Oswalt v. RESOLUTE INDUSTRIES, INC.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CURTIS OSWALT; FEDERAL 

INSURANCE COMPANY,

Plaintiffs-Appellees,

v. No. 10-35313

RESOLUTE INDUSTRIES, INC.,

Defendant-third-party-plaintiff-  D.C. No.

2:08-cv-01600-MJP

Appellant, OPINION

v.

WEBASTO PRODUCTS NA, INC.,

Third-party-defendant-Appellee.



Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

January 12, 2011—Seattle, Washington

Filed June 16, 2011

Before: Susan P. Graber, Raymond C. Fisher and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Fisher

8189

8192 OSWALT v. RESOLUTE INDUSTRIES

COUNSEL

Dennis Moran (argued) and William A. Keller, Moran

Windes & Wong, PLLC, Seattle, Washington, for the

defendant-third-party-plaintiff-appellant.

Anthony J. Gaspich (argued) and Russell R. Williams,

Gaspich & Williams PLLC, Seattle, Washington, for the

plaintiffs-appellees.

OSWALT v. RESOLUTE INDUSTRIES 8193

Troy D. Greenfield, Deborah L. Carstens, Erica A. Krikorian

and Jerret E. Sale (argued), Bullivant Houser Bailey PC, Seat-

tle, Washington, for third-party-defendant-appellee.

OPINION

FISHER, Circuit Judge:

In this admiralty case, Resolute Industries, Inc., appeals an

adverse summary judgment on its products liability claims

against Webasto Products NA, Inc., the manufacturer of a

heater that caught fire on Curtis Oswalt’s boat during repairs

performed by Resolute’s employee. Resolute also challenges

a judgment in Oswalt’s favor on his claim against Resolute

for breach of the implied warranty of workmanlike perfor-

mance. We must decide whether the district court correctly

rejected Resolute’s products liability claims, correctly found

Resolute liable to Oswalt and properly awarded Oswalt and

his insurer damages for surveyor’s fees and for the loss of use

of the boat during repairs.

BACKGROUND

In September 2006, Oswalt smelled burning coolant com-

ing from the heater on his boat, the M/V CHUG, which was

docked at a marina in Anacortes, Washington. Oswalt asked

Jeff Albrecht, the general manager of a local repair shop, to

fix the heater. When Albrecht arrived to begin the scheduled

repair, he noticed that the heater, a diesel-powered model that

uses electricity to control the fuel flow, was cold. Albrecht

had been told by Oswalt that the circuit breaker labeled “boat

heat” controlled power to the heater, so he flipped that

breaker and began the repair.

Albrecht opened the heater’s cover to remove the burner

unit, a component ordinarily contained by a cylindrical canis-

8194 OSWALT v. RESOLUTE INDUSTRIES

ter inside the heater. When the heater is running, the end of

the burner unit emits “a very intense flame, similar to a blow-

torch,” although there was no flame at the time Albrecht

opened the cover. Albrecht removed the burner unit and set

it on end on a shelf very close to the boat’s overhead, or ceil-

ing. Then his cell phone rang. It was the repair shop, asking

Albrecht to move another boat in the marina. Albrecht left the

CHUG, moved the other boat and returned 30 minutes later

to the sight of smoke pouring from the stern of the CHUG,

which had caught fire while he was away.

The parties agree that the burner unit was the source of the

fire. It is also undisputed that the burner unit cannot turn on

and emit a flame unless there is electricity flowing to the unit.

Thus, although the means by which electricity reached the

unit remain unknown, it is clear that Albrecht’s flipping the

circuit breaker did not cut the power.

Oswalt and his insurer, Federal Insurance Company, sued

Albrecht’s employer, Resolute, for negligence and breach of

contract, including breach of the implied warranty of work-

manlike performance. Resolute filed a third-party complaint

against the heater’s manufacturer, Webasto, alleging the fire

was caused by the heater’s inadequate warnings and instruc-

tions and its defective design. The district court granted sum-

mary judgment to Webasto on Resolute’s products liability

claims. Then, after a two-day bench trial, the court held that

Resolute had breached the implied warranty when Albrecht

moved the burner unit “to a position where it was certain to

start a fire if it turned on” without first ensuring the heater’s

power was disconnected. The court awarded more than

$200,000 in damages to Oswalt, including $4110 for hotel

expenses Oswalt incurred while the boat was being repaired

and $12,495 in fees Federal paid to its damage surveyor.

