DISA Industries, Inc.
from Calhoun Circuit Court (CV-12-900465)
Industries, Inc. ("DISA"), appeals from a judgment
entered on a jury verdict in favor of Gregory Bell awarding
$500, 000 in compensatory damages.
September 25, 2012, Bell sued DISA, Union Foundry Company
("Union Foundry"), and Duca Manufacturing and
Consulting, Inc. ("Duca"), as well as fictitiously
named defendants, based on injuries he suffered as an
employee of Union Foundry. On March 13, 2014, and January 8,
2015, Bell amended the complaint, substituting the named
defendants SPX Corporation ("SPX"), ABB, Inc.
("ABB"), and Anniston Iron Works, LLC
("Anniston Iron Works"), for the fictitiously named
defendants. In the second amended complaint, Bell asserted
claims of negligence and wantonness and a claim under the
Alabama Extended Manufacturer's Liability Doctrine
("the AEMLD") against defendants DISA, Duca, SPX,
ABB, and Anniston Iron Works, as well as claims arising under
the Workers' Compensation Act against his employer, Union
Foundry. Bell's wife, Althea Bell, asserted a
loss-of-consortium claim against the defendants.
claims against defendants ABB, SPX, and Anniston Iron Works
were subsequently dismissed without prejudice. The claims
against Union Foundry were consolidated for purposes of
discovery, but were subsequently bifurcated for the purpose
DISA and Duca filed motions for a summary judgment. After
conducting a hearing, the trial court granted the motion for
a summary judgment filed by Duca and denied DISA's
summary-judgment motion. The case went to trial against DISA.
August 30, 2016, in accordance with the jury's verdict,
the trial court entered judgment on behalf of Bell and
against DISA, awarding Bell $500, 000 in compensatory
filed a motion for a judgment as a matter of law and a motion
for a remittitur, both of which were denied by the trial
court. On January 23, 2017, DISA filed a notice of appeal.
The New Molding System
Foundry manufactures cast-iron pipe fittings. In 2000, Union
Foundry entered into a contract with Georg Fisher DISA
("GFD"), a predecessor to DISA, for the purchase
and installation of a "New GFD Molding System" at
its foundry. Under the "Terms and Conditions"
section of the contract, DISA set forth the following
limitations, in pertinent part:
"8. Scope Limitations
"a. [DISA] reserves the right to make design,
construction, and procurement decisions based on least cost,
unless certain manufacturers, designs or methods are
specifically provided for in writing in this Contract.
"b. Any equipment, structure or service item that is not
included in writing in this Contract is hereby specifically
excluded from the Scope of this Contract.
"c. [DISA] shall only be responsible for those items set
forth as [DISA's] responsible [sic] in this
proposal, which subsequently became part of the contract,
DISA listed the specific costs for the "Union Foundry
New Molding System and Auxiliaries." DISA indicated the
costs for "building alterations, platforms, and
stairs" as $145, 000, "detail and project
engineering" as $310, 000, "site supervision"
as $150, 000, and "startup assistance and
commissioning" as $180, 000. It also indicated that
"relocat[ion] of the pouring furnace" and
demolition would be "by Union." DISA indicated the
total costs for the new molding system was $9, 999, 900.
attached a "Scope of Supply" to its
proposal. After meeting with Union Foundry
officials, DISA subsequently provided an "expanded
description of the material in [its] proposal," which
included a more detailed "Scope of Supply" and set
forth additional duties for Union Foundry. The expanded Scope
of Supply indicated that DISA would install the equipment for
the molding system, including spill-sand hoppers and
conveyors, a casting conveyor system, a multi-cooler, and
"work platforms (upper and lower at molding machine) ...
and mold line access stiles." It also provided that
"[a]ll equipment or fabrication supplied directly by
[DISA] to be surface prepped and painted GFD blue. All other
manufacturer/vendor supplied with manufacturer's standard
finish/colors." DISA's Scope of Supply for the
electrical installation was limited to the mold-line control
system and other items related to the molding machine and
conveyance system, such as providing necessary conduit, wire,
and labor for the molding-machine control panels and
spill-sand conveyor system. DISA further limited its scope of
piping to the molding-line device and sand cooler. In
addition, DISA's Scope of Supply for foundation and
flooring was limited to the molding machine, auxiliary
devices, cooling lanes, autopour unit, sand cooler, and
proposal also listed numerous responsibilities for Union
Foundry, including the relocation of the "Duca pouring
furnace," "hot metal delivery," and
"[a]nything not specifically listed in the
proposal." However, the contract states "[DISA] to
provide Duca pit in new location." The expanded
agreement sets forth additional responsibilities for Union
Foundry, including the following pertinent sections:
"A. Union [Foundry] will move the existing DUCA 5 ton
capacity pouring furnace and service crane to the new pit
after the new line is operational. Refractory replacement,
power, water and control connections will be Union
Foundries'[sic] responsibility. Union [Foundry] will
modify the pouring spout, if necessary, to accommodate
conditions of the new molding line.
"C. Demolitions including modifying existing sand
hoppers, sand conveyors, platforms, interior walls and
removal of existing equipment [are] Union Foundry['s]
"L. Hot metal delivery, shot blast equipment and casting
handling conveyors are Union Foundry responsibility."
1999, DISA provided initial "arrangement drawings"
of the project to Union Foundry. The "drawing
status" indicated that the arrangement drawings were
"preliminary" and that "safety [was] given
consideration in this design." Additionally, a
handwritten approval note on the arrangement drawings
"These drawings approved as 'general concept as
noted' only. This does not relieve [DISA] of design,
engineering, manufacturing, construction or installation
errors or flaws, omissions or inadequate performance of
equipment, material or installation under [DISA's] work
arrangement drawings included a general modification of the
trough, which is where Bell was working when he was injured.
Foundry's engineers subsequently created more detailed
drawings of the "furnace-platforms plan" that
included a 24-inch modified extension of the trough. Union
Foundry also created specific drawings of the "required
modifications layout" and a "reference
drawing" of the "pour launderer
modifications," which included the 24-inch modified
extension of the trough.
Union Foundry contracted with DISA and moved the furnace, the
foundry employees referred to the area around the mid-level
platform and trough as "the BMD line." After the
furnace was moved and the project was completed, the
employees began referring to both the mid-level platform area
and the molding line as "the GFD line." The
photographs of the foundry, which were taken shortly before
trial, indicate that the mid-level furnace platform was
painted yellow. A set of stairs leading from the mid-level
platform down to the molding-line area were painted blue. ...