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Mack Trucks3/27/2003
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 11/26/1997
TRIAL JUDGE: HON. BARRY W. FORD
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART- 03/27/2003
MOTION FOR REHEARING FILED: 03/05/2001
EN BANC.
1. The motion for rehearing is granted. The original opinions are withdrawn, and this opinion substituted therefor.
2.This products liability case presents issues of liability as well as apportionment of any such liability under our allocation of fault statute, Miss. Code Ann. § 85-5-7 (1999). We dispose of the liability issues summarily and affirm. Plaintiff, on cross-appeal, presses an issue regarding punitive damages with respect to which we also affirm the trial court summarily. As to allocation of fault, we conclude that allocation of fault to immune employers is consistent with § 85-5-7 and required under Estate of Hunter v. General Motors Corp., 729 So. 2d 1264 (Miss. 1999), provided that they are not held liable for damages. We conclude that the trial court properly found the remaining non-settling defendants liable for half the recoverable damages under § 85-5-7(2). Finally, we reform the judgment to properly reflect the fault assessed by the jury. In accordance with these conclusions, we affirm in part and reverse and remand in part.
I.
3. This case is an appeal of a wrongful death action arising from the death of an employee of Wilburn Oil Company ("Wilburn Oil"). The plaintiff is Bobbi Tackett ("Tackett"), only daughter and wrongful death beneficiary of Tony Joe Murphree, the employee who died as a result of an explosion while unloading fuel for his employer. On May 12, 1993, Murphree and Roger Angle, another Wilburn Oil employee, each had truckloads of fuel on two separate trucks, one a Mack powered by a Mack engine, the other a Freightliner powered by a Cummins engine. Murphree was the Mack truck driver. Angle was the Freightliner driver.
4. Contrary to company policy, but consistent with at least one prior occasion, Murphree and Angle decided to offload both trucks at once. Fuel was unloaded from both trucks using hoses and a "T" connector. The fuel was driven by a pump powered by a power-take-off (PTO) on the Mack truck, necessitating that the Mack engine be left running. The Freightliner engine was also left running, though this was not necessary since only the Mack truck was used to pump the fuel to the above ground storage tanks. The Freightliner engine should not have been left running under ordinary safety procedures.
5.Just prior to the explosion Angle was on top of his tanker attached to the Freightliner, looking down into the tanker compartment, checking to see how much fuel was unloaded. Angle said it was at this point that he looked over and saw gas spraying in the air. This was approximately ten to fifteen minutes into the off-loading process. The gasoline spray was coming up between the two trucks, toward the Freightliner on which Angle stood. The spray was like a mist from a garden hose when a thumb is held over it. Upon seeing the spraying fuel, Angle shouted to Murphree to cut off the truck or get off the truck as he ran back toward the rear of his tanker. At this point Angle jumped from the tanker, and one of the trucks exploded. Prior to the explosion he last saw Murphree running toward the Freightliner. After the explosion Angle heard Murphree scream, but he could not see him. Angle went around the side of the truck looking for Murphree when a second explosion occurred. Thereafter, Murphree walked
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