On appeal, Resolute challenges the adverse summary judg-

ment on its products liability claims, the adverse liability ver-

dict on Oswalt’s implied warranty claim and the damages

OSWALT v. RESOLUTE INDUSTRIES 8195

awarded for hotel expenses and surveyor’s fees. We have

jurisdiction under 28 U.S.C. § 1291. We conclude that the dis-

trict court properly granted summary judgment to Webasto on

Resolute’s inadequate warnings claim but erroneously granted

summary judgment to Webasto on Resolute’s design defect

claim. Resolute raised a genuine issue of material fact as to

whether Webasto’s failure to include an automatic current

shutoff device made the heater’s design defective. We hold,

however, that the district court properly held Resolute liable

on Oswalt’s implied warranty claim and properly awarded

damages for surveyor’s fees and for loss of use of the CHUG.

We accordingly affirm in part and vacate in part the judgment

of the district court and remand for further proceedings on

Resolute’s design defect claim.

STANDARD OF Review

We review de novo the district court’s grant of summary

judgment. See Wallis v. Princess Cruises, Inc., 306 F.3d 827,

832 (9th Cir. 2002). “We determine, viewing the evidence in

the light most favorable to the nonmoving party, whether

there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.”

Id.

Findings of fact made after a bench trial are reviewed for

clear error, and conclusions of law are reviewed de novo. See

Havens v. F/T Polar Mist, 996 F.2d 215, 217 (9th Cir. 1993).

We review de novo the legal conclusion that damages are

available and review for clear error factual findings underly-

ing the damages award. See Bergen v. F/V St. Patrick, 816

F.2d 1345, 1350 (9th Cir. 1987).

DISCUSSION

I. Products Liability Claims

[1] Resolute’s products liability claims against Webasto

are controlled by the federal common law of maritime torts,

8196 OSWALT v. RESOLUTE INDUSTRIES

which is informed by the American Law Institute’s Restate-

ment of Torts. See Pan-Alaska Fisheries, Inc. v. Marine Con-

str. & Design Co., 565 F.2d 1129, 1134 (9th Cir. 1977). We

have previously adopted Section 402-A of the Restatement

(Second) of Torts as the law of products liability in admiralty

cases. See id. at 1134-35; see also Saratoga Fishing Co. v.

Marco Seattle Inc., 69 F.3d 1432, 1437-38 (9th Cir. 1995),

rev’d on other grounds sub nom. Saratoga Fishing Co. v. J.M.

Martinac & Co., 520 U.S. 875 (1997). In Saratoga Fishing,

we also relied on a preliminary version of the Products Liabil-

ity Section of the Restatement (Third) of Torts, although we

declined at that time to adopt that early draft as controlling.

See Saratoga Fishing, 69 F.3d at 1441 (citing Restatement

(Third) of Torts: Products Liability § 2, Tentative Draft No.

1, 1994)).

[2] Since the Restatement (Third) was finalized in 1998,

however, we and other circuits have relied on it. See St. Paul

Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181,

1190 n.18 (11th Cir. 2009); Krummel v. Bombardier Corp.,

206 F.3d 548, 552 (5th Cir. 2000); All Alaskan Seafoods, Inc.

v. Raychem Corp., 197 F.3d 992, 995 (9th Cir. 1999). We

agree with the parties that we should look to the Restatement

(Third) of Torts: Products Liability to guide our assessment of

Resolute’s products liability claims, and we therefore apply

its principles below.1 See Restatement (Third) of Torts: Prod-

ucts Liability § 2 (1998) (hereinafter Restatement) (defining

1

Judge Fisher acknowledges that his former co-clerk, Professor Gary T.

