Jeffrey Hodges v. Federal-Mogul Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1333
JEFFREY S. HODGES; TOMMY LEE BONDS; JOHN PAUL SPANGLER,
Plaintiffs – Appellants,
v.
FEDERAL-MOGUL CORPORATION; Q-TECH EQUIPMENT & SERVICES OF
THE CAROLINAS, L.L.C.; CARRINGTON ENGINEERING SALES CO.;
CARRINGTON ENGINEERING SALES; DUSTEX CORPORATION; THE KIRK
& BLUM MANUFACTURING COMPANY; K&B DUCT,
Defendants - Appellees,
and
CARRINGTON ENGINEERING SALES COMPANY, LLC; CECO
ENVIRONMENTAL CORPORATION,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:12-cv-00362-MFU-RSB)
Argued: May 12, 2015 Decided: July 8, 2015
Before MOTZ, KING, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Edward Kyle McNew, MICHIEHAMLETT, PLLC, Charlottesville,
Virginia, for Appellants. Monica Taylor Monday, GENTRY, LOCKE,
RAKES & MOORE LLP, Roanoke, Virginia, for Appellees. ON BRIEF:
Neal Stanley Johnson, JOHNSON LAW PLC, Roanoke, Virginia; Peter
Brent Brown, BROWN & JENNINGS PLC, Roanoke, Virginia, for
Appellants. Guy M. Harbert III, James J. O’Keeffe IV, Daniel R.
Sullivan, GENTRY LOCKE RAKES & MOORE LLP, Roanoke, Virginia, for
Appellee Federal-Mogul Corporation; David Drake Hudgins, HUDGINS
LAW FIRM, Alexandria, Virginia, for Appellee Dustex Corporation;
Bevin Ray Alexander, Jr., James Barrett Lucy, FREEMAN, DUNN,
ALEXANDER, GAY, LUCY & COATES, P.C., Lynchburg, Virginia, for
Appellees Q-Tech Equipment & Services of the Carolinas, L.L.C.
and Carrington Engineering Sales Co.; Donald Edward Morris, LAW
OFFICES OF ANTONY K. JONES, Richmond, Virginia, for Appellees
The Kirk & Blum Manufacturing Company and K&B Duct.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Jeffrey S. Hodges, Tommy Lee Bonds, and John Paul Spangler
(the “plaintiffs”) sustained serious injuries on December 31,
2010, from a fire that occurred while they were cleaning
aluminum dust from a production facility in Blacksburg,
Virginia. The plaintiffs commenced this civil action in the
Western District of Virginia on August 6, 2012, seeking to
recover damages on claims that defective and unreasonably
dangerous safety equipment had caused their injuries. The
defendants — including appellees Federal-Mogul Corporation
(“Federal-Mogul”); Q-Tech Equipment & Services of the Carolinas,
L.L.C. and Carrington Engineering Sales Co. (together,
“Carrington”); Dustex Corporation (“Dustex”); and The Kirk &
Blum Manufacturing Company and K&B Duct (together, “K&B”)
(collectively, the “defendants”) — played various roles in the
design, manufacture, installation, and maintenance of the safety
equipment. Following discovery, the defendants moved to exclude
the opinions of the plaintiffs’ proposed experts under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
for summary judgment. 1 For reasons set forth in its Memorandum
1
When the summary judgment and Daubert motions were filed,
two additional named defendants — Carrington Engineering Sales
Company, LLC and CECO Environmental Corporation — had already
been dismissed. The plaintiffs do not challenge those
dismissals.
3
Opinion of March 7, 2014, the district court granted the Daubert
motions and awarded summary judgment to the defendants. See
Hodges v. Federal-Mogul Corp., No. 7:12-cv-00362 (W.D. Va. Mar.
7, 2014), ECF No. 149 (the “Opinion”). 2 In this appeal, the
plaintiffs contest solely the summary judgment awards. As
explained below, we vacate and remand.
I.
A.
