                                                  [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            DEC 18, 2008
                             No. 08-13868
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                    D. C. Docket No. 07-01216-CV-IPJ

J.H.O.C.,
d.b.a. Premier Transportation,
SENTRY SELECT INSURANCE,

                                                         Plaintiffs-Appellants,

                                  versus


VOLVO TRUCKS NORTH AMERICA, INC.,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                           (December 18, 2008)

Before BLACK, BARKETT, and KRAVITCH, Circuit Judges.

PER CURIAM:
      The owner and the insurer of a tractor, J.H.O.C. d/b/a Premier

Transportation (“Premier”) and Sentry Select Insurance respectively, sued the

tractor manufacturer, Volvo Trucks North America, Inc. (“Volvo”), following an

engine fire on August 19, 2006. The fire resulted from a defect in the exhaust gas

recirculation system (EGR) that was the subject of a Volvo recall. The district

court granted summary judgment to Volvo. For the reasons stated below, we

affirm.

                                I. BACKGROUND

      On August 22, 2006, a tractor manufactured by Volvo which was owned

and operated by Premier and insured by Sentry caught fire and was destroyed. The

parties agree that this tractor was subject to a recall issued by Volvo in February

2006. The parties also agree that the cause of the fire was the defective condition

of the exhaust gas recirculation (“EGR”) pipes that was the subject of the recall.

      Premier first learned of the EGR pipe defect on January 21, 2006 when

Richard Brady, Premier’s Director of Maintenance, received an email from Volvo

discussing the problem and advising him that a recall notice would be issued

shortly. The email acknowledged that Volvo had 42,000 trucks involved in the

safety recall and that “[o]bviously it will take several months to facilitate action”

on so many trucks. The email also stated that “[c]ustomers with trucks affected by

                                           2
the recall can continue to normally operate their vehicles until the repair is made,

but if they hear an exhaust leak or noise under the hood, they should stop the

vehicle immediately and inspect the pipes.” The email also advised truck owners

to examine the pipes during every pre-trip inspection.1

       On March 6, 2006,2 Volvo issued a recall notice formally alerting Premier

that a defect existed in the EGR pipes on Volvo tractors and identifying the

individual tractors subject to the recall. The notice cautioned truck owners that an

EGR-pipe failure could result in a fire and the defect should be corrected. The

notice stated that should the EGR pipes fail there would be advance warning in the

form of an audible increase in engine noise, discernible from normal engine noise,

at which point the driver should immediately stop operating the vehicle. Truck

owners were advised to look for early signs of an EGR-pipe failure such as cracks,

separation of pipes, or sooting3 when conducting their regular pre-trip inspections.

       1
          Pre-trip inspections are inspections required by Department of Transportation regulation
that must be performed before every trip on a commercial tractor such as the truck involved in
this lawsuit. See 49 C.F.R. § 392.7 (providing that no commercial vehicle may be driven unless
the driver is satisfied that the following parts are in good working order: service brakes and
trailer brake connections; hand brake; steering mechanism; lighting devices and reflectors; tires;
horn; windshield wipers; rear-vision mirrors; and coupling devices).
       2
         Although the recall notice is dated February 28, Premier asserts that it did not receive
the notice until March 6. As we construe all facts in favor of Premier, the non-moving party, in
reviewing this summary judgment ruling, we will use March 6 as the date of the recall notice.
       3
         Volvo stated that black smoke residue from a cracked portion of the EGR system would
be visible in an inspection under the hood of the tractor prior to a failure of the EGR pipes.

                                                3
Volvo asked truck owners to make an appointment to have the repairs performed

at the nearest Volvo service center. The notice stated that the repairs would take

approximately thirty minutes and would be performed at no cost to the truck

owner.

      According to Richard Brady’s deposition testimony, he understood the

potential for fire if the EGR pipes were not replaced and knew that a safety recall

was something that must get done “ASAP.” Brady testified that Premier began

attempting to get its trucks repaired in accordance with the recall notice, but ran

into some difficulty. Because of an existing dispute with the Atlanta Volvo

service center, Premier refused to use that location to fix the trucks and decided

instead to get the trucks fixed on the road. Under this plan, the truck drivers

would stop along their routes at Volvo service centers they passed and try to get

the repair done. According to Brady, “40 or 50 times” the service centers did not

have the necessary part and could not immediately do the EGR repair. Brady

testified that the Volvo centers stated that they could have the part within a day,

but the Premier trucks could not wait for the repair because the trucks were in

route to make deliveries and were paid according to the timeliness of their arrival.

Brady stated that Premier kept no records of efforts to obtain the EGR repair for

the specific truck at issue in this lawsuit, nor did he have any information as to

                                          4
how often or even whether this particular tractor had sought repair. He, however,

stated his belief that there were “probably” efforts every week to get repairs done

on the tractor involved in this fire. At the time of the tractor fire in August 2006,

68 to 70% of Premier’s trucks subject to the recall had been repaired. After the

fire, Volvo sent parts to Premier to allow it to do the repairs itself and Premier

finished repairing the remainder of its fleet within five weeks.