Schwartz, a distinguished professor of tort law at UCLA School of Law

until his untimely death, served as an adviser to the American Law Insti-

tute on the Products Liability Restatement. See American Law Institute,

Restatements of the Law – Torts – Torts: Products Liability,

http://www.ali.org/index.cfm?fuseaction=publications.ppage&node_id=54

(last visited May 20, 2011); Richard H. McAdams & Thomas S. Ulen,

Tribute to Gary T. Schwartz, 2002 U. Ill. L. Rev. 789, 789 (2002).

OSWALT v. RESOLUTE INDUSTRIES 8197

categories of product defects, including design defects and

defects due to inadequate instructions and warnings).2

A. Inadequate Warnings Claim

Resolute contends that the warnings on the heater and the

instructions in its user’s manual were inadequate to inform the

user of the proper means of disconnecting power to the unit

before repair. In granting summary judgment to Webasto on

this claim, the district court first concluded that the instruc-

tions were irrelevant because Albrecht had never read them.

The parties agree that if Albrecht read the instructions, he

read them at a Webasto training session conducted by Sure

Marine, a heater supply company. The district court found,

however, that Webasto had “establish[ed] as a fact beyond

dispute that Albrecht could not have attended a Webasto

training prior to the fire aboard the boat,” thereby proving

Albrecht had not reviewed the user’s manual and instructions

at the time of the repair. It also reasoned that “[e]ven assum-

ing arguendo that Albrecht had read the Webasto manual and

the adequacy of its warnings was in issue,” Resolute pre-

sented insufficient evidence of the instructions’ inadequacy to

raise a fact question for trial. We reject the first of the district

court’s reasons for granting summary judgment, but conclude

its alternative holding was proper.

1. Relevance of Warnings and Instructions

[3] The district court erred in concluding that there was no

genuine issue of material fact as to whether Albrecht attended

a Webasto training before the fire. In his declaration, Albrecht

insisted that he was “certain” he attended a class training him

on the Webasto heater system “prior to the fire aboard the

CHUG[ ] in October 2006.” In support, Resolute submitted

2

Because the parties agree that the Restatement (Third) controls here,

we decline to decide whether its principles presumptively govern in every

case.

8198 OSWALT v. RESOLUTE INDUSTRIES

illegible timesheets purporting to demonstrate Albrecht

attended a training session on September 26, 2006, six days

before the fire on October 2. Webasto countered with a decla-

ration from the president of Sure Marine, stating that Sure

Marine’s only 2006 Webasto training took place on October

18, 2006, well after the fire. The Sure Marine declaration was

accompanied by a class roster showing that Albrecht was at

an October 18 training class, although it did not prove that no

additional classes were held earlier in the year.

[4] Neither party’s evidence established — beyond the

declarants’ conflicting assertions — whether Albrecht

attended a training before the fire. The district court chose to

credit the Sure Marine declaration, however, dismissing

Albrecht’s contrary declaration as unsubstantiated. In accept-

ing one account over the other, the court improperly resolved

an evidentiary conflict at the summary judgment stage. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(explaining that “[c]redibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from

the facts” are inappropriate at the summary judgment stage).

2. Adequacy of Warnings and Instructions

We nonetheless hold that the district court properly granted

summary judgment to Webasto because Resolute failed to

establish a genuine issue that the heater’s warnings and

instructions were inadequate.

[5] Resolute contends the warnings and instructions

improperly left to the repair technician, Albrecht, the method

of disconnecting power to the burner unit. We disagree. A

product “is defective because of inadequate instructions or

warnings when the foreseeable risks of harm posed by the

product could have been reduced or avoided by the provision

of reasonable instructions or warnings . . . and the omission

of the instructions or warnings renders the product not reason-

ably safe.” Restatement § 2(c). In general, however, “a prod-

OSWALT v. RESOLUTE INDUSTRIES 8199

uct seller is not subject to liability for failing to warn or

instruct regarding risks and risk-avoidance measures that

should be obvious to, or generally known by, foreseeable

product users.” Id. § 2 cmt. j.

