April 4, 2013
Utah Court of Appeals Cases
Assmann v. Department of Public Safety, 2013 UT App. 81, No. 20120270‐CA
(April 4, 2013)
Affirming
Judge Robert Adkins,
Per
Curiam,
Shane Assmann appeals the district court’s decision following a trial de
novo affirming the administrative revocation of his driver license for a period
of thirty six months. We affirm.
At ¶
1.
The Court reviews the evidence presented in
the trial de novo and finds that there was substantial evidence to support the
trial court’s determination that a police officer had given Assmann the
required admonitions that refusal to submit to a chemical breath analysis would
result in revocation of his driver’s license and that Assmann still refused to
take the test. The Court also reviews an
evidentiary challenge based on the best evidence rule and finds that Assmann
did not preserve the argument because he failed to object during the trial, and
even if the evidence was suppressed there would still be sufficient evidence to
support the court’s factual findings.
Cagatay v. Erturk, 2013 UT App 82, No. 20120189‐CA
9April 4, 2013)
Affiriming
in part and reversing in part Judge Andrew Stone.
Judge
Voros,
Nilufer Cagatay (Wife) challenges several aspects of the Decree of
Divorce entered by the trial court. We affirm in part and reverse and remand in
part.
At ¶ 1.
Wife challenges the trial court’s award of
joint custody and its finding that both parents participated in raising the
child before the divorce. The Court
finds that Wife has not marshaled the evidence and it cannot, therefore, review
the finding because Wife cannot show that the decision was clearly erroneous.
At ¶¶ 2-3.
Wife challenges the trial court’s reliance
on a custody evaluator’s report when that evaluator did not testify. The Court finds that the trial court did not
rely exclusively on the report and “our case law states that trial
courts may rely on custody evaluations in making custody determinations, even
when the evaluator does not testify. See Merriam v. Merriam, 799 P.2d
1172, 1175–76 (Utah Ct. App. 1990).
At ¶¶
4-5.
Wife challenges the trial court’s valuation
of an apartment in Istambul and its refusal to grant a new trial based on
additional evidence discovered concerning the apartment. The Court admonishes Wife for failing to
mention that the trial court explicitly excluded some of the evidence as a
discovery sanction and determines that it cannot question the trial court’s
finding.
At ¶ 6-8.
Wife next contends that the trial court erred in calculating her income
for purposes of child support. The court ordered Husband to pay $13.05 per
month in child support. Wife asserts that the court attributed the net rent
from an apartment in New York City
to Wife’s income for purposes of calculating child support but awarded the
apartment to Husband. Husband responds that the trial court did not in fact
attribute the rental income to Wife. Our own review of the record indicates
that Wife is correct on this point.
At ¶
9.
The Court directs
the trial court to reconsider its alimony decree in light of its mistake
allocating rental income to wife.
At ¶ 10.
Gullickson v. Gullickson, 2013 UT App 83, No. 20110700‐CA
(April 4, 2013)
Affirming
in part and reversing in part Judge John Kennedy,
JUDGE
STEPHEN L. ROTH authored this Opinion, in which JUDGE MICHELE M. CHRISTIANSEN
concurred. JUDGE JAMES Z. DAVIS dissented in part and concurred in part, with
opinion.
Judge
Roth,
Jeffrey M. Gullickson (Husband) appeals from the district court’s order
on a petition to modify the divorce decree and a petition for temporary order
filed by Catherine N. Gullickson (Wife). Specifically, Husband contends that,
without an evidentiary hearing, the district court improperly modified the
divorce decree’s distribution of the home in which the parties had resided
during the marriage; overruled his objection to Wife’s plan to move out of
state with the parties’ minor child, and the corresponding adjustment to his
parent‐time, without a
showing of immediate and irreparable harm as required by Utah Rule of Civil
Procedure 106; denied him an evidentiary hearing on these issues; and refused
to consider his contempt claim. He also seeks his attorney fees incurred in the
home modification proceedings. We vacate the court’s order regarding the home
and remand for a modification hearing. On remand, the court should reconsider
the award of attorney fees as appropriate following the modification hearing. Otherwise,
we affirm the district court.
At ¶
1.
The
Court summaries the proceedings and determinations of the Commissioner and
district court.
At ¶¶
2-13.
Husband first contends that the shift in responsibility for the mortgage
payments and upkeep of the house constituted a modification of the divorce
decree that cannot be made under the limited temporary order authority granted
to the court by rule 106(b) of the Utah Rules of Civil Procedure but instead
may only be made following an evidentiary hearing, essentially a trial.
