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BELL v. INDUSTRIAL VANGAS INC

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Court of Appeal, Second District, Division 5, California.

William BELL and Carol Bell, Cross-complainants and Appellants, v. INDUSTRIAL VANGAS, INC., Cross-defendant and Respondent.

Civ. 57470.

Decided: September 22, 1980

Myron S. Lapidus, Los Angeles, Angelo J. Manente, North Hollywood, Cadoo, Treatheway, McGinn & Morgan and Bernard S. Shoeps, Marina Del Ray, for cross-complainants and appellants. Vletas & Greer and Barry E. Shanley, Beverly Hills, for cross-defendant and respondent.

Appellant William Bell was a route salesman for respondent Industrial Vangas, Inc., and was injured in a fire which occurred on March 21, 1977, as he was engaged in his occupation of delivering gas to Long Chemical, Inc. He asserts a cause of action based upon strict products liability against respondent and other defendants, including Long Chemical, Inc., and Manchester Tanks, alleging in a general way that he was injured as a proximate result of defects in each of the following: tank trucks, storage tanks, valves, couplings, hoses, and other equipment and component parts used for the manufacture, transporting, storing, and distributing of flammable gas.

The trial court granted summary judgment in favor of respondent on the ground that appellant's exclusive remedy against respondent, his employer, is workers' compensation.

Appellant contends the trial court erred because there are at least triable issues of fact as to whether appellant has a cause of action under the dual capacity doctrine of Douglas v. E. & J. Gallo Winery, 69 Cal.App.3d 103, 137 Cal.Rptr. 797. In that case, the worker in the course of his employment for the defendant winery alleged he was injured by a defective scaffolding which the defendant manufactured, not only for the use of its employees but also for sale to the general public. Reversing the trial court's sustaining of a demurrer to the complaint, the appellate court held “that a plaintiff may state a cause of action (or causes of action) based on manufacturer's1 liability even though the defendant is also the plaintiff's employer and the alleged injuries take place in the course of employment, provided that the product involved is manufactured by the employer for sale to the public rather than being manufactured for the sole use of the employer.” (Id., at p. 107, 137 Cal.Rptr. at p. 799; emphasis in original.)

Respondent contends that its declaration in support of its motion for summary judgment shows that the conditions for liability under Douglas do not exist. The declaration of Ron Paliughi, respondent's vice president of operations and planning, stated that respondent “did not manufacture any products or items of equipment which were present on the premises of LONG CHEMICAL, INC. at the time of the alleged accident and which were allegedly involved in the alleged accident” except for the propane bulk delivery truck, of which appellant was the driver and the operator. That truck was “assembled” by respondent “using a 1969 Chevrolet truck chassis manufactured by General Motors Corporation, on which was fabricated a delivery system, skirting, metering, and other component parts to adapt the truck for the specific use of INDUSTRIAL VANGAS, INC. in its propane dispensing operations.” The declaration further stated that with limited exceptions all of respondent's fleet of trucks were assembled exclusively for respondent's own use in propane dispensing operations. The exceptions were: out of approximately 200 bulk delivery trucks assembled since the model year 1969, respondent sold 4 exclusively to other propane dealers primarily as a customer service to companies with whom respondent does regular business in the wholesale dispensing of propane. In addition, eight 1969 model trucks had been withdrawn from service, dismantled, and then the vehicle chassis sold. Respondent argued the declaration shows that its sales of trucks were isolated and that respondent's manufacturing of its trucks was clearly primarily for the purpose of its own use and not for sale to the public. (Douglas v. E. & J. Gallo Winery, supra, 69 Cal.App.3d at p. 113, 137 Cal.Rptr. 797; see also Williams v. State Compensation Ins. Fund, 50 Cal.App.3d 116, 121, 123 Cal.Rptr. 812; Shook v. Jacuzzi, 59 Cal.App.3d 978, 981, 129 Cal.Rptr. 496.)

No counterdeclarations were submitted by appellant below. In a memorandum of points and authorities to the trial court, appellant argued that respondent's declaration revealed sufficient sales to the public to invoke the Douglas doctrine.

We hold respondent's declaration was insufficient to justify the granting of summary judgment. A defendant moving for summary judgment has the burden of showing that plaintiff's action has no merit, i. e., of negating every element of the plaintiff's case as indicated by the pleadings. (See Barnes v. Blue Haven Pools, 1 Cal.App.3d 123, 127, 81 Cal.Rptr. 444; Fuller v. Goodyear Tire & Rubber Co., 7 Cal.App.3d 690, 693, 86 Cal.Rptr. 705; Pearl v. Shore, 17 Cal.App.3d 608, 613, 95 Cal.Rptr. 157; Southern Cal. etc. Assemblies of God v. Shepherd of Hills, etc. Church, 77 Cal.App.3d 951, 956-957, 144 Cal.Rptr. 46.)