[6] In this case, the risk that failure to disconnect the

power could cause a fire should have been obvious to

Albrecht, an experienced technician who undertook to repair

a flame-emitting burner unit in the confined space of a boat

where fire is a generally known risk. Indeed, Albrecht himself

admitted in his deposition that “kill the power” is an elemen-

tary rule for “working on a piece of equipment powered by

electricity.” Moreover, a warning on the outside of the burner

unit advised the user to “[d]isconnect the current before open-

ing,” confirming what Albrecht acknowledged was a basic

precautionary principle. Thus, even if Webasto was required

to inform Albrecht he needed to “kill the power” before

beginning the repair, Webasto provided such a warning.

[7] Resolute nonetheless argues that Webasto failed to

advise Albrecht of the proper mechanism for disconnecting

the power. But if Albrecht, an experienced technician, was

unsure how to go about disconnecting the power, he could

have looked to the heater’s repair manual, which included the

following instruction:

6.3 Removing the burner unit

Replacement of certain components in the combus-

tion unit is made easier if the burner unit is first

removed and placed on a bench.

1. Remove the cover on the thermostats, and pull out

the connection for the overheat fuse[ ], control ther-

mostat [ ] and temperature limiter [ ], unscrew the

clamp [ ] and lift up the connectors.

8200 OSWALT v. RESOLUTE INDUSTRIES

2. Remove block connectors A and B from the con-

trol unit and disconnect the fuel lines from the heater

connection pipes. Plug the pipes.

3. Loosen two eye bolt nuts [ ], swing out, remove

the hinge pin[ ] and lift off the burner unit.

Removal of the block connectors from the control unit, as

directed in paragraph 2, disconnects power to the unit. Thus,

read together with the warning on the outside of the burner

unit, the manual advised Albrecht to disconnect the power

before removing the burner unit, and provided for disconnec-

tion of the power, through removal of the block connectors,

in the process of removing the burner unit.

Resolute argues that its expert, Paul Way, raised a triable

issue as to the instructions’ adequacy. Way read instruction

6.3 as applying only when the burner unit was removed from

the boat entirely, and opined that the instructions should have

directed the user to “disconnect the power cord from the unit

. . . in all cases,” not just when the burner unit was removed

from the boat. Even were we to assume Way’s restrictive

interpretation of instruction 6.3 was reasonable, however, it

does not negate the fact that the instruction showed Albrecht

how to be sure the power source was disconnected, by remov-

ing the block connectors.

Way also testified that “the later version of the instruction

repair manual [instruction 6.3] . . . added the statement that,

with a big bold warning, ‘this is a dangerous situation,’ ” sug-

gesting that, “to avoid an unsafe condition,” a similar safety

warning should have been included in the earlier version of

the manual that was available to Albrecht. It is true that

instruction 6.3 initially was framed as a way to replace burner

unit components more easily, not as an explicit safety warn-

ing. But, as we have explained, the safety implications of dis-

connecting the power to the burner unit should have been

obvious to Albrecht, especially when he left the connected

OSWALT v. RESOLUTE INDUSTRIES 8201

burner unit lying close to and pointed toward the flammable

cabin ceiling. In this context, the absence of a “big bold warn-

ing” was not unreasonable. See Restatement § 2 cmt. j.

[8] For these reasons, we affirm the summary judgment on

Resolute’s inadequate warnings claim.

B. Design Defect Claim

Resolute also contends the heater was defectively designed

because it “should have been equipped with an automatic cur-

rent shutoff like all home furnaces are equipped with.” The

district court rejected this claim for three reasons: (1) the pro-

posed alternative design “is not based on any industry regula-

tions or standards”; (2) Resolute presented no evidence “that

any other marine heater manufacturer includes such a [shut-

off] device on their products”; and (3) Resolute presented no

evidence that the proposed shutoff device would have been

simple and cheap to implement. We find the first two obser-

vations inadequate to justify granting summary judgment, and

we disagree with the third.

[9] Compliance with applicable safety standards does not

insulate a manufacturer from defective product claims. See

Saratoga Fishing, 69 F.3d at 1441-42 (affirming the district

court’s conclusion that “although . . . [the manufacturers’]

failure to use [the proposed alternative design] at the time of

construction did not violate any industry rules or standards . . .

the design [was] unreasonably dangerous and defective

because the design included a high risk of danger and there

was a feasible alternative”). Furthermore, even though “it may

be difficult for the plaintiff to prove that an alternative design

could have been practically adopted” when the defendant’s

product is “the safest in use at the time of sale,” this fact is

not necessarily dispositive. Restatement § 2 cmt. d. If it were,

there could be no first case demanding improvement of an

unsafe (but widely accepted) product design.

