SCOTT MYERS, Individually, and SCOTT MYERS, as Parent as Next Friend of SIERRA MYERS and BRENNAN MYERS, Minors, Plaintiffs-Appellants, vs. RELIANCE WATER HEATER COMPANY, RELIANCE WATER HEATER COMPANY, INC., RELIANCE STA KLEEN WATER HEATER COMPANY, RELIANCE STA KLEEN WATER HEATER COMPANY, INC., STATE INDUSTRIES, INC., A.H. SMITH CORPORATION, A.O. SMITH CORPORATION, INC., and/or UNKNOWN and UNNAMED MANUFACTURER OF THE CERTAIN STA KLEEN 502 WATER HEATER, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 7-712 / 07-0328
Filed December 12, 2007
SCOTT MYERS, Individually, and
SCOTT MYERS, as Parent as Next
Friend of SIERRA MYERS and
BRENNAN MYERS, Minors,
Plaintiffs-Appellants,
vs.
RELIANCE WATER HEATER COMPANY,
RELIANCE WATER HEATER COMPANY,
INC., RELIANCE STA KLEEN WATER
HEATER COMPANY, RELIANCE STA
KLEEN WATER HEATER COMPANY, INC.,
STATE INDUSTRIES, INC., A.H. SMITH
CORPORATION, A.O. SMITH
CORPORATION, INC., and/or UNKNOWN
and UNNAMED MANUFACTURER OF
THE CERTAIN STA KLEEN 502 WATER
HEATER,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Wright County, Kurt Wilke, Judge.
Plaintiff appeals from a district court summary judgment ruling dismissing
his product liability action against the manufacturer of a water heater as barred
by the statute of repose.
PROCEEDINGS.
REVERSED AND REMANDED FOR FURTHER
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Brett J. Beattie and Donald G. Beattie of Beattie Law Firm, P.C., Des
Moines, for appellants.
Joseph M. Barron of Peddicord, Wharton, Spencer, Hook, Barron, &
Wegman, L.L.P., Des Moines, and James A. Niquet and Travis J. Rhoades of
Drivello, Carlson & Mentkowski, Milwaukee, Wisconsin, for appellees.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
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ZIMMER, J.
Scott Myers, individually and as parent and next friend of Sierra and
Brennan Myers, appeals from a district court summary judgment ruling
dismissing his product liability action against defendants (collectively “State
Industries”) as barred by the statute of repose set forth in Iowa Code section
614.1(11) (2005). We reverse and remand for further proceedings.
I. Background Facts and Proceedings.
Myers was injured in a propane gas explosion that occurred in his home
on June 25, 2004.
He filed suit against State Industries on June 28, 2005,
asserting claims of negligence, breach of express and implied warranty, and
strict liability.
Myers alleged a Reliance Sta Kleen 502 water heater
manufactured by State Industries caused or contributed to the explosion.
The serial number affixed to the water heater was H90586488. The serial
number indicates the manufacture date of the water heater.
The month of
manufacture is designated by the first letter of the serial number, and the year of
manufacture is designated by the first two numbers.
State Industries moved for summary judgment, contending the claims
against it should be dismissed as barred by the fifteen-year statute of repose set
forth in section 614.1(11). State Industries argued the serial number prefix “H90”
means the water heater was manufactured in May 1990, while Myers argued the
prefix indicated the water heater was manufactured in August 1990. The district
court agreed with State Industries and found the undisputed facts established
that the water heater was manufactured in May 1990. The court accordingly
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granted the motion for summary judgment because Myers’s suit was brought
more than fifteen years after the date the water heater was manufactured.
Myers appeals. He claims the district court erred in granting summary
judgment in favor of State Industries because a genuine issue of material fact
exists as to the date the water heater was manufactured.