At ¶
15.
Husband next appeals from the district court’s order allowing Wife to
move with the son to Virginia on the basis that the decision was made without a
showing of immediate and irreparable harm and without allowing Husband an
evidentiary hearing at which Husband could have demonstrated that there would
be no such harm and that the move was not in the son’s best interest. Husband’s
argument is rooted in rule 106 of the Utah Rules of Civil Procedure. Wife
asserts that relocation of a minor child is governed by Utah Code section 30‐3‐37.
At ¶
16.
Finally, Husband argues that the district court improperly declined to
consider the contempt issue.
At ¶
17.
Rule 106 of the Utah Rules of Civil Procedure provides that “proceedings
to modify a divorce decree . . . shall be commenced by filing a petition to
modify.” Utah
R. Civ. P. 106(a). “[A] party requesting that a divorce decree be modified must
demonstrate that there has been a substantial change of circumstances occurring
since the entry of the decree and not contemplated in the decree itself.” Whitehouse,
790 P.2d at 61 (citation and internal quotation marks omitted). With regard to
a divorce decree’s division of the parties’ property, we have noted that courts
should modify such provisions “with great reluctance” and “only upon a showing
of compelling reasons arising from a substantial and material change in
circumstances.” Id.
(emphasis, citation, and internal quotation marks omitted).
At ¶
21.
[W]hether Wife should be permitted to rent the home to defray the
mortgage expense when she is not occupying it or whether Husband’s options,
exercisable under the decree only at the end of the five‐year period, ought to be changed or accelerated
are questions that must be resolved at an evidentiary hearing typical of
modification proceedings and seem to require something more rigorous than the simple
contract interpretation approach employed here.
At ¶
23.
[U]nder rule 106, which was the rule relied on by the parties, the court
cannot modify the real property division prior to an evidentiary hearing unless
there are no material facts at issue, which does not appear to be the case
here. See generally id. R. 106(b)(1)(B) (explaining that the court may
temporarily modify child support, custody, or parent‐time during the pendency of a modification
proceeding to address “an immediate and irreparable harm” but carving out no
such exception for property distribution)
At ¶
24.
[R]ule 106 applies only if one party is seeking to modify the existing
custody or parent‐time
provisions of a decree. Permanent orders addressing the relocation of one
parent, on the other hand, are governed by the Relocation Statute. The
Relocation Statute defines relocation as “moving 150 miles or more from the
residence specified in the court’s decree.” Utah Code Ann. § 30‐3‐37(1) . . . Because Husband’s briefing focuses
on the propriety of the court’s order under rule 106, not the Relocation
Statute, he has failed to adequately challenge the basis of the court’s
decision. . . . In particular, he has failed to demonstrate that there was any
error in the court’s best interest evaluation and subsequent order under the
Relocation Statute
At ¶¶
27-29.
Thus, while we recognize that ordinarily an evidentiary hearing is the
preferred mechanism for resolving disputes about the best interest of a child, see,
e.g., Montano v. Third
Dist. Court for Cnty. of Salt Lake, 934 P.2d
1156, 1157 (Utah Ct. App. 1997), under the particular circumstances of this
case, Husband has failed to persuade us that the district court abused its
discretion by declining to hear witness testimony on the relocation issue for
the first time at the objection hearing.
At ¶
35.
{a}commissioner is generally required either to consider an issue and make
a recommendation to the district court as to how it should be resolved or to
certify the issue directly to the court for resolution.
Here, the commissioner neither ruled on the issue of Wife’s alleged
contempt nor certified it to the court for resolution but reserved his decision
without explaining the reasons for doing so. It is certainly within the
discretion of a judge or commissioner to postpone the decision on an issue when
it is reasonable to do so, for example where the best decision requires
additional evidence or resolution reasonably depends on yet unresolved or
developing circumstances. . . . Such discretion is necessary to informed and
effective judicial decision‐making
at both the commissioner and the district court levels. District courts likewise
have discretion to consider issues upon which a commissioner’s decision has
previously been reserved in order to expeditiously move cases through the court
system. . . . But while a district court has the discretion to consider
an issue that has not been certified, Husband has provided us with no authority
for the proposition that a court is required to do so.
