Product Liability: Plaintiff Is Not Required to Prove that Alternative Design Was Commercially Available

Artis v. Corona Corp. of Japan, __ A.2d __ (D.C. 1997). Opinion by Reid, joined by King and Eilperin (sitting by designation).

FACTS: Plaintiff bought a portable kerosene heater made by the defendant. One day the heater flared up and burned him badly, probably because he was using gasoline instead of kerosene as a fuel (which a label on the heater warned against). Plaintiff's expert, after trying several approaches to an alternative design, testified that a "thermal barrier" between the heat source and the fuel tank would have prevented the flare-up. He made several prototypes and showed that there were no flare-ups in hundreds of hours of operation. The ultimate cost to the manufacturer of the thermal barrier would be about $10 per unit. The trial court granted summary judgment to the manufacturer on the ground that none of the expert's alternative designs was actually "commercially available," i.e., made and marketed by a competitor, at the time the plaintiff's heater was manufactured.

OUTCOME: Summary judgment for defendant REVERSED and remanded.

HOLDING: Plaintiff is required to prove only that a safer alternative design was "economically and technologically feasible" at the time the product was manufactured, not that one was actually commercially available.

QUOTE: "The question is not whether anyone else was doing more, although that may be considered, but whether the evidence discloses that anything more could reasonably and economically be done." (Quoting with approval Robinson v. G.G.C., Inc., 808 P.2d 522, 527 (Nev. 1991).

Wrongful Discharge: Employer May Not Fire an Employee for Speaking Out Publicly on a Legislative Matter Adverse to Employer's Interest

Carl v. Children's Hospital, __ A.2d __ (D.C. 1997) (en banc). Opinion per curiam; concurring opinions by Terry, Ferren, Schwelb and Mack (joined by Wagner, Ferrell, Ruiz and Reid); dissent by Steadman, joined by King.

FACTS: Linda Carl was employed as a part-time nurse in the neonatal intensive care unit (NICU) of Children's Hospital. She was fired in March 1992 after six months there. She sued for wrongful discharge, alleging she was fired because she had testified against tort reform before the D.C. City Council and had testified for plaintiffs in medical malpractice lawsuits. Hospital contended she was fired for not completing the NICU orientation classes during her six-month probationary period. Hospital also moved to dismiss for failing to state a claim, on the ground that the public policy exception to the "at will employment" doctrine on which she relied had never been recognized by the courts.

OUTCOME: Dismissal REVERSED and case reinstated.

HOLDING: (1) Firing an employee as retaliation for testifying before a legislative body is not protected by the "at will" doctrine.

(2) The Court of Appeals, through panels or sitting en banc, is free to make new public policy exceptions to the "at will" doctrine as situations arise.

NOTE: Majority of en banc court writes four concurring opinions agreeing with the result but disagreeing over where the courts can look for "public policy" exceptions to the doctrine. A plurality (Terry, Wagner, Farrell and Ruiz) would require that the exception be clearly stated in a statute, regulation or constitutional provision. Plurality found such a statement here in D.C. Code § 1-224 (1992), which makes it illegal to "corruptly or by threat of force ... influence, intimidate, or impede any witness" before the City Council. Other concurrers would allow the courts more flexibility in finding public policy exceptions.

SEE ALSO: In Kerrigan v. Britches of Georgetowne, Inc., __ A.2d __ (D.C. 1997), decided the same day as Carl, a panel affirmed dismissal of an employee's claim, rejecting the existence of a "covenant of good faith and fair dealing" in an "at will" employment contract. Nor can an employee escape the "at will" doctrine by alleging the employer was negligent or intentionally inflicted emotional distress.

Uninsured Motorist Coverage Is Governed by Law of State Where Contract Entered, Not Where Accident Occurred

Vaughan v. Nationwide Mutual Ins. Co., __ A.2d __ (D.C. 1997). Opinion by Levie (sitting by designation), joined by Schwelb and Reid.

FACTS: Plaintiff, a D.C. police officer, was hurt while on duty when an insured motorist hit his motor scooter. Plaintiff sued Nationwide, his own carrier, for uninsured motorist benefits. Nationwide contended its liability had to be limited to the policy maximum of $100,000 for "all legal damages claimed by anyone" for bodily injuries to "any one person" for "one occurrence," and thus that plaintiff's wife was not entitled to separate additional benefits. Nationwide also contended the maximum coverage had to be reduced for workers' compensation benefits received by the plaintiff, as provided by both Maryland law and the policy. Plaintiff contended that since the accident occurred in the District of Columbia, and since D.C. had no statutory provision for deducting workers' comp benefits from uninsured motorist benefits, the Maryland limitation should not apply. Trial court granted summary judgment for Nationwide.

OUTCOME: Judgment for insurer AFFIRMED.

HOLDING: (1) Under the policy's own choice of law provision, as well as under D.C. choice of law doctrine and sections 187 and 193 of the Restatement (Second) of Conflict of Laws (1971), Maryland law governed. It is important in insurance policies that there be certainty about coverage benefits and that benefits not vary by the happenstance of where an accident occurred. Therefore, the maximum uninsured motorist benefits of $100,000 had to be reduced by the workers' comp benefits received by the plaintiff.

(2) Policy language clearly did not give any extra coverage on wife's consortium claim, since it limited benefits to $100,000 for all damages claimed by anyone, including the wife, as a result of bodily injury to one person as a result of one occurrence.

D.C. Government Can Belatedly Assert Immunity Defense to a Bank Account Garnishment

Grunley Construction Co., Inc. v. District of Columbia, __ A.2d __ (D.C. 1997). Opinion by Richter (sitting by designation), joined by Schwelb and Farrell.

FACTS: Construction contractor won a judgment against the District of Columbia for $121,000 for extra work it did on a public housing project. After District failed to pay the judgment, contractor filed a motion for a writ of attachment. Although District didn't oppose the motion, trial judge denied writ on ground of sovereign immunity from garnishment. Contractor moved for reconsideration and again the District filed no opposition. Court issued writ, finding that the District waived its immunity by not opposing either of contractor's motions. When contractor then filed a motion for judgment against the bank as garnishee, the District finally moved to quash the writ of attachment. Trial court then quashed writ.

OUTCOME: Quashing of writ of garnishment AFFIRMED.

HOLDING: (1) Trial court was justified in granting the writ initially, since it was logical to assume that failure to oppose the writ was a waiver. But once the District asserted its immunity, trial court properly considered merits of writ and quashed it.

(2) D.C. Procurement Act, D.C. Code § 1-1188.1 (1981), waives sovereign immunity for contract actions but does not waive the District's immunity to garnishment when a claimant seeks to execute on a judgment.

QUOTE: "The discretion of a trial court to treat an unopposed motion as conceded under Super. Ct. Civ. R. 12-I(e), necessarily includes the power to reconsider when the allegedly waiving party unequivocally opposes the position previously deemed conceded or waived."