The fire underlying this civil action occurred in a
production facility (the “facility”) owned and operated by
Federal-Mogul in Blacksburg, where it manufactures automotive
bearings. 3 In 2002 and 2003, Federal-Mogul added an aluminum
bonding line that involved sanding and brushing aluminum and
steel strip. A byproduct of those operations is aluminum dust,
which is highly combustible. Federal-Mogul installed a dust
collection system to safely remove and dispose of the aluminum
dust (the “dust collection system”). The dust collection system
2 The district court’s unpublished Opinion is found at J.A.
4160-93. (Citations herein to “J.A. __” refer to the contents
of the Joint Appendix filed by the parties in this appeal.)
3 We recite the facts in the light most favorable to the
plaintiffs, as the nonmoving parties. See Covol Fuels No. 4,
LLC v. Pinnacle Mining Co., LLC, 785 F.3d 104, 106 n.2 (4th Cir.
2015).
4
utilized fans to capture the dust and transport it through
ductwork located along the facility’s ceiling. The ductwork
extended through an exterior wall, turned at a right angle, and
ultimately disposed of the dust in a structure outside the
facility that was called a “baghouse.” Also connected to the
ductwork was a rectangular damper box (the “back-blast damper”)
that was mounted to the facility’s exterior wall. Inside the
back-blast damper was a damper door, which was hinged at the
top. If the explosive dust in the baghouse ignited, the back-
blast damper was supposed to prevent the fire from entering the
facility through the ductwork.
In 2010, Federal-Mogul initiated “a dust mitigation effort
in its plants worldwide,” and hired LCM Corporation (“LCM”) to
inspect and remediate the Blacksburg facility. See J.A. 116.
On December 30, 2010, LCM employees — including plaintiffs
Hodges and Bonds — performed an inspection of the facility and
discovered that three to five inches of dust had accumulated in
the ductwork above the aluminum bonding line. The following
day, Hodges and Bonds returned to the facility with plaintiff
Spangler to clean that ductwork. Unaware that the dust was
combustible, the plaintiffs wore flammable Tyvek suits.
Hodges and Bonds mounted a scissor lift to reach the
ductwork, approximately twenty to thirty feet from the ground.
They extracted the dust with a vacuum hose connected to a truck
5
located just outside of the facility. Spangler operated the
truck, which ran idly and controlled the power of the vacuum
hose. After cleaning the portion of the ductwork that faced
inside the facility, Hodges and Bonds turned around and began
cleaning the portion of the ductwork facing the baghouse. They
were then approximately twenty feet from the exterior wall, and
Hodges held both a flashlight and the vacuum hose, while Bonds
stood behind Hodges and helped him control the hose.
Using the flashlight, Hodges looked into the ductwork,
toward the baghouse. He saw several inches of accumulated dust
that “kind of varied” in height “and went all the way back out
to outside the building.” See J.A. 2312. Hodges was able to
see into the back-blast damper and past the damper door, which
was partially propped open by dust. As Hodges and Bonds cleaned
the second section of the ductwork, they had trouble
manipulating the hose and reaching the dust, and also felt
shocks of static electricity. As a result, Hodges and Bonds
duct-taped a PVC extension to the hose to lengthen and stabilize
it. In order to reduce the static electricity, Hodges asked
Spangler to go outside to the vacuum truck and decrease its
power. Spangler obliged and began walking to an exit door that
was propped open, heading toward the direction of the baghouse.
At that time, an explosion occurred and fire spread through
the ductwork. Hodges saw “a flash of a fireball” emanate from
6
outside the facility beyond the back-blast damper, coming toward
him. See J.A. 2312. Spangler, having nearly reached the exit,
saw a “bright white light” that “came at [him] from the front.”
Id. at 2675. The baghouse exploded, and flames spewed out of
the ductwork. The Tyvek suits donned by Hodges and Bonds
promptly caught fire, as did Spangler’s hat. All three
plaintiffs sustained serious injuries.
B.
1.
