S-11-0541, Ronald “Tim” Bacon v. DBI/SALA, a/k/a DB Industries, Inc., (Appellant) and Kiewit Construction Co; Ridgetop Holdings, Inc,; Davis Erection Co., Inc., Employer; and Liberty Mutual Group, Its Workers’ Compensation Carrier
Douglas County, Judge James T. Gleason
Attorneys: Robert F. Bartle, David Geier (Bartle & Geier) and Francie C. Riedmann (Gross & Welch PCLLO) and Jonathan D. Hacker, Joanna Nairn (both pro hac vice) (O’Melveny & Myers LLP) and Lindsay G. Arthur, Jr. (pro hac vice) (Arthur Chapman Kettering Smetak & Pikala (for Appellant DB Industries, Inc.) --- Julie A. Martin (Nolan Olson & Stryker PCLLO) (for Davis Erection Co and Liberty Mutual Group) --- John M. Lingelbach (Koley Jessen PCLLO) and Barbara I. Michaelides, Agelo L. Reppas (both pro hac vice) (Bates Carey Nicolaides LLP) (for Appellee Ridgetop Holdings, Inc.) --- Matthew D. Hammes (Locher Pavelka Dostal Braddy & Hammes LLC) (for Kiewit Construction Co.) --- Britany S. Shotkoski, James Harris (Harris Kuhn LLP) and Robert G. Pahlke, Robert O. Hippe (for Ronald “Tim” Bacon, Appellee/Cross-Appellant)
Civil: Product liability; negligence
Proceedings below: The jury returned a verdict for Bacon in the amount of $21.1 million which was entered by the trial court. The trial court denied DBI’s motions for judgment notwithstanding the verdict, new trial, and remittitur.
Issues: The court erred in (1) failing to grant DBI’s motion for judgment nothwithstanding the verdict as the absence of a falling object warning was not he proximate cause of Bacon’s injuries because (a) Bacon had actual knowledge that he should not expose his line to overhead hazards; (b) Bacon ignored the direct and serious danger to his person from the overhead bundle of plates and thus it is unreasonable to conclude that Bacon would have heeded a warning to avoid overhead risks to his safety line; (c) negligent actions of third parties caused the deck plates to fall were unforeseeable intervening events breaking the causal chain as a matter of law; (2) refusing to instruct the jury on comparative negligence and in refusing to instruct the jury to allocate liability among DBI, the settling defendants and the plaintiff; (3) failing to grant a new damages trial on the ground that the damages award was excessive.
Cross-Appeal: Bacon assigns as error that the trial court erred in (1) granting Davis and Liberty Mutual’s motion for credit against the settlement proceeds Bacon received from Ridgetop; (2) determining that subrogation principles did not apply to the case; (3) failing to find the parent subsidiary relationship between Ridgetop and Davis creates a duty as a matter of law; (4) failing to find that the Liberty Mutual insurance policy for Davis contained an anti-subrogation endorsement which effectively waived any right of recovery against Ridgetop; (5) failing to find that Liberty Mutual expressly waived any right of recovery against the proceeds from the Ridgetop settlement; (6) failing to find that treating the third-party recovery as an “advance payment of the employer on account of an future installments of compensation” only applies when the recovery against the third-party was made by the employer. (7) In the alternative, if Davis and Liberty Mutual are entitled to a future credit against the Ridgetop Settlement proceeds, the trial court erred in failing to reduce the amount to be treated as an “advance payment by the employer on account of any future installment of compensation” by the attorney’s fees and costs expended by Bacon in recovering against Ridgetop; (8) in the alternative, if Davis and Liberty Mutual are entitled to a future credit against the Ridgetop Settlement proceeds, the trial court erred as a matter of law in failing to reduce the amount to be treated by an ‘advance payment by the employer on account of any future installment of compensation” by the $437,500 awarded to Kiewit out of the Ridgetop settlement.