                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1022
                         ___________________________

                          Bruce Martin Construction, Inc.

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                       CTB, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                           Submitted: September 25, 2013
                             Filed: November 4, 2013
                                  ____________

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

      Bruce Martin Construction, Inc. (Bruce Martin), appeals two district court1
orders, one dismissing its negligent misrepresentation claim against CTB, Inc., on the




      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
pleadings, the other granting summary judgment to CTB on Bruce Martin’s breach
of warranty claim. We affirm.

                                            I.

       Grain storage can be a dangerous, physically demanding process. When the
time comes to unload grain from a cylindrical bin, most of the grain (some 80
percent) will flow out the bottom of the bin by sheer force of gravity. Eventually,
however, the grain will reach its angle of repose, at which point gravity yields to
granular friction and the grain forms a conic valley around the bin’s central well. At
this point, a worker must enter the bin and shovel or otherwise move the remaining
grain towards the bin’s center, where it will enter the well and be moved outside the
bin by an auger placed below the bin’s floor. Hazards await the worker inside the
bin. Damp clumps of grain stuck to the walls of the bin can crumble and fall, causing
a chain reaction and burying the worker in cascading grain. Or the grain beneath the
worker’s feet can give way, sucking the worker down towards the center well. Even
breathing the air inside a bin can be unsafe, since many grains produce noxious
gasses. Since 2007, at least eighty farm workers have died while working inside
bins. See John M. Broder, Silos Loom as Death Traps on American Farms, N.Y.
Times, October 28, 2012, at A1.

        The Brock Harvest-Time Bin Unload System was designed to remedy this
problem by automating the process of unloading grain from bins. The “power
sweep,” as it is known, consists of a metal auger, semi-enclosed by a tube, extending
horizontally from the bin’s central well to its perimeter. Propelled by a rubber tire at
its far end, the sweep rotates around the floor of the bin like the hand of a clock, while
the flights of the rotating auger pull the grain towards the central well, where it flows
to the underlying auger, as described above. This mechanized process eliminates the
need for a person to enter the bin. The diagram below depicts the Brock Harvest-
Time Bin Unload System.

                                           -2-
       From 2005 to 2008, Bruce Martin purchased seventy-nine of these sweeps from
CTB and resold seventy-four of them to its customers in Missouri, Arkansas,
Tennessee, and Kentucky. The sweeps came with an express warranty that covered
“defects in material or workmanship”; CTB expressly disclaimed all other warranties.
Approximately eight months after it sold the first sweep, Bruce Martin began
receiving complaints from its customers that the sweeps did not work. The steel with
which the sweeps were made was too flimsy to penetrate many of the grains grown
in the region and the rotating tire would sit and spin without advancing the sweep.
To effectively operate the sweep, a worker had to enter the bin and physically push
the sweep along, which of course defeats the purpose of having an automated sweep
system.

      Bruce Martin sued CTB for negligent misrepresentation and breach of express
warranty. The district court dismissed the negligent misrepresentation claim on the
pleadings after concluding that Missouri’s economic loss doctrine barred the claim.

                                        -3-
The district court then granted CTB’s motion for summary judgment on the breach
of warranty claim, finding that Bruce Martin had alleged a defect in the design of the
sweeps that was not covered by CTB’s warranty against “defects in material and
workmanship.”

                                          II.

       Bruce Martin alleges that the district court erred in concluding that Missouri’s
economic loss doctrine precluded its negligent misrepresentation claim. Our court’s
recent decision in Dannix Painting, LLC v. Sherwin-Williams Co., No. 13-1025, slip
op. at 2 (8th Cir. Oct. 21, 2013), forecloses this argument. The Dannix court
predicted that the Supreme Court of Missouri, if confronted with the issue, would
hold that the economic loss doctrine bars negligent misrepresentation claims.
Accordingly, if Bruce Martin is to recover from CTB for the defective sweeps, it must
be on the basis of the warranties set forth in the contract.

                                         III.

       We turn then to Bruce Martin’s allegation that the district court erred in
granting summary judgment to CTB on Bruce Martin’s breach of express warranty
claim. Bruce Martin argues that CTB’s warranty against “all defects in material and
workmanship” covers the defective materials used to build the sweeps. We review
a district court’s grant of summary judgment de novo. St. Martin v. City of St. Paul,
680 F.3d 1027, 1032 (8th Cir. 2012) (citing Figg v. Russell, 433 F.3d 593, 597 (8th
Cir. 2006)). Indiana law controls our analysis because (1) the parties agreed that it
would govern the interpretation of the contract, and (2) Indiana contract law does not
contravene a fundamental public policy of Missouri. See Kagan v. Master Home
Prods., Ltd., 193 S.W.3d 401, 407 (Mo. Ct. App. 2006).