After commencing this civil action in the Western District
of Virginia on August 6, 2012, the plaintiffs filed their
operative Amended Complaint on December 26, 2012. The Amended
Complaint alleges seven causes of action:
• Count I is brought against Federal-Mogul, alleging
that the company was negligent in numerous respects,
including its role in the design and installation of
the dust collection system. In addition, Count I
asserts that Federal-Mogul negligently failed to
perform routine maintenance on the system.
• Counts II and III are against Carrington, the
company that sold and installed the dust collection
system to Federal-Mogul. Count II alleges that
Carrington breached several warranties by supplying
Federal-Mogul with a blast-back damper that was
defective and not fit for its particular purpose.
Count III raises a negligence claim, asserting that
Carrington negligently designed and installed the
dust collection system so that the airflow in the
system was too weak to prevent dust from
accumulating in the ductwork and back-blast damper.
• Counts IV and V allege warranty and negligence
claims against Dustex, which designed and
7
manufactured the baghouse. Those counts assert that
Dustex designed the baghouse in an unsafe manner,
without sufficient venting to prevent an explosion
in the baghouse from entering the facility.
• Counts VI and VII name K&B, which designed and
manufactured the back-blast damper. Those counts
raise warranty and negligence claims, respectively,
alleging that the damper door failed to prevent the
fire from passing through the back-blast damper and
into Federal-Mogul’s facility, and that K&B
negligently designed the back-blast damper.
Following the completion of discovery, the defendants filed
their Daubert motions as well as the summary judgment motions at
issue in this appeal. The plaintiffs maintained that the fire
originated in the baghouse and travelled through the ductwork
and into the facility, passing through the back-blast damper.
To show that the fire started outside of the facility and
travelled into it, the plaintiffs relied heavily on Hodges’s
deposition evidence that he personally observed the fireball
emanate toward him from outside the facility. That evidence,
the plaintiffs maintained, was corroborated by other evidence of
record, including, inter alia: Spangler’s deposition testimony
that he saw a bright flash and felt a blast coming from the
direction of the baghouse; surveillance video footage that
showed changes in lighting and shadows as the events unfolded;
and pictures of the ductwork and the baghouse taken following
the fire.
8
In addition, the plaintiffs relied on their two experts,
Patrick McGinley and Martin Schloss, who offered opinions on
three issues. First, both opined that the fire was caused by an
exothermic reaction (or, a spontaneous combustion) in the
baghouse resulting from aluminum dust interacting with
condensation (the “causation opinions”). Second, both McGinley
and Schloss — relying on Hodges’s deposition evidence — opined
that the fire originated in the baghouse and then spread through
the back-blast damper and into the facility’s ductwork (the
“origin opinions”). Third, Schloss opined that defects in the
dust collection system permitted the fire to enter the facility,
thus causing the plaintiffs’ injuries (the “defect opinion”).
According to Schloss’s defect opinion, the baghouse was designed
and manufactured with insufficient venting, failing the safety
standards established by the National Fire Protection
Association (the “NFPA”). 4 As a result, if a combustion occurred
in the baghouse, the structure could not release the pressure in
a controlled manner. The defect opinion further concluded that
the back-blast damper was defectively designed and constructed,
failing the NFPA standards because it was improperly welded and
4The NFPA is a private, professional organization that
“among other things, publishes product standards and codes
related to fire protection.” Allied Tube & Conduit Corp. v.
Indian Head, Inc., 486 U.S. 492, 495 (1988).
9
made from the wrong gauge of steel. As a result, the back-blast
damper was unable to withstand the expected pressures.
In support of their summary judgment motions, the
defendants pursued several contentions, including that the
plaintiffs could not sufficiently prove proximate cause, and
that the plaintiffs’ contributory negligence barred any
recovery. Relevant here, the defendants disputed the
plaintiffs’ theory of how and where the fire started.
Specifically, they maintained that the fire was caused by the
static electricity that the plaintiffs encountered when
manipulating the vacuum hose in the ductwork. That is, the
defendants posited that the fire originated inside the facility
and then spread through the ductwork in both directions — to
where Hodges and Bonds were standing and also outside to the
baghouse, which was destroyed. In that scenario, the dust
collection system did not malfunction or contribute in any way
to the plaintiffs’ injuries.