Instead, if Husband believed that the commissioner had no reasonable
basis for reserving decision on the contempt issue, then his remedy was to ask
the judge to order the commissioner to make a recommendation on contempt, to
certify the issue to the district court, or to explain why reserving decision
was appropriate. Husband could request, but not demand, that the court consider
the issue in the first instance. We therefore affirm the court’s decision to
decline to consider the non‐certified
issue of contempt.
At ¶¶ 38-40.
Judge Davis,
dissenting in part
Although the district courts “have broad discretion in managing the cases
before them,” A.K. & R. Whipple Plumbing & Heating v. Aspen Constr.,
1999 UT App 87, ¶ 11, 977 P.2d 518, I believe it was nonetheless inappropriate
for the district court here to refuse Husband an evidentiary hearing on
preservation grounds. . . .
. . . Regardless of whether it is
appropriate or desirable to first present evidence to a commissioner, applying
the preservation rule to the proceedings before a domestic relations
commissioner impermissibly expands the function of the court commissioner
system by barring litigants access to the court regardless of the merits of
their cases.
Coincidentally, imposition of a preservation requirement in proceedings
before the commissioner may negatively impact the system by requiring litigants
to present every scrap of evidence to the commissioner or risk having that
evidence rejected by a judge. Because “[t]he people have a right to have their
cases and controversies ultimately decided by . . . judges who have been vested
with judicial power by the constitution,” and “[a]nything less is a clear
violation of the Utah constitution and Utah law,” Holm, 840 P.2d at 168,
I respectfully dissent from Section II of the majority opinion and would, on
remand, direct the district court to hear Husband’s evidence regarding the best
interest issue.
At ¶¶ 44-46.
Donnelly v. Donnelly, 2013 UT App 84, No. 20100764‐CA
(April 4, 2013)
Affirming
Judge Bruce Lubeck and Judge Keith Kelly
JUDGE WILLIAM A.
THORNE JR.
authored this Opinion, in which J. FREDERIC VOROS concurred.
JUDGE GREGORY K.
ORME concurred, with opinion.
Judge
Thorne,
Michael Donnelly (Husband) appeals from
the district court’s Decree of Divorce, challenging the district court’s
temporary and permanent alimony awards and its orders pertaining to
reimbursement of travel expenses and medical insurance premiums. Stacy Donnelly
(Wife) cross‐appeals,
challenging the district court’s decision to value Husband’s retirement plan as
of the date of the parties’ separation rather than the date of divorce. We
affirm.
At ¶
1.
This is a very fact sensitive analysis of
the trial court’s alimony award, the lack of an award for travel expenses
caused by wife’s relocation, payment of medical insurance premiums, and
valuation of husband’s retirement plan.
Alimony
The Court refuses to address many of
Husband’s arguments regarding the various alimony awards because the issues
were not preserved below.
At ¶¶ 14-22.
The Court review the issues concerning the
district court’s alimony determination and finds that the district court’s
factual determinations were not an abuse of discretion.
At ¶¶ 23-29.
Travel
Expenses
Husband next argues that the district court erred when it refused to
order Wife to reimburse him for portions of the children’s travel expenses
pursuant to Utah’s
relocation statute, Utah Code section 30‐3‐37. Husband argues that the
district court misinterpreted the relocation statute to preclude reimbursement
of travel expenses where, as here, the noncustodial parent is not current on
all support obligations but has not been found in contempt. Husband further
argues that the district court’s denial of travel expense reimbursement was
inequitable and represented an abuse of the court’s discretion.
At ¶
30.
We disagree with Husband’s interpretation of section 30‐3‐ 37(11). Section 30‐3‐37(11)
requires a reimbursement order in only one circumstance, that of a noncustodial
parent who is current on support payments. By
implication, the statute imposes no requirement that a noncustodial parent who
is not current on support be awarded reimbursement.
At ¶ 32.
The Court rejects Husbands argument that the
district court’s denial of travel expenses was an inequitable and an abuse of
discretion because all of the relevant arguments were not argued at the trial
court level.
At ¶¶ 35-36.
Medical
Insurance
It is readily apparent that both the parties and the court had strived
mightily to accomplish a comprehensive resolution of the parties’ disputes over
financial matters and reimbursement of medical expenses prior to the issuance
of the Decree of Divorce. Husband’s failure to raise the issue at some point
before the conclusion of that lengthy process acted as a waiver of any
statutory right that he may have had to have Wife equally share the costs of
the children’s medical insurance.
At ¶
40.
