                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                        UNITED STATES CO URT O F APPEALS
                                                                  October 18, 2007
                                                       Elisabeth A. Shumaker
                            FO R TH E TENTH CIRCUIT        Clerk of Court




    TIM OTHY A. TABOR; DEBRA J.
    TABOR; FARM ERS INSURANCE
    GRO UP,
                                                   No. 05-4155 & 05-4156
          Plaintiffs-Appellants,                 (D.C. No. 2:99-CV-503-TC)
                                                           (Utah)
    v.

    THE M ETAL WA RE
    CORPORATION, a W isconsin
    corporation,

          Defendant-Appellee,

    and

    NESCO AM ERICAN HARVEST, a
    M innesota corporation; N EWC O OF
    TW O RIVERS, a W isconsin
    corporation,

          Defendants.




                             OR D ER AND JUDGM ENT *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before K ELL Y and TYM K O VICH , Circuit Judges, and EAGAN, ** District
Judge.


      Appellants Timothy and Debra Tabor and Farmers Insurance Company

appeal from an order entered M ay 20, 2005, granting appellee M etal W are

Corporation summary judgment on products liability claims filed against

American Harvest, a company whose assets M etal W are acquired in 1997. The

district court concluded that 1) Utah law would not impose strict liability on

successor corporations for defective products sold by the predecessor corporation,

and 2) that Utah law would, however, recognize an independent post-sale duty to

warn by successor corporations. The court held, as a matter of law, that the

Tabors could not establish that M etal W are’s failure to warn caused their

damages.

      On M ay 26, 2006, we certified questions of state law to the Utah Supreme

Court in this matter. On August 31, 2007, the court responded. See Tabor v.

M etal Ware Corp., ___P.3d___, 585 Utah Adv. Rep. 23 (Utah 2007).        W e have

since received supplemental briefs from the parties addressing the impact of the

Utah Supreme Court’s decision.

      Upon consideration of the response to our certified questions and the briefs

filed in response to our order dated September 12, 2007, we VACATE the district



**
  The Honorable Claire V. Eagan, Chief Judge, United States District Court for
the Northern District of Oklahoma, sitting by designation.

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court’s order entered M ay 20, 2005 and the judgment entered that same day, and

REM AND for additional proceedings consistent with the opinion of the Utah

Supreme Court. W e make no comment on the outcome of those proceedings, and

defer to the district court with respect to the appropriate scope of the proceedings.

The mandate shall issue forthwith.


                                               Entered for the Court



                                               Timothy M . Tymkovich
                                               Circuit Judge




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