In arguing that the plaintiffs could not show a genuine
dispute of material fact, the defendants maintained that certain
of the plaintiffs’ evidence should be rejected. To that end,
the defendants relied on their Daubert motions to exclude
McGinley’s and Schloss’s opinions. The defendants further
asserted that no consideration should be given to Hodges’s
deposition testimony that the fire began outside of the
10
facility. Hodges had testified that he recalled the damper door
being hinged “from the center,” allowing him to “see over the
top of it from the center up.” See J.A. 2373. It is
undisputed, however, that the damper door actually hinged at the
top, which means that Hodges would have been unable to see “over
the top of it.” Id. Thus, the defendants urged that Hodges’s
evidence was necessarily inaccurate. The defendants maintained
that, absent their expert opinions or Hodges’s evidence, the
plaintiffs could not show a genuine dispute of material fact,
and thus could not survive summary judgment.
2.
In its March 7, 2014 Opinion, the district court first
addressed the Daubert challenges to the causation and origin
opinions, finding each set of opinions insufficiently reliable.
The causation opinions were rejected because the court found
that they were based on nothing more than “conjecture that
conditions conducive” to an exothermic reaction were present.
See Opinion 11. With respect to the origin opinions, the court
observed that both McGinley and Schloss relied heavily on
Hodges’s deposition testimony, which — as is further explained
below — the court deemed to be “physically impossible
testimony.” Id. at 22. The court concluded that the experts’
misplaced reliance on Hodges indicated that the origin opinions
were premised on “advocacy” rather than “on scientific
11
methodology.” Id. The court failed to address Schloss’s defect
opinion or directly assess the Daubert motions as they related
thereto. The court, however, ruled that “[t]he opinions offered
by plaintiffs’ experts . . . are . . . inadmissible under Rule
702,” excluding the expert opinions in their entirety. Id. at
34.
Next, the district court turned to the summary judgment
motions, applying Virginia’s substantive law. The court
observed that the viability of the plaintiffs’ claims depended
on whether they could show that the fire originated outside of
the facility. See Opinion 26. Assessing the evidence relied on
by the plaintiffs, the court first considered Hodges’s
deposition testimony that he was able to see the fireball enter
the facility from beyond the damper door. The court scrutinized
his statement that “I could see over the top of [the damper
door] from the center up,” see J.A. 2373, in light of the
parties’ agreement that the damper door hinged at the top. The
court then determined that Hodges’s testimony was “physically
impossible,” and therefore “does not provide any basis for a
jury to do anything but speculate” that the fire began outside
of the facility. See Opinion 27. Accordingly, the court
discredited Hodges’s testimony. Id. (citing Feliciano v. City
of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013)).
12
Turning to the remainder of the plaintiffs’ evidence —
Spangler’s deposition testimony, the surveillance footage, and
the post-accident pictures — the district court concluded that
none of it provided a nonspeculative basis to find that the fire
originated outside of the facility. Overall, the court
determined that, “[a]t most, plaintiffs’ evidence taken together
and viewed in the light most favorable to them, leaves the jury
completely at sea as to the cause and origin of the fire and
explosion in this case.” See Opinion 29. According to the
court, the plaintiffs had not satisfied their burden, under
Virginia law, to establish their claims “beyond the realm of
‘conjecture, guess, or random judgment upon mere supposition.’”
Id. at 30 (quoting Chesapeake & O. Ry. Co. v. Whitlow, 51 S.E.
182, 184 (Va. 1905)). Thus, the court determined that the
defendants were entitled to summary judgment on each claim
alleging design and manufacturing defects in the back-blast
damper and baghouse.
