Tabor vs. Metal Ware Corp., No. 05-4155 (10th Cir. 2007)
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FILED United States Court of Appeals Tenth Circuit October 18, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker FO R TH E TENTH CIRCUIT Clerk of Court TIM OTHY A. TABOR; DEBRA J. TABOR; FARM ERS INSURANCE GRO UP, Plaintiffs-Appellants, No. 05-4155 & 05-4156 (D.C. No. 2:99-CV-503-TC) (Utah) v. THE M ETAL WA RE CORPORATION, a W isconsin corporation, Defendant-Appellee, and NESCO AM ERICAN HARVEST, a M innesota corporation; N EWC O OF TW O RIVERS, a W isconsin corporation, Defendants. OR D ER AND JUDGM ENT * * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Before K ELL Y and TYM K O VICH , Circuit Judges, and EAGAN, ** District Judge. Appellants Timothy and Debra Tabor and Farmers Insurance Company appeal from an order entered M ay 20, 2005, granting appellee M etal W are Corporation summary judgment on products liability claims filed against American Harvest, a company whose assets M etal W are acquired in 1997. The district court concluded that 1) Utah law would not impose strict liability on successor corporations for defective products sold by the predecessor corporation, and 2) that Utah law would, however, recognize an independent post-sale duty to warn by successor corporations. The court held, as a matter of law, that the Tabors could not establish that M etal W are s failure to warn caused their damages. On M ay 26, 2006, we certified questions of state law to the Utah Supreme Court in this matter. On August 31, 2007, the court responded. See Tabor v. M etal Ware Corp., ___P.3d___, 585 Utah Adv. Rep. 23 (Utah 2007). W e have since received supplemental briefs from the parties addressing the impact of the Utah Supreme Court s decision. Upon consideration of the response to our certified questions and the briefs filed in response to our order dated September 12, 2007, we VACATE the district ** The Honorable Claire V. Eagan, Chief Judge, United States District Court for the Northern District of Oklahoma, sitting by designation. -2- court s order entered M ay 20, 2005 and the judgment entered that same day, and REM AND for additional proceedings consistent with the opinion of the Utah Supreme Court. W e make no comment on the outcome of those proceedings, and defer to the district court with respect to the appropriate scope of the proceedings. The mandate shall issue forthwith. Entered for the Court Timothy M . Tymkovich Circuit Judge -3-
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