                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                      for the Fifth Circuit                    June 5, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 06-60673



         SHELTER INSURANCE COMPANY and BARBARA STEWART,

                                           Plaintiffs-Appellants,


                             VERSUS


                     MERCEDES-BENZ USA, LLC,

                                                 Defendant-Appellee.



          Appeal from the United States District Court
            for the Northern District of Mississippi
                          (1:03-CV-592)


Before KING, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

     Plaintiffs-Appellants Shelter Insurance Company and Barbara

Stewart (collectively “Appellants”) challenge the district court’s

directed verdict in favor of Mercedes-Benz USA, LLC (“Mercedes

USA”) dismissing Appellants’ manufacturing defect claim. The sole

issue on appeal is whether the district court correctly concluded

that Appellants failed to establish an essential element of their



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
claim under Miss. Code Ann. § 11-1-63; specifically, that Stewart’s

Mercedes “was defective because it deviated in a material way from

the manufacturer’s specifications or from otherwise identical units

manufactured to the same manufacturing specifications.” MISS. CODE

ANN.   § 11-1-63(a)(i)1.

       In September 2001, Stewart bought a new, 2002 C240 Mercedes.

On November 21, 2001, she left her home and drove the car to a

shopping mall. Stewart returned home and parked the Mercedes in her

garage, and then took a nap with her daughter. When her daughter

woke   up,   she   noticed   smoke   coming   from   the   garage.   Stewart

investigated and found the garage ablaze. The fire burned Stewart’s

Mercedes, garage, and parts of her home and its contents. Shelter

Insurance Company, Stewart’s insurer, paid for the damage.

       The parties disagree on most of the rest, including where in

the garage the fire started and what caused it. Appellants’ theory

is that the fire started in the engine of Stewart’s Mercedes and

was caused by a defectively manufactured car battery. Mercedes

USA’s theory, on the other hand,          is that the fire started in a

trash can right next to the Mercedes and was caused by burning

debris in the trash can, which Stewart had thrown away earlier that

day after cleaning out her fireplace.

       Appellants sued Mercedes USA alleging various Mississippi

state law causes of action, including (1) traditional negligence,

(2) negligence based on res ipsa loquitur and (3) strict liability.



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Regarding strict liability, Appellants pointed to Miss. Code Ann.

§ 11-1-63 and its broad range of product liability theories: (1)

manufacturing defect, (2) inadequate warning, (3) design defect and

(4) breach of warranty. See id. at § 11-1-63(a)(i)1-4.

     Mercedes USA moved for summary judgment. The district court

denied the motion, and the case proceeded to trial. With each of

their approximately seven theories of liability still in play,

Appellants presented their case-in-chief to the jury. At the close

of Appellants’ case-in-chief, Mercedes USA moved for a directed

verdict. Appellants responded to the motion by abandoning each of

their claims except their strict liability claim based on an

alleged   manufacturing       defect    in    the   car    battery.   Appellants

conceded that they failed to prove negligence under any theory or

strict liability via inadequate warning, design defect, or breach

of warranty. Thus, their remaining theory was manufacturing defect-

-that Stewart’s Mercedes, specifically its battery, was defectively

manufactured and caused the fire.

     With   only   the   manufacturing        defect      claim   remaining,   the

district court heard argument from both sides, asked questions

regarding the record evidence as applied to Mississippi’s statutory

requirements for manufacturing defect claims, and made a decision.

The court ultimately held          that Appellants failed to prove an

essential    element     of     their        manufacturing        defect   claim;

specifically, they failed to prove that the car battery “deviated



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in a material way from the manufacturer’s specifications or from

otherwise identical units manufactured to the same manufacturing

specifications.” Id. at § 11-1-63(a)(i)1. Thus, the court granted

Mercedes    USA’s    motion     for   a   directed        verdict      and    dismissed

Appellants’ claims.

      Appellants moved to amend the judgment, the district court

denied the motion, and Appellants timely filed a notice of appeal.

