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Feldman v. The Kohler Co.3/7/1996
March 7, 1996
O P I N I O N
Our opinion of September 14, 1995 in case number 08-94-00333-CV is withdrawn and the following substituted in its stead.
We are presented with two appeals arising out of the same incident. Originally, Appellant, Michelle J. Feldman ("Feldman"), sued Appellees, Electronic Warfare Associates ("EWA"), The Kohler Company ("Kohler"), Stant, Inc. ("Stant"), and L & M Radiator, Inc. ("L & M"), on various product liability theories, including strict liability, negligence, and breach of warranty. The district court granted summary judgment in favor of L & M on the affirmative defense of government contractor immunity under federal law. Feldman's claims against L & M were severed and Feldman appealed by three points of error attacking the summary judgement on legal and factual grounds. Subsequently, the trial court granted summary judgement in favor of EWA, Stant, and Kohler. Feldman also appealed these judgments, challenging the application of the government contractor defense to Feldman's defective design and failure to warn claims against EWA; and challenging the district court's decision that Feldman presented no factual issue as to her claims against Stant and Kohler, respectively. We join these cases for purposes of our opinion to facilitate the factual summary and the legal analysis. We affirm in part and reverse and remand in part.
SUMMARY OF THE EVIDENCE
Feldman worked as a mechanic for General Electric in El Paso, Texas. She was burned while working on an XM09S vehicle used for training United States Armed Forces and operated by General Electric. The XM09S simulates a Soviet anti-aircraft missile launcher and is utilized in "war games." Feldman's injuries occurred when the radiator cap blew off a supplemental radiator on an XM09S she was servicing. This radiator cap was never recovered. Presumably, the explosion was caused when pressure built up in the cooling system as a result of air locks that occasionally formed in the radiator hoses. Subsequent to this accident, release valves were installed on the cooling system to prevent this type of accident from recurring. Alleging products liability and negligence claims, Feldman sued Kohler, manufacturer of the XM09S's generator engine, EWA, who redesigned the cooling system for the vehicle under government contract, L & M, who designed and built the supplemental radiator, and Stant, manufacturer of the radiator cap.
The XM09S vehicle contained two engines; a Chrysler V-8 propelled the vehicle itself, while a Kohler four-cylinder engine powered the vehicle's weapons systems. Both engines were originally connected to one radiator for cooling. The original engine cooling configuration led to problems with overheating and EWA was retained to solve the overheating problem.
The record includes the deposition testimony of Feldman; Lawrence Davis, the EWA engineer tasked with solving the overheating problem; and Toby Brooks, a mechanical engineer with General Electric. We also have before us the affidavits of Richard Braun, executive vice-president of L & M; Alan J. Wilson, manager of sales administration for Kohler; John Blommel, director of marketing services for Stant; and Gary Smith, a professional engineer and expert witness for Feldman. The record reflects that Davis first recommended that the panels channeling airflow to the radiators be replaced, as they had apparently been removed by the operators. This proposal was rejected. Next, Davis proposed that an additional cooling fan and radiator be added in front of the Kohler engine, together with extra venting. This proposal was rejected because it changed the profile of the veh
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