Respondent's declaration focused upon its trucks. The subjects of the complaint, however, were “tank trucks, storage tanks, valves, couplings, hoses and other equipment, together with the component parts thereof, used for the storage, transportation, transfer, manufacture, preparation, sale, lease, and use of flammable gas. . . .” The declaration stated that respondent “did not manufacture” the other products; however, the complaint alleged that respondent and other defendants “were engaged in the business of designing, manufacturing, purchasing, producing, constructing, assembling, processing, preparing, testing, inspecting, maintaining, repairing, installing, endorsing, selling, leasing, bailing, licensing the use of, and otherwise marketing” the products.

Strict liability for a defective product is not limited to the manufacturer of the product but extends to anyone involved in the business of placing the product on the market. (See Price v. Shell Oil Co., 2 Cal.3d 245, 251-254, 85 Cal.Rptr. 178, 466 P.2d 722.) In denying that respondent “manufactured” the other items, the declaration was insufficient to negate the other activities which carry liability. (See Fuller v. Goodyear Tire & Rubber Co., supra, 7 Cal.App.3d at p. 693, 86 Cal.Rptr. 705.) Respondent argues that since the declaration was submitted together with a memorandum of points and authorities discussing Douglas v. E. & J. Gallo Winery, supra, 69 Cal.App.3d 103, 137 Cal.Rptr. 797, it should be assumed the declarant was using the term “manufacture” in the same sense as the Douglas case. (Id., at p. 107, 137 Cal.Rptr. 797, see fn. 1, ante.) We find this construction of the declaration unreasonable, particularly in light of the rule that on motion for summary judgment the affidavits of the moving party are to be strictly construed. (Albertini v. Schaefer, 97 Cal.App.3d 822, 831, 159 Cal.Rptr. 98.)2

Respondent argues that Douglas v. E. & J. Gallo Winery, supra, is wrong and should not be followed. However, it was cited with apparent approval by the California Supreme Court in Johns-Manville Products Corp. v. Superior Court, 27 Cal.3d 465, 473, fn. 8, 476, fn. 10, 165 Cal.Rptr. 858, 612 P.2d 948, and D'Angona v. County of Los Angeles, 27 Cal.3d 661, 665-666, 166 Cal.Rptr. 177, 613 P.2d 238.

In Shook v. Jacuzzi, supra, 59 Cal.App.3d 978, 981, 129 Cal.Rptr. 496, 498, the employer manufactured the machine solely for use in its own plant and not for placing it in the stream of commerce, and thus the rationale of Douglas3 did not apply. However, either as dictum or as an alternative holding, the court stated: “Even if (products) liability existed, its separate assertion is barred by appellants' resort to and recovery under the Workers' Compensation Act.” The court did not discuss that proposition nor cite any authority for it.

In the instant case it is conceded that appellant has pursued his worker's compensation remedy to final judgment. The question arises whether this now bars the products liability action. We conclude that it does not.

This is not like a case where the issue is whether the injury did, or did not, occur in the course of employment, where the pursuit of the workers' compensation remedy to final judgment would result in a factual determination necessarily inconsistent with a tort recovery. Under the dual capacity doctrine, the employer in its second capacity is treated like a “ ‘ ”person other than the employer.“ ‘ ” (Duprey v. Shane, 39 Cal.2d 781, 790, 249 P.2d 8.) Recovery of one remedy is not necessarily inconsistent with recovery of the other. (Magliulo v. Superior Court, 47 Cal.App.3d 760, 780, 121 Cal.Rptr. 621.) In such circumstances the remedies should be considered cumulative rather than alternative. (Id.; see also Unruh v. Truck Insurance Exchange, 7 Cal.3d 616, 636-637, 102 Cal.Rptr. 815, 498 P.2d 1063; Duprey v. Shane, supra, 39 Cal.2d at p. 789, 249 P.2d 8.) If appellant succeeds in the instant suit, the court can require a setoff to prevent a double recovery. (Unruh v. Truck Insurance Exchange, supra, 7 Cal.3d at p. 636, 102 Cal.Rptr. 815, 498 P.2d 1063; Johns-Manville Products Corp. v. Superior Court, supra, 27 Cal.3d at pp. 478-479, 165 Cal.Rptr. 858, 612 P.2d 948; D'Angona v. County of Los Angeles, supra, 27 Cal.3d at pp. 668-669, 166 Cal.Rptr. 177, 613 P.2d 238.)

The judgment is reversed.

FOOTNOTES

1.  For purposes of its opinion, the Douglas court defined “manufacture” to include “manufacturer, seller, distributor or any other person who may be subject to products liability.” (Id.)

2.  Appellant offers to produce additional evidence on appeal to show that respondent leased the storage tanks to its customers for a monthly rental. It is unnecessary to consider such evidence since respondent's moving papers failed to negate such implication.

3.  Shook antedated Douglas.

ASHBY, Associate Justice.

STEPHENS, Acting P. J., and HASTINGS, J., concur.

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