II. Scope and Standards of Review.
We review the district court’s summary judgment rulings for the correction
of errors at law. Iowa R. App. P. 6.4; Alliant Energy-Interstate Power & Light Co.
v. Duckett, 732 N.W.2d 869, 873 (Iowa 2007). Summary judgment is appropriate
when the pleadings, depositions, answers to interrogatories, admissions on file,
and affidavits show there is no genuine issue of material fact, and the moving
party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 1.981(3);
Walderbach v. Archdiocese of Dubuque, Inc., 730 N.W.2d 198, 199 (Iowa 2007).
A fact question arises if reasonable minds can differ on how the issue should be
resolved. Walderbach, 730 N.W.2d at 199. No fact question arises if the only
conflict concerns legal consequences flowing from undisputed facts. McNertney
v. Kahler, 710 N.W.2d 209, 210 (Iowa 2006).
The party moving for summary judgment has the burden to prove the facts
are undisputed. Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677
(Iowa 2004).
However, when a motion for summary judgment is made and
properly supported, the opposing party may not rest upon the mere allegations or
denials of his pleadings but must set forth specific facts showing the existence of
a genuine issue for trial. Iowa R. Civ. P. 1.981(5); Bitner v. Ottumwa Cmty. Sch.
5
Dist., 549 N.W.2d 295, 299 (Iowa 1996). The court views the facts in a light most
favorable to the nonmoving party. Walderbach, 730 N.W.2d at 199-200.
III. Discussion.
Iowa Code section 614.1(11) provides:
Improvements to real property. In addition to limitations contained
elsewhere in this section, an action arising out of the unsafe or
defective condition of an improvement to real property based on tort
and implied warranty . . . and founded on injury to property, real or
personal, or injury to the person or wrongful death, shall not be
brought more than fifteen years after the date on which occurred
the act or omission of the defendant alleged in the action to have
been the cause of the injury or death.
Our supreme court has characterized section 614.1(11) as a statute of repose,
“which closes the door after fifteen years on certain claims arising from
improvements to real property.” Krull v. Thermogas Co., 522 N.W.2d 607, 611
(Iowa 1994).
The fifteen-year period begins to run from the date the
improvement to real property was manufactured.
E. Iowa Propane, Ltd. v.
Honeywell, 652 N.W.2d 462, 464 (Iowa 2002).
The issue in this case concerns the month Myers’s water heater was
manufactured. State Industries argues the undisputed facts establish that the
water heater was manufactured in May 1990. We do not agree.
In support of its motion for summary judgment, State Industries offered the
affidavit and deposition of Donald J. McKeeby Jr. He has been employed by
State Industries as a claims manager since 1991. McKeeby stated that in the
1990s, the letters assigned to the month of manufacture correlated to the fiscal
year for State Industries. He explained State Industries’ serial number system
“started with A through M, skipping I, and A started with October” because the
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company’s fiscal year “ended at the end of September.” Thus, for example, the
prefix “A90” would indicate the water heater was manufactured in October 1989,
while “D90” meant the water heater was manufactured in January 1990. 1
McKeeby therefore concluded the “H90” prefix of the serial number for Myers’s
water heater established that it was manufactured in May 1990.
Steve Maxey, the national technical sales manager for State Industries,
has worked for the company in various positions since 1967. Maxey’s affidavit
submitted in support of the company’s motion for summary judgment stated from
1989 to 1995, he was the national product service manager for State Industries.
As such, he was “intimately familiar with the manufacturing process of all State
Industries, Inc. water heaters in 1990.”
He confirmed that in 1990, State
Industries “assigned serial numbers to its water heaters with the first letter
denoting the month of manufacture as follows: A = October . . . H = May . . . M =
September.” Thus, Maxey likewise concluded, “[T]he serial number on the data
plate of the subject State Industries, Inc. water heater, which begins ‘H90,’
means that the product was manufactured in . . . May, 1990.”
In resistance to the summary judgment motion, Myers offered the affidavit
of W.A. Bullerdiek, a “graduate Engineer who has been involved for many years
with propane safety.” 2 He has also served as a “principal investigator and/or
1
State Industries also submitted computer printouts as exhibits at McKeeby’s deposition.
One such printout shows a water heater with a serial number of “B95355638” was
manufactured on “11/10/94.”