Retirement
Plan
“[A]s a general rule, the marital estate is valued at the time of the
divorce decree,” Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct. App.
1993); see also Berger v. Berger, 713 P.2d 695, 697 (Utah 1985), and
that “any deviation from the general rule must be supported by sufficiently
detailed findings of fact that explain the trial court’s basis for such
deviation,” Rappleye, 855 P.2d at 262. Here, however, the district court
did explain its variation from the general rule, and Wife has not persuaded us
that the district court’s explanation was inadequate.
At ¶
41.
Judge
Orme, concurring
I concur in the court’s opinion, with one reservation. Wife’s claimed
expenses for the parties’ youngest child, such as for “special foods” and “lots
of therapy,” are not relevant in calculating alimony; they are factors to be
considered in fixing child support.
At
¶49.
State v. Loeffel, 2013 UT App 88, No. 20120108‐CA
(April 4, 2013)
Affirming
Judge G. Rand Beacham
Judge
Orme,
Defendant Michael Dennis Loeffel appeals his conviction for three counts
of aggravated assault, a third degree felony. See Utah Code Ann. § 76‐5‐103
(LexisNexis 2008). We affirm.
At ¶
1.
At the close of evidence at trial, the court instructed the jury on the
elements of aggravated assault and included an instruction on a reckless mental
state. Defendant objected to the
instruction, arguing that recklessness was insufficient to satisfy the
offense’s mens rea requirement. The court overruled the objection and allowed
the instruction. Defendant was ultimately convicted. He now appeals.
At ¶
6.
Defendant also contends that even if aggravated assault can be committed
recklessly, the State presented insufficient evidence to support his
conviction.
At ¶
7.
A person is guilty of aggravated assault if that person commits an
assault under Utah Code section 76‐5‐102 and, inter alia, uses a
dangerous weapon as defined in Utah Code section 76‐ 1‐601(5).
See id. § 76‐5‐103(1)(b). For purposes of
this appeal, an assault under section 76‐5‐102 is either “(a) an
attempt, with unlawful force or violence, to do bodily injury to another ”; or
“(b) a threat, accompanied by a show of immediate force or violence, to do
bodily injury to another.”5 Id.
§ 76‐5‐102(1)(a), (b). Under our
criminal code, every offense not involving strict liability requires a
prescribed culpable mental state. See id. § 76‐2‐102.
However, if the definition of an offense “does not specify a culpable mental
state and the offense does not involve strict liability, [then] intent,
knowledge, or recklessness shall suffice to establish criminal responsibility.”
Id.
Nothing in the text of either assault provision explicitly prescribes a
culpable mental state. See id. §§ 76‐5‐102, ‐103. Therefore, our statutory framework
prescribes that section 76‐2‐102 controls and that the
mens rea requirement defaults to “intent, knowledge, or recklessness.” See
id. § 76‐2‐102.
At ¶¶
9-10.
We conclude that the State put on more than enough evidence to allow a
reasonable jury to convict Defendant.
At ¶
12.
Riggs v. Asbestos Corporation, 2013 UT App 86, No. 20110544‐CA
(April 4, 2013)
Affirming
Judge Glen Iwasaki
Judge
Davis,
Micah Riggs, on behalf of his mother‐in‐law, the decedent Vickie
Warren, appeals the trial court’s decision that the Comparative Negligence Act
(CNA), and therefore joint and several liability, did not apply in this case.
Defendant Union Carbide Corporation cross‐appeals,
arguing that its motion for judgment notwithstanding the verdict was wrongly
denied because the raw material supplier rule shields Union Carbide from
liability under the facts of this case. Alternatively, Union Carbide argues in
its cross‐appeal that
there was insufficient evidence to support the jury’s verdict that the unique
type of asbestos it supplied medically caused Warren’s illness. Defendant Georgia–Pacific,
LLP also crossappeals, challenging the sufficiency of the evidence identifying
a particular Georgia–Pacific product at the various construction sites where Warren was exposed to
asbestos. We affirm.
At ¶
1.
Plaintiff’s Comparative Negligence
Argument
[D]uring a pretrial conference with all of the parties, Warren argued for
the first time that the CNA, rather than the Liability Reform Act (LRA) that
the parties had been proceeding under for the entire three years since the
filing of the case, ought to apply because it was in effect at the time of
Warren’s exposure to Defendants’ asbestos and asbestos‐containing products. The trial court rejected Warren’s argument, determining that the LRA applies both
because Warren
did not have a cause of action until she was diagnosed with mesothelioma and
because her argument was untimely.