8202 OSWALT v. RESOLUTE INDUSTRIES

[10] Finally, we do not agree with the district court that

Resolute failed to present any proof that its proposed alterna-

tive design would be simple and cheap to implement. Way

opined that the heater should have been designed with a

“built-in safety switch to automatically disconnect power to

the heater in the same manner as is commonly used in home

furnaces.” He stated that this design modification would have

been simple to implement, because “[i]n the Webasto case

there were two components that could be disassembled, and

there was a very easy place to mount either a wire coupling

or a safety switch so that if the burner head were removed, it

would automatically and positively disconnect power.” Way’s

description of the simplicity of the proposed design modifica-

tion, together with the evidence that similar safety features are

routinely included in home heaters, sufficed to raise a genuine

issue of material fact. See Restatement § 2 cmt. d (“If the

plaintiff introduces expert testimony to establish that a reason-

able alternative design could practically have been adopted, a

trier of fact may conclude that the product was defective not-

withstanding that such a design was not adopted by any man-

ufacturer, or even considered for commercial use, at the time

of sale.”).

We therefore vacate summary judgment on the design

defect claim.3

II. Resolute’s Liability to Oswalt

[11] Resolute disputes its liability for breach of the implied

warranty of workmanlike performance, arguing that, because

there was no “affirmative admissible proof of a causal link”

3

The district court did not consider Webasto’s argument — raised only

in its reply brief — that Way’s testimony was inadmissible because he was

not a properly qualified expert under Daubert v. Merrell Dow Pharmaceu-

ticals, Inc., 509 U.S. 579 (1993). We therefore decline to address the issue

here. On remand, the district court may, if appropriate, address the suffi-

ciency of Way’s qualifications in the first instance.

OSWALT v. RESOLUTE INDUSTRIES 8203

between Albrecht’s actions and the fire, the district court

clearly erred by finding that Albrecht caused the fire. We

reject this argument, however, because there was ample cir-

cumstantial evidence to support the causation finding.

Albrecht himself admitted that many boats are miswired, per-

haps explaining why flipping the breaker did not actually cut

the power to the heater. Moreover, the parties agree that the

burner unit was the source of the fire and that it could have

ignited only if there was power flowing to the heater. This cir-

cumstantial evidence supports the district court’s finding that

Albrecht’s failure to disconnect the power allowed electricity

to flow to the heater, causing the unattended burner unit to

ignite. See United States v. Standard Oil Co. of Cal., 495 F.2d

911, 916 (9th Cir. 1974) (affirming a finding that a boat

caused an oil fire based on “substantial circumstantial evi-

dence”).

III. Loss of Use Damages

Resolute argues the district court erred in awarding Oswalt

damages for hotel charges he incurred while the fire damage

to the CHUG was being repaired. The parties do not dispute

the relevant facts, which the district court found as follows:

At the time of the loss, Curtis Oswalt worked as

a flight attendant for Southwest Airlines. His work

assignments started and ended in Oakland, and he

had to pay for hotels in Oakland at his own expense

before and after each flight. To save this cost, he

used the CHUG as a second home when working in

Oakland, California in the winter months. When the

loss occurred, the M/V CHUG was being readied to

take to Oakland for the winter. Unable to use the

CHUG as his residence, Curtis Oswalt incurred hotel

expenses.

Citing The Conqueror, 166 U.S. 110 (1897), Resolute con-

tends that “[l]oss of use damages are not recoverable for a

8204 OSWALT v. RESOLUTE INDUSTRIES

pleasure craft” and that Oswalt therefore cannot recover hotel

fees he incurred when unable to use the CHUG, a “pleasure

yacht,” as a second home.