2
Myers also offered a document purporting to be the affidavit of James Thrasher, a
licensed plumbing contractor in the state of Iowa, in addition to printouts from two
different websites and a portion of a study from the United States Department of Energy
in its resistance. State Industries argues Thrasher’s statement, website printouts, and
the Department of Energy study are deficient in various respects under our rules of civil
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consultant to State and Federal Agencies dealing with propane matters including
specifically water heaters and controls,” in addition to “decades of involvement in
propane litigation” and “litigation involving the water heaters manufactured by
State Industries.” Bullerdiek’s affidavit stated that “[i]t is the custom and standard
of the industry to use a calendar year” for its serial number system.
In his
experience with “serial numbers assigned to propane-fired appliances, this is the
first time” he has “ever learned that a manufacturer . . . has attempted to claim
that . . . its serial number system was based upon a fiscal year, as opposed to a
calendar year.” He also noted that “[a]lthough most manufacturers of liquefied
propane-fired appliances have produced written documentation to explain the
meaning of the serial numbers attached to their products,” State Industries
“denies having such documentation in this case.”
According to Bullerdiek, the control valve of Myers’s water heater was
manufactured between April 29 and May 5, 1990. State Industries does not
dispute this fact. Bullerdiek therefore concluded the manufacture of the water
heater itself was “most likely” not completed until “sometime between July 28,
1990 and August 3, 1990,” because the date of manufacture for water heaters is
“typically on the order of ninety (90) days from the date of manufacture of the
control valve that is included as a component of the end product.”
Maxey,
however, stated that in 1990, the “standard production process did not take State
Industries 90 days to complete” because the company “had its own fleet of trucks
procedure governing summary judgment. We need not address these arguments due to
our conclusion that Bullerdiek’s affidavit alone is sufficient to defeat summary judgment.
8
which it would regularly use to pick up control valves from its suppliers on an asneeded basis, usually weekly.”
Upon viewing the record in the light most favorable to Myers, we conclude
reasonable minds could differ as to the date the water heater was manufactured.
We reject State Industries’ argument that Bullerdiek’s affidavit is deficient
because he does not have “personal knowledge regarding the serial numbering
and manufacture process of State water heaters in the 1990s.” His conclusion
as to the date Myers’s water heater was manufactured is based upon his
considerable experience with “propane safety,” which has made him “very aware
of the standards, customs and practices of propane appliance manufacturers.”
He has “personally been involved in numerous cases involving issues concerning
how water heaters are manufactured, as well as the timing of the manufacture
and selling of water heaters.”
We likewise reject State Industries’ argument that Bullerdiek’s affidavit is
insufficient to defeat summary judgment because it is “based on conclusions”
and “generalities.” While it is true that Bullerdiek’s affidavit contains his opinion
as to the date the water heater was manufactured, “that is the nature of expert
testimony.” 3 Galloway v. Bankers Trust Co., 420 N.W.2d 437, 441 (Iowa 1988).
State Industries also contends Bullerdiek’s affidavit merely “attack[s] the
credibility of the sworn testimony of the State employees.” We agree with Myers
3
State Industries also argues Bullerdiek’s affidavit is “not admissible expert testimony.”
This argument was not presented to or decided by the district court. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”). We therefore need not and do not address this
argument on appeal.
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that credibility determinations are “peculiarly the responsibility of the fact finder to
assess,” and not the district court when ruling on a motion for summary
judgment. Smidt v. Porter, 695 N.W.2d 9, 22 (Iowa 2005).
We therefore conclude Bullerdiek’s affidavit sets forth a genuine issue of
material fact as to the date Myers’s water heater was manufactured. The district
court consequently erred in granting summary judgment in favor of State
Industries.
IV. Conclusion.
Based upon the foregoing, we conclude a genuine issue of material fact
exists as to the date the water heater was manufactured.
The district court
consequently erred in granting summary judgment in favor of State Industries.
We therefore reverse the judgment of the district court and remand for further
proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
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