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Hankook Tire Co., Ltd. v. Philpot

Court of Appeals of Arkansas, Division II

November 7, 2018

HANKOOK TIRE CO., LTD., AND HANKOOK TIRE AMERICA CORP. APPELLANTS
v.
ELMER PHILPOT APPELLEE

          APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15CV-12-114] HONORABLE TERRY SULLIVAN, JUDGE.

          Hardin, Jesson & Terry, PLC, by: Kirkman T. Dougherty and Kynda Almefty; and Rose Law Firm, by: Patrick J. Goss, for appellants.

          Dobson Law Firm, P.A., by: R. Margaret Dobson; Kelly Law Firm, P.A., by: Jerry Kelly; Kaster-Lynch, P.A., by: Bruce Kaster; and Gordon, Caruth & Virden, P.L.C., by: Ben Caruth, for appellee.

          MIKE MURPHY, JUDGE.

         A jury in Conway County, Arkansas, found the appellants, Hankook Tire Company, Limited, and Hankook Tire America Corporation (collectively referred to at times as Hankook) strictly liable for injuries that the appellee, Elmer Philpot, suffered after the failure of a Hankook tire caused him to lose control of the dump truck that he was driving on State Highway 9 in Conway County on July 6, 2010. Hankook raises six arguments for reversal. We dismiss without prejudice for lack of a final judgment.

         This is the second attempted appeal in this case. We previously dismissed without prejudice Hankook's appeal from the circuit court's order imposing attorney's fees as a discovery sanction in Hankook Tire Co., Ltd. v. Philpot, 2016 Ark.App. 386, 499 S.W.3d 250. There, we held that the order awarding attorney's fees was not a final appealable order because it did not adequately certify that it was a final judgment under Ark. R. Civ. P. 54(b). Id., at 7-8, 499 S.W.3d at 253-54. We dismiss this appeal because the circuit court's judgment is not final as to one of the defendants in the case.

         Appellant Hankook Tire Company, Limited, manufactures tires in South Korea and Europe, and appellant Hankook Tire America Corporation distributes the tires in the United States. Appellee Elmer Philpot was driving a dump truck that had a Hankook tire installed on the right front wheel. The tire failed as Philpot was driving on State Highway 9 on July 6, 2010, causing him to lose control of the truck and crash into a drainage ditch on the side of the highway. Philpot suffered severe injuries when the force of the impact ejected him through the truck's windshield.

         The case was initially filed in June 2012 in Conway County. Philpot later filed an amended complaint on March 14, 2014. Philpot alleged that Hankook manufactured the inherently defective steel-belted tire, "Hankook 385/65R 22.5 Super Single radial medium truck tire," and distributed it for sale in Arkansas. The tire was installed on the right front wheel of a 1985 Ford 9000 dump truck, which was loaded with gravel and which Philpot was driving when the tire tread belt failed. Philpot alleged that Hankook was negligent in its design, testing, construction, and manufacture of the tire and in its failure to inspect the tire or warn of the defects that it knew or should have known to exist. Philpot further contended that the tire was unfit and unsafe for its intended use and purpose and that Hankook breached an implied warranty. Philpot also sued Kenneth Hedrick, his employer, and Tommy New, the owner of the truck, alleging that they were negligent for failing to properly inspect and maintain the tire for his use.[1] All the defendants alleged that Philpot's own negligence contributed to his injuries, and all sought, if necessary, apportionment of liability and damages among the defendants. Mr. Hedrick, in particular, filed a cross-claim seeking a judgment against Hankook "for contribution as per the uniform contribution among tortfeasor's act against [Hankook] and also for indemnity against Hankook."

         The case proceeded to a six-day trial that concluded on September 8, 2016. Philpot introduced evidence to support his theory that the tire's failure was caused by manufacturing defects. At the close of Philpot's case, the circuit court granted a directed verdict in favor of one of the defendants, Kenneth Hedrick, finding that Philpot had failed to introduce sufficient evidence to support his theory that Mr. Hedrick negligently failed to properly maintain and inspect the dump truck.

         During the defense case, Hankook introduced evidence to support its theory that the tire's failure was caused by a combination of improper maintenance and damage from an impact with an object on the road. At the close of all the evidence, Hankook and Mr. Hedrick mutually agreed to dismiss their cross-claims against each other.

         The jury thereafter returned a verdict finding that Hankook and Hankook America were strictly liable for Philpot's injuries, apportioning 90 percent of the fault to Hankook and 10 percent of the fault to Hankook America. The jury rejected Philpot's negligence claims against both Hankook companies, as well as the owner of the truck, Tommy New. Consequently, the circuit court entered a judgment awarding Philpot $1, 080, 000 in damages against Hankook and $120, 000 in damages against Hankook America. The judgment further provided that "the Complaint and Crossclaims against the Separate Defendant, Tommy New, are hereby denied." However, neither the judgment nor any other written order addresses Philpot's negligence claim against Mr. Hedrick or Mr. Hedrick's cross-claim against Hankook.

         The question whether an order is final and appealable is jurisdictional, and this court is obligated to consider the issue on its own even if the parties do not raise it. Price v. Carver, 2017 Ark.App. 75, at 2, 513 S.W.3d 877, 879. The requirement that an order must be final and appealable is observed to avoid piecemeal litigation. Id. An order is final if it dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy. Id. at 3, 513 S.W.3d at 879. An order is not final, therefore, when it adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties. Id. (emphasis added).

         Entry of a final judgment for fewer than all claims is allowed, however, under the following circumstances:

(1) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, ...

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