One Beacon Insurance v. Broadcast Development Group, Inc.

147 F. App'x 535
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 29, 2005
Docket04-5517
StatusUnpublished
Cited by10 cases

This text of 147 F. App'x 535 (One Beacon Insurance v. Broadcast Development Group, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
One Beacon Insurance v. Broadcast Development Group, Inc., 147 F. App'x 535 (6th Cir. 2005).

Opinion

PER CURIAM.

One Beacon Insurance Company (“One Beacon”) appeals a jury verdict in favor of Broadcast Development Group (“BDG”) on One Beacon’s negligence claim arising from the collapse of a partially erected broadcast tower. One Beacon was the insurer of Ryan Construction, which had sub-contracted the erection of the tower to BDG. On appeal, One Beacon argues that the trial court erred in instructing the jury on spoliation of evidence by Ryan Construction, and in allowing three expert witnesses to testify on behalf of BDG. For the reasons that follow, we affirm the judgment of the district court.

I

This case arose from the wreckage of approximately 350 feet of a partially constructed broadcast tower, which collapsed on March 4, 2000. The tower was designed by Central Tower (“Central”). Central manufactured the component parts of the tower, which consisted of three-legged steel members, each with a flange welded to the end that enabled the legs to be bolted together. These parts were bolted together on the job site into twenty-foot sections by Ryan Construction, the sister company of Central. Ryan Construction, in turn, hired BDG to erect the tower from the twenty-foot sections. The tower was erected by attaching a guy wire to each leg of the section, pulling the seetion into place using a hoist, and steadily increasing the tension of the wires before attaching each wire to an anchor head cemented into the ground.

Blame initially fell on BDG, whose employees failed to anchor, even temporarily, one of the guy wires before leaving for the night, leaving the wire secured only by the brake mechanism of the pulling plates used to haul the tower sections into place. Early the following morning, the wire slipped from the pulling plates, causing the tower to whiplash forward, shearing three of the six flange plates from the legs in sections 34 and 35 of the tower, breaking the connection of those sections, and causing several sections of the tower to catapult away. The remainder of the tower then snapped back, which caused additional sections to break away. Marmaduke Lowrey, the supervisor of the BDG crew, and Bobby Miller, an employee of Ryan Construction, inspected the remains of the tower within three hours of the collapse, and concluded, in a report written shortly thereafter (“the Miller Report”), that the overriding cause of the accident was rigging failure, and that it could only have been prevented by the use of “safeties” to secure the wire that slipped.

Shortly after the collapse, BDG President Joe Werlinger inspected the site, along with a representative of BDG’s insurance company, who videotaped the scene of the accident. Eight days later, Werlinger visited the site again, accompanied by a different representative from the insurance company, and an engineer and tower manufacturing company owner named Tom Nudd. Neither Werlinger nor either of the insurance company representatives asked to remove any sections of the tower from the site. Approximately a *538 week after the collapse, BDG was ordered off the job site, and was not allowed to complete the erection of the tower.

In September 2000, the portions of the tower that were buried in the ground as a result of impact after the collapse were left there and covered over, and the remainder of the tower was taken to a scrap yard.

At this point, too late to inspect the wreckage anew, BDG began to suspect that the collapse may have been caused, at least partially, by defective welds holding the flanges to the legs of the tower. Werlinger spoke to a former employee of Central named Ernie Jones, by then employed by one of Central’s competitors. Jones told him it was not inevitable that a tower would collapse after a guy wire slippage, and suggested that defective welds may have been part of the problem. It subsequently came to light that Joe Mooney, Central’s quality control supervisor, had complained of defective welds during the manufacture of the tower components, and sent several faulty welds back to be redone. Mooney testified later that he was told at the time by Ray Ryan, owner of both Central and Ryan Construction, that there was no problem with the welds, and that Mooney should concentrate on inspecting the outgoing shipments, which had been going out short of parts. Mooney testified that he was caught inspecting the welds after being told not to, and was told by Ryan that he would be fired if caught doing so again. It also came to light that Mooney had been sent by Ryan to the site of the collapse in June 2000, before the wreckage was destroyed, and that Mooney tested some of the welds on one of the damaged sections of the tower that was lying on the ground. Mooney found one leg with the flange broken off, and one leg snapped in two. The leg that had snapped in two was sent back to Central and retained until at least April 2001, thirteen months after the collapse. It was then apparently lost or destroyed. Mooney also gave a report to Ryan stating that one of the legs had snapped “at a support pad right where we had problems with undercut.” “Undercut” was one of the problems Mooney had identified in the welds back in 1999. Neither Mooney’s report nor the leg he sent to Central was ever produced during discovery or the trial in this case, although it is unclear from the record whether BDG’s discovery requests required production or disclosure of either item.

In late 2000, after negotiating the sale of Central and Ryan Construction, Ryan submitted a claim to his insurance carrier, One Beacon, which paid him $325,307.65 in settlement of his claims. One Beacon then filed suit against BDG in June 2002, alleging that BDG negligently caused the collapse of the tower by failing to prevent the guy wire from slipping. BDG filed a counterclaim against Ryan Construction and Central, alleging that they were responsible for the collapse of the tower, due to their negligent design and manufacturing of its components, specifically the welds holding the flanges to the legs.

BDG retained three experts who testified at trial, each over the objections of One Beacon. Richard Roberts, a metallurgist, examined four pieces of the tower, including two pieces he found at the site in 2003. None of the pieces he examined came from the sections that broke and caused the collapse. Roberts testified that he measured the welds on two of the four pieces, and found that they were smaller than called for in Central’s design plan for the tower, and that they were defectively executed. He also testified that if the welds had been properly executed, the welds would have been stronger than the bolts used to join the sections of the tower, and that the bolts would have broken be *539 fore the welds gave way after the guy wires slipped.

Roberts testified that the diagram given by Central to the welders was confusing, and could not have enabled the welders to correctly weld the flanges to the legs, in large part because the type of welds called for on the diagram were impossible to make to the required strength given the way the legs were designed. When asked whether the tower was defectively manufactured, Roberts stated that, in his opinion, “the manufacturing procedure was defective,” because the design drawings were confusing and inaccurate, and the two welds he examined were even weaker than called for by the design drawings.

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Bluebook (online)
147 F. App'x 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/one-beacon-insurance-v-broadcast-development-group-inc-ca6-2005.