Finally, the district court addressed the plaintiffs’ sole
non-product-defect theory of liability: that Federal-Mogul was
negligent by failing to protect the plaintiffs from the known
dangers of aluminum dust. The court determined that, as a
matter of law, Federal-Mogul acted reasonably in seeking out
LCM, an expert in hazardous waste removal, and “in assuming LCM
and the plaintiffs, as hazardous waste removal experts, would
13
determine both the substance they were dealing with and the
proper method for removing it.” See Opinion 33. The court
accordingly concluded that Federal-Mogul was entitled to summary
judgment on all theories of negligence.
The plaintiffs have timely noticed this appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s award of summary
judgment. See Desmond v. PNGI Charles Town Gaming, LLC, 630
F.3d 351, 354 (4th Cir. 2011). In so doing, “we are required to
view the facts and all justifiable inferences arising therefrom
in the light most favorable to the nonmoving party, in order to
determine whether there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 312-13 (4th Cir.
2013) (internal quotation marks omitted). A fact is material if
it “‘might affect the outcome of the suit under the governing
law.’” Henry v. Purnell, 652 F.3d 524, 548 (4th Cir. 2011) (en
banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)).
14
III.
A.
On appeal, the plaintiffs contend that the district court
erred in concluding that they had not shown a genuine factual
dispute regarding the fire’s origin, and thus improperly awarded
summary judgment to the defendants. To prevail on their claims,
the plaintiffs must establish that the fire originated outside
of the facility — only then could the alleged defects in the
dust collection system have caused their injuries. See Br. of
Appellants 13 (“If [the fire] started inside [the facility],
then the Plaintiffs lose.”); see also Logan v. Montgomery Ward &
Co, Inc., 219 S.E.2d 685, 687-88 (Va. 1975) (explaining that, in
product liability actions involving negligence and warranty
claims, Virginia law requires plaintiff to show that defendant’s
breach of duty to plaintiff was proximate cause of plaintiff’s
injuries). It is undisputed that Hodges’s testimony — if
credited — could support a reasonable inference that the fire
began outside of the facility. It is also undisputed that
Hodges’s testimony recalling that “it looked like [the damper
door] pivoted from the center,” allowing him to “see over the
top of [the door] from the center up,” see J.A. 2373, was not
physically possible, as the damper door hinged from the top.
Where a witness’s deposition testimony “is blatantly
contradicted by the record, so that no reasonable jury could
15
believe it,” an alleged factual dispute created by the testimony
need not be credited and “will not defeat an otherwise properly
supported motion for summary judgment.” Scott v. Harris, 550
U.S. 372, 380 (2007) (internal quotation marks omitted). On
this record, however, we are satisfied that Hodges’s evidence
regarding the fire’s origin was not physically impossible and
thus should have been credited for summary judgment purposes.
Importantly, Hodges wavered and qualified his description
of the damper door’s configuration. Although the district court
focused on Hodges’s statement that he saw “over the top of” the
door, the record reveals that Hodges was actually quite
uncertain:
Q [Did the damper door have] a hinge at the top?
A I don’t know. I know that I could see the [damper
door] that was in there and to me it looked like it
pivoted from the center, but I don’t know.
Q That’s what I’m trying to find out. Where you saw
that could you see a gap on the side, the top or the
bottom?
A I could see over the top of it from the center up.
***
Q So, [the damper door] looked like to you that it
hinged on the top and opened up at the bottom?
A It hinged. I don’t know for sure if it was the top
or the side, but it . . . hinged somewhere inside the
pipe.
J.A. 2373, 2391 (emphasis added). Hodges’s testimony was thus
inconsistent about where the damper door was hinged. Viewing
16
the facts in the plaintiffs’ favor, Hodges was most assuredly
unsure about the damper door’s configuration, and his testimony
could not be rejected as a matter of law.
Additionally, the record does not blatantly contradict
Hodges’s testimony that he saw through the propped-open damper
door and observed the fire emanate from outside the facility.
The damper door was circular in shape and held open by several
inches of dust. Openings would have formed from the base of the
ductwork and up along both sides of the damper door. Other
openings could also have existed underneath the damper door,
given that the dust was not uniform in height. Hodges could
well have seen through those openings around the damper door.