                                         -4-
        While no Indiana court has defined the terms “defects in material or
workmanship” or “design defect,” case law from outside Indiana reflects an
understanding that defects in material and workmanship refer to departures from a
product’s intended design while design defects refer to the inadequacy of the design
itself. See Lombard Corp. v. Quality Aluminum Prods. Co., 261 F.2d 336, 338 (6th
Cir. 1958) (“A defect in material is a defect in quality. . . . Design, on the contrary,
involves the overall plan of construction and operation.”).2

       Indiana products liability law also adopts the distinction between design and
manufacture. See Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 281 (Ind. 1983) (“In
order for the plaintiff to recover, the defect can be that the product was defectively
designed, defectively manufactured, or that the manufacturer failed to supply
adequate warnings or instructions as to the dangers associated with its use.”). While
products liability in tort is distinct from breach of a contractual warranty, the two
doctrines are conceptually similar in that both concern liability for product defects.
Because both Bruce Martin and CTB are merchants of dangerous goods who are
likely familiar with products liability law, it seems reasonable that the parties may
have implicitly incorporated understandings from products liability doctrine into their
contract. Indeed, many courts have drawn direct analogies between products liability


      2
        See also Hughes v. Panasonic Consumer Elecs. Co., No. 10-846 (SDW), 2011
WL 2976839, at *19 (D.N.J. July 21, 2011); Cali v. Chrysler Grp., LLC, No. 10 Civ.
7606(JSR), 2011 WL 383952, at *2 (S.D.N.Y. Jan. 18, 2011), aff’d 426 F. App’x 38
(2d Cir. 2011) (per curiam) (“‘Design’ refers to ‘the arrangement of elements that
make up . . . a machine,’ and ‘the process of selecting the means and contriving the
elements, steps, and procedures for producing what will adequately satisfy some
need.’ . . . The terms ‘material,’ ‘workmanship,’ or ‘factory preparation,’ on the other
hand, refer to the mechanical process of implementing that design.” (citation
omitted)); Brothers v. Hewlett-Packard Co., No. C-06-02254 RMW, 2007 WL
485979, at *4 (N.D. Cal. Feb. 12, 2007); Teuful v. Wienir, 411 P.2d 151, 154 (Wash.
1966) (concluding that a design defect occurred where “any properly constructed
[product] would have presented the same problem”).

                                          -5-
and contractual warranties. See, e.g., Huffman v. Electrolux N. Am., Inc., No.
3:12CV2681, 2013 WL 4428803, at *6 (N.D. Ohio Aug. 13, 2013); Rice v. Sunbeam
Prods., Inc., No. CV 12-7923-CAS-(AJWx), 2013 WL 146270, at *12 (C.D. Cal. Jan.
7, 2013) (“[T]he phrase ‘free from defects in material and workmanship’ in
defendant’s limited warranty refers only to manufacturing defects, not design
defects.”); Hughes, 2011 WL 2976839, at *19 (“‘[W]orkmanship’ covers the
Televisions’ defective computer programming, which is a manufacturing defect.”).
Thus, case law supports the view that, where a product is manufactured correctly but
designed inappropriately, the defect is one of design and not “material or
workmanship.”

        Bruce Martin’s own expert agreed with this characterization. He repeatedly
referred to the problems with the sweeps as defects in design. Indeed, Bruce Martin
itself does not dispute that the sweeps conformed to their intended design in every
respect. Rather, Bruce Martin asserts that the design was defective in calling for
unsuitable materials, essentially arguing that the defect is both one of design and one
of material. This admission is ultimately fatal to Bruce Martin’s warranty claim, for
a design defect cannot also be a defect in material and workmanship. See Mack
Trucks Inc. v. BorgWarner Turbo Sys., Inc., 508 F. App’x 180, 184 (3d Cir. 2012);
Orthoflex, Inc. v. ThermoTek, Inc., Nos. 3:11-CV-0870-D, 3:10-CV-2618-D, 2013
WL 4045206, at *8 (N.D. Tex. Aug. 9, 2013) (“Th[e] phrase [‘material and
workmanship’] does not cover design defects.”); Rice, 2013 WL 146270, at *11;
Horvath v. LG Elecs. Mobilecomm U.S.A., Inc., No. 3:11-CV-01576-H-RBB, 2012
WL 2861160, at *5 (S.D. Cal. Feb. 13, 2012) (“An express warranty covering
‘materials and workmanship’ does not include design defects.”); Cali, 2011 WL
383952, at *2. Were it otherwise, a warranty for “material and workmanship” would
obviate the need for a design warranty entirely. Because all products are the result
of materials and workmanship, any product defect is potentially attributable to one
or the other. Bruce Martin’s reading of the warranty would thus extend coverage to



                                         -6-
any product defect. This cannot be what the parties contemplated. Clearly, they
intended to limit the warranty in some way by specifying that it applied only to
“material and workmanship.” Thus, the district court did not err in granting summary
judgment to CTB on Bruce Martin’s breach of warranty claim.

                                        IV.

      The judgment is affirmed.
                    ________________________________




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