanent physical impairment and disability of the body, $100,000.00; and loss of enjoyment of life, $100,000.00.[1]

On appeal, Koehring asserts clear error in the jury's imposition of fault for failure to warn. Contrarily, Chapman seeks an increase in future lost wages; past, present and future physical and mental pain and suffering; permanent physical impairment; disability; and loss of enjoyment of life.

FAILURE TO WARN

Louisiana law ascribes to a manufacturer a duty to provide warning of any danger inherent in the normal use of its product which is not within the knowledge of an ordinary user. La. R.S. 9:2800.57 C; Bunge Corporation v. GATX Corporation, 557 So.2d 1376, 1384 (La. 1990). The manufacturer's duty to warn is a continuing one. Id.

*232 It was not disputed by the parties that the boom hoist brake failed when an anchor bolt securing the brake fractured. A review of the record presented on appeal presents disparate expert analyses of the etiology of the anchor bolt's fatigue failure. Norman C. Hargreaves (Hargreaves), the director of product safety for Terex Corporation, of which Koehring is a wholly owned subsidiary, opined that the bolt failure resulted because it "seized" due to a lack of lubrication of the adjacent pin. This opinion was echoed by Dr. Gerald Whitehouse, an engineer testifying on behalf of Koehring. Dr. Whitehouse stated that corrosion evidenced on the pin demonstrated the lack of a Teflon-based lubricant that resists water and heat, called "nevr-seize," in the area.

Contrarily, Michael Hames, the employee of Central Erectors responsible for maintaining the crane, testified that he had, in fact, put "nevr-seize" on three pins in the subject bracket; therefore, the bolt should have been lubricated. He also disputed the proposition that the pin was corroded or frozen to the bracket. Instead, Andrew J. McPhate, a mechanical engineer and retired professor testifying on behalf of Central Erectors, attributed the breakage of the anchor bolt to fatigue failure as a result of misalignment. In this regard, Dr. John H. Tabony, Jr., an expert in the field of mechanical and metallurgical engineering, pointed out that fatigue failure is usually a design defect. Mr. Hames noted that the problem of misalignment of the bolt was not addressed in any standard; therefore, fatigue failure could have occurred even if the machinery had been maintained in strict conformance with American National Standards Institute (ANSI) and Occupational Safety Hazard Administration (OSHA). It was additionally stated by J.D. Roberts, a board certified safety professional and safety management consultant, that conformity with the safety plan was not proximately related to the cause of the accident at issue. Finally, Professor McPhate stated that the placement of an inexpensive half-inch spherical washer would have easily corrected the misalignment and prevented the bolt failure.[2]

All parties focused on the Koehring's Lorain Operator's Manual for the MC 665 crane to buttress their case. Koehring established that Central Erectors had not complied with the OSHA and ANSI standards in its maintenance procedures. Nor had Central Erectors adhered to the inspection regimen dictated in Koehring's Lorain Operator's Manual.

Stephen A. Killingsworth, a mechanical engineer, rebutted Koehring's assertion that the accident occurred due to Central Erector's failure to properly lubricate the pins surrounding the bolt with "nevr-seize." He opined on behalf of Central Erectors that the Operator's Manual failed to address the need for application of "nevr-seize" to the boom hoist braking mechanism.

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Cite This Page — Counsel Stack

Bluebook (online)
861 So. 2d 228, 2003 WL 22519466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-cent-ins-co-v-terex-crane-lactapp-2003.