At ¶
4.
“The general rule is that the law establishing substantive rights and
liabilities when a cause of action arises, and not a subsequently enacted
statute, governs the resolution of the dispute.” Carlucci v. Utah State
Indus. Comm’n, 725 P.2d 1335, 1336 (Utah
1986). Likewise, “[t]he courts of this state operate under a statutory bar
against the retroactive application of newly codified laws,” unless the newly
enacted statute indicates that it is to be retroactive, State v. Clark,
2011 UT 23, ¶ 11, 251 P.3d 829; see also Utah Code Ann. § 68‐3‐3 (LexisNexis 2011) (“A provision of the Utah
Code is not retroactive, unless the provision is expressly declared to be
retroactive.”), or the “statutory amendments are procedural, rather than
substantive,” State v. Burgess, 870 P.2d 276, 280 n.6 (Utah Ct. App.
1994). The issue before us is not one of statutory interpretation, as Warren asserts, but a question of when Warren’s claim arose.
At ¶
13.
“A tort cause of action accrues when it becomes remediable in the courts,
that is, when all elements of a cause of action come into being.” Davidson
Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990); cf.
Sevy v. Security Title Co. of S. Utah, 902 P.2d 629, 634 (Utah 1995) (“The
general rule regarding statutes of limitations is that the limitation period
begins to run when the last event necessary to complete the cause of action
occurs.”). In other words, “the law does not recognize an inchoate wrong, and .
. . until there is actual loss or damage resulting to the interests of another,
a claim for negligence is not actionable.” Seale v. Gowans, 923 P.2d
1361, 1364 (Utah
1996) (citation and internal quotation marks omitted). The injury necessary to
pursue any tort action must be a “legal injury” in that there needs to be a
remediable injury and “the injury [must have been] caused by negligent action.”
Id.
at 1363 (citation and internal quotation marks omitted). Accordingly, “even
though there exists a possibility, even a probability, of future harm, it is
not enough to sustain a claim, and a plaintiff must wait until some harm
manifests itself.” Id.
at 1364–65 (holding “that damages in the form of an enhanced risk” are
insufficient to sustain a cause of action); see also Johnson v. Mullee,
385 So. 2d 1038, 1040 (Fla. Dist. Ct. App. 1980) (holding that a patient’s
malpractice cause of action did not accrue “when the patient first learned of
the misdiagnosis, [because] there was no evidence that the alleged negligence
‘had resulted in any harm toher’” and treatment for her cancer could still be
successful despite the misdiagnosis, leaving her where she would have been if
the misdiagnosis did not occur and the cancer had been detected during the
previous year’s mammogram (cited by Seale, 923 P.2d at 1365)).
Here, Warren
argues that her claim accrued “long before” the LRA became effective because
her “initial injury” was the cell damage and scarring that resulted from
inhaling Defendants’ asbestos. We disagree. Regardless of whether the
replication of those damaged cells over time produced Warren’s cancer, see infra ¶¶ 27‐28, she nonetheless did not
have an actionable claim until she was diagnosed with mesothelioma. Until then,
Warren’s
development of mesothelioma was only a possibility in light of her exposure to
asbestos. . . . Accordingly, because Warren’s
cause of action did not accrue until her diagnosis in July 2007, long after the
repeal of the CNA and enactment of the LRA, we affirm the trial court’s
application of the LRA.
At ¶¶ 14-15.
Union
Carbide’s Raw Material Supplier Rule Argument
Union Carbide [argues that it] . . . could not be held liable for Warren’s illness because
it is a bulk supplier of raw materials, as described in the Third Restatement
of Torts. See Restatement (Third) of Torts: Products Liability § 5 &
cmt. c (1998). The trial court had rejected this argument . . . summary
judgment, reasoning that “Utah has not considered the issue of adopting the
Restatement (Third) of Torts: Products Liability § 5 and, indeed, recent Utah
case law supports the conclusion that with respect to the specific provision at
issue . . . , the Restatement (Second) of Torts should act as the guide,” and
the court ultimately declined to walk through the application of either
restatement because doing so involved disputed issues of material fact.
At ¶
7.