      The parties agree on the following: First, the only claim

before us on appeal is Appellants’ strict product liability claim

based on an alleged manufacturing defect in Stewart’s car battery.

Second, the claim is governed by Miss. Code Ann. § 11-1-63(a)(i)1.

And third, the only record evidence relevant to the claim is that

the car battery may have been the origin of the fire. Thus, in

effect, the parties agree on the sole issue, what law governs that

issue, and the existence of one and only one piece of evidence

relevant to that issue. Of course, the parties disagree on whether

this one piece of evidence is itself sufficient to let a jury

decide    the   issue.    Our   review        is   de    novo.   See       Leverette   v.

Louisville Ladder Co., 183 F.3d 339, 341 (5th Cir. 1999).

      As the parties note, Miss. Code Ann. § 11-1-63 provides that

in   an   action    for   damages     allegedly         caused   by    a    defectively

manufactured product:

      (a) The manufacturer or the seller of the product shall
      not be liable if the claimant does not prove by a
      preponderance of the evidence that at the time the
      product left the control of the manufacturer or seller:

                                          4
           (i)1. The product was defective because it deviated
           in   a  material    way   from   the manufacturer’s
           specifications or from otherwise identical units
           manufactured     to     the    same   manufacturing
           specifications . . . .

Id. at   § 11-1-63(a)(i)1 (emphasis added).

The district court concluded that Appellants offered no evidence

relating   to   the   italicized   requirement,   i.e.,   that   Stewart’s

battery deviated in a material way from specs or a properly

constructed, 2002 Mercedes C240 car battery. The court found it

troubling that Appellants failed to enter into evidence even the

manufacturer’s specifications for such a battery, and similarly

failed to offer evidence of otherwise identical units. As a result,

the court decided that Appellants necessarily failed to show that

the battery in Stewart’s Mercedes deviated in any way, much less

deviated in a material way, from the manufacturer’s specifications

or otherwise identical units.

     Appellants really do not contend otherwise. Rather, they argue

that the single fact that the battery caught fire necessarily

proves that the battery was defectively manufactured. That this is

Appellants’ sole argument is clear from the trial transcript, which

is consistent with Appellants’ appeal brief:

     THE COURT: All right. How did [Stewart’s battery] deviate
     from the manufacturer’s specification[s]? What proof is
     in the record?

     MR. KEMP [APPELLANTS’ COUNSEL]: Well, it burned.

     THE COURT: Okay.


                                     5
       MR. KEMP: . . . . This vehicle burned. Because it burned,
       it deviated from the manufacturer’s specifications.

       THE COURT: And that’s your argument?

       MR. KEMP: That is one of my arguments. There are other
       arguments . . . . Do you want me to make them?

       THE COURT: No. I want to know what facts you have
       established.

       MR. KEMP: What facts have I established? Number 1 --

       THE COURT: That show that [Stewart’s battery] deviated,
       in a material way, from the manufacturer’s specs.

       MR. KEMP: The biggest fact off all is the fact that it
       burned [Stewart’s] house down.

The court again asked Appellants to specify what evidence they had

introduced to prove that the battery deviated from specifications

or otherwise identical units. Appellants responded: “That [the

battery has] a fuse system on it; that it should work if there’s an

electrical fault at or near the battery . . . . And, certainly, if

that fuse system doesn’t work, it deviates from the manufacturer’s

specifications.”

       The court and Appellants continued back and forth on this same

point, but got nowhere. The court asked again: “[Y]ou are now

saying [Stewart’s battery was] defective because it deviated . . .

from    the   manufacturer’s   specifications;   is   that   correct?”

Appellants responded: “[Y]es, Your Honor, because it burned.”

       For the reasons stated by the district court in its oral

ruling, we AFFIRM. We need look no further than the plain language

of the Mississippi statute. Appellants were required to prove that


                                   6
the battery deviated. See id. at § 11-1-63(a)(i)1. They failed to

even attempt to do so. Rather, they attempted to prove only that

the battery malfunctioned. As a result, they necessarily failed to

prove an essential element of their claim.

AFFIRMED.




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