[12] The Conqueror held that a wronged boat owner seek-

ing recovery for loss of use of his boat must show “a pecuni-

ary loss, or at least a reasonable certainty of pecuniary loss,

and not a mere inconvenience arising from an inability to use

the vessel for the purposes of pleasure.” 166 U.S. at 133. It

therefore rejected a claim for damages for loss of use of a

yacht that was “designed for pleasure only, and [had] never

been put to any other use.” Id. at 112. This conclusion flowed

from the Court’s concern that the value of the lost recreational

use claimed in that case, which was based on unsupported

witness testimony, was “too uncertain and conjectural to form

a proper basis for estimation” of damages due. Id. at 127. We

later interpreted The Conqueror as establishing that, “[u]nder

federal maritime law loss of use of a private pleasure boat is

not a compensable item of damages.” Oppen v. Aetna Ins.

Co., 485 F.2d 252, 257 (9th Cir. 1973) (citing The Conqueror,

166 U.S. 110).4

[13] In this case, however, Oswalt sought to recover not

for lost recreational use of his boat, as was the case in The

Conqueror and Oppen, but for deprivation of the use of the

CHUG to defray his work-related expenses. The loss of use

4

This general rule against compensation for loss of use of a private plea-

sure boat has been questioned both as a matter of tort law and as a matter

of basic fairness. See Brooklyn E. Dist. Terminal v. United States, 287

U.S. 170, 175 (1932) (sharply criticizing this rule in dicta); N. Assurance

Co. of Am. v. Heard, 755 F. Supp. 2d 295, at *4-5 (D. Mass. 2010) (ques-

tioning the wisdom of a rule that “results in similarly situated plaintiffs

and defendants facing vastly different outcomes depending not on mone-

tizable damages but on the character of the loss”). Regardless, although

we are bound to apply Oppen, we find it readily distinguishable, as

explained in text. In Oppen, we had no occasion to decide whether a plain-

tiff may recover for loss of use of a private pleasure boat that is also used

for business-related purposes.

OSWALT v. RESOLUTE INDUSTRIES 8205

damages awarded to Oswalt are both business-related and

entirely nonspeculative; as the district court observed, the

hotel charges Oswalt incurred are supported by “extensive,

uncontroverted documentation.” We have never denied loss of

use damages under such circumstances. Cf. Oppen, 485 F.2d

at 257 (disallowing damages for interference with the plain-

tiffs’ recreational use of their “private pleasure boat[s]” in the

Santa Barbara Channel).

[14] The district court therefore correctly allowed Oswalt

to recover hotel charges incurred while the CHUG was being

repaired.

IV. Surveyor’s Fees

[15] The district court also properly allowed Federal Insur-

ance Company to recover the fees of the surveyor who

assessed the fire damage to the CHUG. Even if Resolute is

correct that Chubb, Federal’s parent corporation, “was the

corporation that [chose] and sent out the surveyor,” the dis-

trict court did not clearly err in finding that it was Federal that

paid the surveyor’s fees and should be compensated for them.

Nor does it matter that the surveyor’s fees were not included

within the amount reflected on the subrogation receipt. In the

receipt, Oswalt subrogated to Federal “all of [his] rights,

claims and interest” for the loss discovered on the day of the

fire. Federal was therefore entitled to recover sums Oswalt

himself could properly have claimed, and Resolute does not

dispute that Oswalt would have been entitled to recover sur-

veyor’s fees. Finally, it is irrelevant for damages purposes that

the district court earlier declined to penalize Federal when a

Chubb employee failed to respond to Resolute’s Rule 30(b)(6)

deposition notice. Resolute cites no authority for the proposi-

tion that the proper remedy for this alleged discovery griev-

ance was to curtail the damages award. We therefore uphold

the award of damages for surveyor’s fees.

8206 OSWALT v. RESOLUTE INDUSTRIES

CONCLUSION

We hold that the district court properly granted summary

judgment to Webasto on Resolute’s inadequate warnings

claim, but erroneously granted summary judgment on the

design defect claim. We further conclude that the court prop-

erly held Resolute liable on Oswalt’s implied warranty claim

and properly awarded damages for loss of use and surveyor’s

fees. Accordingly, we affirm in part and vacate in part the

judgment of the district court and remand for further proceed-

ings on Resolute’s design defect claim. Each party shall bear

its own costs on appeal.

AFFIRMED IN PART, VACATED IN PART,

REMANDED.