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Doall Louisville Co. v. Ferrante12/5/2003
AFFIRMING
This is a products liability case with a lengthy procedural history. The issues on appeal concern the apportionment of liability, post-judgment interest, and a penalty assessed under KRS 26A.300.
FACTS
On October 14, 1991, Frank Ferrante sustained an eye injury from a shattered cutting tool similar to a drill bit, commonly referred to in the industry as an end mill. It is significant to note that the end mills are manufactured from blanks, which are metal rods made from a hard alloy. Ferrante, a tool and die maker, was leaving his shop for lunch when the accident occurred. As he walked past a milling machine being operated by his father a brand new end mill broke causing injury to Ferrante's eye.
Ferrante filed the instant action against Huff Carbide Tool, the manufacturer of the end mill, and against DoAll Louisville Company, the seller of the end mill, alleging negligence, strict liability and breach of implied warranty of merchantability. In May 1993, Ferrante filed an amended complaint against Rogers Tool Works, Inc., alleging that Rogers manufactured the blanks used in making the end mill. Huff and DoAll then filed third-party complaints seeking indemnity from Rogers. DoAll also filed a third-party complaint against Huff Carbide seeking common-law indemnity based in part upon an implied warranty of merchantability. Prior to trial, Ferrante's claim against Rogers was dismissed based on the statute of limitations. DoAll's and Huff's claims against Rogers were also dismissed based on the trial court's conclusion that common-law indemnity, like contribution, had been abolished by the adoption of comparative fault.
TRIAL COURT PROCEEDINGS
At trial, by way of special interrogatories, the jury found that Rogers had not manufactured the blanks, and that Huff and DoAll had each sold the end mill in a defective and unreasonably dangerous condition, and that it was this condition that caused Ferrante's injury. Ferrante, the jury concluded, knew or should have known, on or before the date of the injury that the end mill was subject to shatter. As instructed, the jury did not respond to the next two interrogatories regarding whether Huff and DoAll failed to provide adequate warning. As to the negligence instruction, it found that neither Huff nor DoAll was negligent. On the other hand, it found that Ferrante failed to use ordinary care for his own safety, which was a substantial factor in causing his injury.
Based upon its finding that the defective and dangerous condition of the end mill existed at the time Huff and DoAll each sold it, and that such condition was a substantial cause of Ferrante's injury, it awarded Ferrante $471,343 under the theory of strict liability. The jury apportioned the percentage of fault: 70% to Huff; 10% to DoAll; and 20% to Ferrante ($329,940.10 against Huff and $47,134.30 against DoAll).
In a separate instruction under the theory of implied warranty the jury found that DoAll, as the seller of the end mill to Ferrante, breached the implied warranty of merchantability, for which it awarded Ferrante $471,343. However, following arguments in support of motions for judgment notwithstanding the verdict the court applied to the jury award Ferrante's 20% fault factor, reducing the breach of merchantability award to $377,074.40.
Although the jury made damage awards under each of two theories of recovery, the court provided that Ferrante's total recovery could not exceed $377,074.40.
FIRST APPEAL
Huff appealed the judgment and DoAll and Ferrante cross-appealed. Ferrante contested the reduction of his judgment against DoAll for breach
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