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Fireman's Fund Insurance Co. v. Whirlpool Corp.2/15/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In these consolidated appeals, Dayco Products, Inc. (Hose Supplier) was found liable for supplying a defective product. That product was the rayon-reinforced rubber hose used in washing machine water inlet hoses (inlet hoses). The inlet hoses were produced by Omega Products, Inc. (Inlet Hose Supplier), then sold to Whirlpool Corporation (Manufacturer), which incorporated them into Manufacturer's washing machines (Inlet Hose Supplier and Manufacturer will be referred to collectively as Respondents). Some inlet hoses burst, flooding consumers' homes. Two homeowners who were damaged by such flooding were insured by Fireman's Fund Insurance Company (Insurer). Insurer paid off its insured homeowners, then sued Hose Supplier, Inlet Hose Supplier, and Manufacturer on a subrogation theory.
A jury concluded that the homeowners in question were not at all responsible for the loss, and apportioned liability between Hose Supplier, Inlet Hose Supplier, and Manufacturer. Thereafter, Insurer moved for an award of attorney fees in its favor, and against Hose Supplier, pursuant to Code of Civil Procedure section 2033, subdivision (o), on the ground that Hose Supplier's unwarranted refusal to adequately respond to Insurer's Requests for Admissions caused Insurer to expend otherwise avoidable legal fees. The trial court agreed, and awarded Insurer $44,500 in attorney fees, payable by Hose Supplier. We affirm this order in case No. B149303.
Hose Supplier contends the judgment against it was the result of a number of errors. It also contends that the trial court abused its discretion, and committed various legal errors, by awarding Insurer attorney fees. We affirm this judgment in case No. B145197.
FACTUAL AND PROCEDURAL BACKGROUND
Insurer sued Hose Supplier, Inlet Hose Supplier and Manufacturer, among others, for negligence, strict liability and breach of warranty after Insurer paid off the claims of two of its insureds for water damage caused by water released by burst washing machine water inlet hoses. Hose Supplier had supplied the rubber hose used in the water inlet hoses. Inlet Hose Supplier had assembled the water inlet hoses using hose material supplied to it by Hose Supplier, plus couplings from other suppliers. The water inlet hoses then had been incorporated into Manufacturer's washing machines, and the washing machines were then sold by Circuit City (Retailer), another named defendant.
The matter proceeded to trial. Hose Supplier took the position that it merely supplied a subcomponent of the product (the rubber hose). Manufacturer took the position that it had relied on Inlet Hose Supplier to supply any needed expertise in the area of inlet hose construction, and had not participated in developing specifications for the water inlet hoses. Inlet Hose Supplier took the position that it had relied on Hose Supplier to supply any needed expertise in the area of reinforced rubber hose construction, and had not participated in developing specifications for the reinforced rubber hoses. Based on the evidence produced, as well as on Manufacturer's above-noted position, the trial court declined to instruct the jury on the "bulk sales/sophisticated purchaser" rule contained in section 5 of the Third Restatement of Torts, which is sometimes known as the "learned intermediary" rule.
The jury returned a
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