Two days after the jury reached its verdict in this case, our supreme
court, in Gudmundson v. Del Ozone, 2010 UT 33, 232 P.3d 1059, adopted
the rule in the Third Restatement of Torts on which Union Carbide now relies. See id. ¶¶ 55–56. Gudmundson adopted
the rule as follows:
“One engaged in the business of selling or otherwise distributing product
components who sells or distributes a component is subject to liability for
harm to persons or property caused by a product into which the component is
integrated if:
. . .
(b)(1) the seller or distributor of the component substantially
participates in the integration of the component into the design of the
product; and
(2) the integration of the component causes the product to be defective,
as defined in [the Restatement]; and
(3) the defect in the product causes the harm.”
Id.
¶ 55 (quoting Restatement (Third) of Torts: Products Liability § 5 (1998));
see also id. ¶ 55 n.14 (declining to adopt subsection (a) of the
Restatement provision at issue because “it only addresses situations in which
the component part itself is defective” and those situations are already
“adequately addressed in our case law”). The supreme court explained that this
new rule “embraces the policy‐based
rationale that although manufacturers of nondefective component parts at the
time of sale should not bear the risk of ensuring the integrated product’s
safety, a component manufacturer who participates in the design of the product
should bear some liability risk.” Id.
¶ 56; accord Restatement (Third) of Torts: Products Liability § 5
cmt. a.
The rule defines “[p]roduct components” as “raw materials, bulk products,
and other constituent products sold for integration into other products.”
Restatement (Third) of Torts: Products Liability § 5 cmt. a. Liability for a
nondefective product under the rule “requires two findings. First, the
participation [by the component supplier in integrating the component into the
final product] must be substantial. Second, the integration of the nondefective
component must cause the integrated product to be defective.” Gudmundson, 2010
UT 33, ¶ 57. The first requirement “ensures that ‘[m]ere suppliers [will not
be] expected to guarantee the safety of other manufacturers’ [products],’” id.
¶ 59 (first alteration in original) (quoting Crossfield v. Quality
Control Equip. Co., 1 F.3d 701, 704 (8th Cir. 1993)), and also “prevents
the imposition [on uninvolved component parts suppliers] of a duty to ‘foresee
all the dangers that may result from the use of a final product which contains
its component part or materials,’” id. ¶ 58 (quoting Bond v. E.I. Du
Pont De Nemours & Co., 868 P.2d 1114, 1119 (Colo. Ct. App. 1993)). See
House v. Armour of Am., Inc., 886 P.2d 542, 553 (Utah Ct. App. 1994)
(“‘[I]f the component part manufacturer does not take part in the design or
assembly of the final system or product, he is not liable for defects in the
final product if the component part itself is not defective.’” (quoting Koonce
v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 715 (5th Cir. 1986))),
aff’d, 929 P.2d 340 (Utah 1996); accord Buonanno v. ColmarBelting
Co., Inc., 733 A.2d 712, 719 (R.I. 1999).
At ¶¶
18-19.
The Court holds that raw materials cannot be defective; accordingly “the question
boils down to whether Calidria was defective based on the adequacy of the
warnings provided.”
At ¶¶
20-22.
Which individuals Union Carbide owed a duty to warn, and whether its
warnings to Georgia–Pacific satisfied that duty, are questions that were not
addressed or developed at trial in such a way as to permit our review,
especially under the constraints of the JNOV framework. . . .
. . . Thus, we find ourselves in the peculiar procedural position of
reviewing a denial of a judgment notwithstanding the jury’s verdict, when the
issue at hand, while persuasive at an abstract level, was not presented to the
jury and therefore not a part of its verdict. Because we are constrained by the
JNOV standard, we must affirm the trial court’s determination. Thus, Union
Carbide has demonstrated that the bulk supplier rule generally applies in cases
like this one but has failed to show that the evidence before the jury requires
a conclusion, as a matter of law, that it had fulfilled whatever duty to warn
it had under the circumstances, even if that duty extended only to
Georgia–Pacific and not to Warren.
At ¶¶
23-24.
Union
Carbide’s Causation Argument & Georgia-Pacific’s Sufficiency of the
Evidence Argument
Georgia–Pacific also cross‐appeals,
arguing that its directed verdict motion was wrongly denied because the jury’s
verdict was not supported by sufficient evidence as to the identification of
its tape joint compound at any of the locations where Warren was exposed to
asbestos‐containing
tape joint compound.
At ¶
11.
The
Court reviews the evidence and finds that there was sufficient evidence to
support the jury’s verdicts.
At ¶¶
26-35.