      Plaintiffs filed suit seeking to recover losses incurred as a result of the fire.

Plaintiffs alleged (1) liability under the Alabama Extended Manufacturers

Liability Doctrine (“AEMLD”), (2) breach of an implied warranty of

merchantability, (3) breach of an implied warranty of fitness for a particular

purpose, (4) negligent and/or wanton failure to warn, (5) negligent and/or wanton

design defect, (6) negligent and/or wanton construction, installation, and

manufacture, and (7) negligence and/or wantonness. Plaintiffs added a claim for

loss of use damages in their First Amended Complaint.

      Volvo filed a motion for summary judgment asserting that Premier was

contributorily negligent by failing to repair the EGR-pipe defect within the seven

months following the recall and had assumed the risk of a fire due to the defective

EGR pipes by continuing to operate the tractor without obtaining the repairs.




                                           5
       Based on the above evidence, the district court entered summary judgment

in favor of Volvo, finding that Premier had committed contributory negligence in

failing to get the necessary repairs done and had assumed the risk of a tractor fire

by continuing to operate the vehicle without complying with the safety recall. The

court noted that Premier had not provided any evidence that anyone had ever

checked this particular tractor for the warning signs prior to the fire.

       Plaintiffs filed a Motion to Alter or Amend the Judgment under Fed. R. Civ.

P. 59 or, in the alternative, for Relief from the Order under Fed. R. Civ. P. 60(b).

With their motion, Plaintiffs submitted an affidavit from the driver of the truck

that caught fire. This affidavit stated that the driver performed a pre-trip

inspection on the morning of August 22, 2006 and “did not observe any

mechanical or any other type of problems with the Volvo tractor.”4 The driver

also asserted that he never heard an increase in engine noise prior to the fire; he

heard only a “loud boom” after which he immediately pulled over. The tractor

was engulfed in flames “within seconds.” Plaintiffs offered no explanation or

excuse as to why they failed to submit this evidence earlier. The district court

refused to consider this new evidence because Plaintiffs had been given ample



       4
        We note that the affidavit did not state that the driver checked for the specific warning
signs mentioned in the recall notice.

                                                 6
time to submit evidence earlier. The district court explained that its “opinions and

orders are not meant to serve as guidelines for what evidence to submit post-dating

their entry.” The court denied the motion, and Plaintiffs timely appealed.5

                              II. STANDARD OF REVIEW

       We review de novo a district court’s grant of summary judgment, applying

the same legal standards as the district court. Hi-Tech Pharm., Inc. v. Crawford,

544 F.3d 1187, 1189 (11th Cir. 2008). Summary judgment is appropriate where

there are no genuine issues of material fact and the moving party is entitled to a

judgment as a matter of law. Wooden v. Bd. of Regents of the Univ. Sys. of Ga.,

247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed. R. Civ. P. 56(c)).

                                      III. DISCUSSION

       Under Alabama law,6 a defendant seeking summary judgment based on

contributory negligence as a matter of law “must show that the plaintiff put



       5
          The district court ruled that contributory negligence and assumption of risk defeated all
claims except for Plaintiffs’ wantonness claim, which the district court separately found
Plaintiffs had failed to establish. Plaintiffs’ appeal focuses on the allegations of contributory
negligence and assumption of risk; they have thus abandoned their wantonness claim on appeal.
See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (holding that an issue is
abandoned when an appellant fails to offer argument on that issue). They have also abandoned
their breach of warranty claims by not raising them on appeal.
       6
         Undisputedly, Alabama law applies in this action brought under diversity jurisdiction.
See McMahan v. Toto, 256 F.3d 1120, 1131-32 (11th Cir. 2001) (noting that federal courts apply
the substantive law of the forum state in a case with diversity jurisdiction).

                                                 7
himself in danger’s way and that the plaintiff had a conscious appreciation of the

danger at the moment the incident occurred.” Hannah v. Gregg, Bland & Berry,

Inc., 840 So. 2d 839, 860 (Ala. 2002). Where a defective product is involved, “[a]

plaintiff is contributorily negligent in handling a defective product when he or she

fails to use reasonable care with respect to that product.” Gen. Motors Corp. v.

Saint, 646 So. 2d 564, 568 (Ala. 1994). Normally, the occurrence of contributory

negligence is a question for the jury. Hannah, 840 So. 2d at 860. “However,

where the facts are such that all reasonable persons must reach the same

conclusion, contributory negligence may be found as a matter of law.” Id.

      Assumption of the risk is established as a matter of law where the evidence

shows “that the plaintiff discovered the alleged defect, was aware of the danger,

proceeded unreasonably to use the product, and was injured.” Sears v. Waste

Processing Equipment, Inc., 695 So. 2d 51, 53 (Ala. Civ. App. 1997).

