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Simmons v. Mark Lift Industries10/24/2005
nts. The status and availability of other potential defendants is irrelevant in determining the issue of a successor corporation's liability in a product liability action. However, as noted in the answer to the first two certified questions, a plaintiff must fall within one of the four exceptions set forth in Brown.
We hold that each of the certified questions presented in this case may be answered in accordance with our opinion in Brown.
CERTIFIED QUESTIONS ANSWERED.
MOORE, J., Acting Justices John W. Kittredge and James R. Barber, concur. BURNETT, J., dissenting in a separate opinion.
JUSTICE BURNETT
Because I believe the mechanical application of the factors recited in Brown v. American Ry. Express Co., 128 S.C. 428, 123 S.E. 97 (1924) without considering the facts which may support a finding of a consolidation, merger or continuation of the predecessor entity result in an injustice to the consumer, I respectfully dissent, in part.
The facts set forth by the district court and the majority reveal that Plaintiff Simmons alleges he was injured by the collapse of an elevated scissorlift aerial work platform manufactured in 1990 by the predecessor corporation, Mark Industries, Inc. (Mark). Terex and its wholly owned subsidiary, Mark Lift Industries, Inc. (Lift Industries) purchased Mark's assets in bankruptcy in 1991. From December 1991 to September 1992, Terex continued to manufacture the same scissorlift platform as Mark had manufactured at the same California factory - using essentially the same technology, same design, same equipment, same marketing materials, same logo, same tradename, same supplier list, same dealer list, same customer list, and same employees. Terex then moved the factory to Iowa, where from 1992 to 2001 it continued to manufacture the same scissorlift as Mark had manufactured - still using essentially the same technology, same design, same equipment, same marketing, same logo, same tradename, same supplier list, same dealer list, same customer list, and a few of the same employees.
The federal district court has presented the Court with three questions, which I will address in the following order:
1. In the product liability context in South Carolina, what test is employed to determine whether there is successor liability of a company which purchased the assets of an unrelated company?
2. May a plaintiff maintain a product liability claim in South Carolina under a successor liability theory against a defendant which purchased only assets of a voluntarily bankrupt selling company in an arms-length and court-approved bankruptcy sale and the purchasing company did not approve of, participate in, cause, or contribute to the selling company's bankruptcy?
3. May a plaintiff maintain a product liability claim in South Carolina under a successor liability theory against a defendant when there are one or more other viable product liability defendants that may be liable to the plaintiff as a post-manufacturer seller of the allegedly defective product?
STANDARD OF REVIEW
In answering a certified question raising a novel question of law, this Court is free to decide the question based on its assessment of which answer and reasoning would best comport with the law and public policies of this state and the Court's sense of law, justice, and right. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000) (citing S.C. Const. art. V, §§ 5 and 9, S.C. Code Ann. § 14-3-320 and -330 (1976 & Supp. 2004), and S.C. Code Ann § 14-8-200 (Supp. 2004)); Osprey, Inc. v. Cabana Ltd. Partnership, 340 S.C. 367, 372, 532 S.E.2d
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