      Here, the district court found that Premier was contributorily negligent and

assumed the risk by allowing nearly six months to pass without obtaining the

repairs described in the safety recall as necessary to avoid potential fire. Premier

behaved negligently because the recall notified Premier that a fire could occur if

the EGR pipes were not repaired, and five and a half months is an unreasonable

amount of time to avoid a needed safety repair, especially where the consequences

                                          8
association with the defect are so grave. Mr. Brady testified that he understood

that a potential for fire existed and his statement that one should comply with

safety recalls “ASAP” demonstrates that Premier understood that the danger

involved.

      Premier argues it demonstrated its reasonableness through Brady’s

testimony that showed it was attempting to obtain the repairs on all of its trucks

but was unable to do so because Volvo was experiencing a shortage of parts at its

service centers. Premier further asserts that it did not behave unreasonably

because Volvo admitted in its email that it would take “several months” to

complete the repairs on all Volvo tractors and indicated that it would be safe to

continue driving these trucks unless the EGR pipes showed cracks or soot residue

or an increase in engine noise was heard.

      Premier, however, failed to adduce evidence that it attempted to repair the

particular tractor that caught fire; all its evidence referred to its general efforts to

fix the trucks in its possession subject to the recall. In their brief, Plaintiffs assert

that “[i]t is clear that Premier did everything it could under the circumstances to

get its fleet of Volvo tractors repaired.” Nothing in the record, however, indicates

that any efforts were made to bring this specific tractor in to replace the defective

EGR parts. Without evidence that Premier attempted to fix this particular truck,

                                            9
there is nothing to refute Volvo’s assertions that Premier’s own negligence and

assumption of the risk were the proximate cause of the tractor fire.

       Premier argues that the court should infer from its evidence that it made

general efforts to repair all the trucks in its fleet and that it probably tried to fix

this particular tractor. Yet, this evidence would not help Premier. Even if we

inferred that Premier occasionally attempted to repair this truck but did not do so

because the service center would have had to obtain a back-ordered part, Premier

was still contributorily negligent. The undisputed evidence indicates that the

repairs would take between a half hour and an hour to perform and that when

Volvo service centers did not have the parts it would take approximately a day for

the part to arrive. Furthermore, in their brief to this court, Plaintiffs state that the

parts shortage “was not remedied until over one month into the recall process.”

They offered no explanation for the delay in obtaining the repair between that time

and the end of August when the fire occurred. It is unreasonable as a matter of

law to wait almost six months to obtain a safety repair that would prevent a fire in

order to avoid an hour or, at the very most a one-day, delay.

       Additionally, Premier failed to point to evidence showing that it took the

precautions Volvo advised truck owners to perform in the safety recall further

showing that it was contributorily negligent and assumed the risk that a damaging

                                            10
fire would occur.7 The safety recall stated that drivers “must” follow the

inspection instructions to look for failing EGR pipes during pre-trip inspections.

The record at summary judgment was devoid of any evidence that Premier

inspected the pipes for cracks or soot residue. The record also did not show that

the EGR-pipe defect in this truck occurred without warning signs. Thus, the

record shows that there was no genuine issue of material fact and that Premier was

contributorily negligent and assumed the risk as a matter of law.

       By failing to obtain needed repairs that it knew would prevent the very fire

that occurred and failing to take precautions necessary to allow continued truck

operation until repairs could be performed, Premier was contributorily negligent

and assumed the risk that this tractor fire would occur. This case is similar to

Sears v. Waste Processing Equip., Inc., wherein the plaintiff’s employees

continued to use a product that they knew to be defective without taking

precautions and one employee was consequently injured. 695 So. 2d at 52. In



       7
          The affidavit of the truck driver was not submitted until the Plaintiffs’ post-judgment
motion. This was the first evidence that anyone had performed a pre-trip inspection the day of
the fire and that an increase in engine noise did not precede the fire. We find no abuse of
discretion in the district court’s decision not to consider this evidence. Plaintiffs had ample
opportunity to produce this affidavit in opposition to Volvo’s motion for summary judgment and
put forth no explanation as to why they did not do so. Furthermore, in their briefs to this court,
Plaintiffs have not presented any arguments that it was improper for the court to refuse to
consider this affidavit. By not raising this issue on appeal, Plaintiffs have abandoned it. See
United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).

                                                11
Sears, the employees knew that the door to a large industrial trash compactor was

malfunctioning, and yet continued to use the compactor. Id. An employee was

injured when the defective door closed on her arm. Id. The court found that the

plaintiff was contributorily negligent and had assumed the risk as a matter of law

by failing to take reasonable precautions in using a known defective product.

Here, Premier knew the tractor was defective and needed to be repaired and yet,

from the evidence presented, it is not apparent that it took reasonable — or any —

precautions. Premier, therefore, was contributorily negligent and assumed the risk

of a tractor fire.

       A plaintiff cannot recover in a negligence or an AEMLD action where the

plaintiff’s own negligence is shown to have proximately contributed to his

damage. Tell v. Terex Corp., 962 So. 2d 174, 177 (Ala. 2007). Thus, Premier’s

contributory negligence bars recovery on Plaintiffs’ claims for negligence and

violations of the AEMLD.

                                 CONCLUSION

       For the foregoing reasons, we AFFIRM the ruling of the district court.




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