In fact, Hodges described — correctly — a bend in the section
of ductwork connecting the back-blast damper to the baghouse,
see J.A. 2313, supporting the plaintiffs’ position that Hodges
could see past the damper door. Given that Hodges was able to
view the ductwork past the black-blast damper, he certainly
would have been able to observe the bright “flash” of a
“fireball” enter into the facility in the dark and dusty
ductwork. Id. Therefore, even if Hodges was mistaken in his
description of the damper door’s configuration, it was not
physically impossible for him to have seen the fire emanate from
beyond the back-blast damper.
17
Overall, the issue raised by Hodges’s testimony that he saw
over the top of the damper door is an issue of credibility, and
the district court erred by assessing Hodges’s credibility and
rejecting his evidence at the summary judgment stage. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(“Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, [when] he is ruling on a motion
for summary judgment . . . .”). Rather, the inconsistencies and
possible errors in Hodges’s testimony should be considered and
resolved by a jury. See United States v. Harris, 995 F.2d 532,
535 (4th Cir. 1993) (“[J]urors using common sense and their
faculties of observation can judge the credibility of an
eyewitness identification, especially since deficiencies or
inconsistencies in an eyewitness’s testimony can be brought out
with skillful cross-examination.”). Viewing the evidence of
record in the plaintiffs’ favor — as we must — we are satisfied
that Hodges’s testimony creates a genuine issue of whether the
fire originated outside of the facility. 5
5Because Hodges’s evidence is sufficient to create a
genuine issue on whether the fire started outside of the
facility, we need not analyze whether Spangler’s testimony or
the surveillance video would similarly create a genuine issue.
The plaintiffs primarily rely on that evidence to corroborate
Hodges. See Br. of Appellants 18-19 (arguing that Spangler’s
(Continued)
18
B.
The next issue is whether, as the defendants argue, the
district court’s summary judgment awards should be affirmed on
an alternative ground. See Hegna v. Islamic Republic of Iran,
376 F.3d 226, 232 n.3 (4th Cir. 2004) (recognizing that we are
“entitled to affirm the district court’s judgment on [an]
alternative ground” that was raised by the parties in the
district court and is apparent from the record). More
specifically, the defendants assert that, even if the court
erred and Hodges’s testimony is sufficient to show the fire
started outside of the facility, the plaintiffs have not proven
a genuine factual issue concerning whether the alleged defects
in the dust collection system proximately caused the plaintiffs’
injuries.
Notably, the parties dispute whether the district court
ruled on proximate cause. The defendants maintain that the
court made such a ruling when it concluded that there was
“simply no proof of a defect in the baghouse or damper that
caused plaintiff’s injuries beyond the realm of conjecture,
guess, or random judgment upon mere supposition.” See Opinion
30 (internal quotation marks omitted). But that statement of
testimony and video evidence “buttress[]” and are “corroborative
of Hodges’s testimony”).
19
the court followed — and was explicitly made “[i]n light of” —
its conclusion that the plaintiffs had produced no evidence
showing that the fire started outside the facility. See id. at
29.
The Opinion therefore does not assess whether the sum of
the plaintiffs’ evidence — including Hodges’s testimony — could
lead a reasonable jury to conclude that any one or more of the
defendants proximately caused the plaintiffs’ injuries. In
these circumstances, we decline to resolve that issue in this
appeal, in light of “the general rule . . . that a federal
appellate court does not consider an issue not passed upon
below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). 6 The
proximate cause analysis is highly complex, and given that it
was not thoroughly briefed on appeal, the district court is
better suited to address that issue in the first instance. See
Goldfarb v. Mayor of Balt., __ F.3d __, __ (4th Cir. 2015) (“The
6We also decline to affirm the summary judgment awards on
an alternative ground because of two aspects of the district
court’s rulings on the Daubert motions. First, the scope of the
court’s rulings is unclear because it failed to address
Schloss’s defect opinion. Nevertheless, the court broadly
purported to exclude the entirety of the expert opinions.
Second, and perhaps more important, the court determined that
the origin opinions were unreliable in part because both
McGinley and Schloss relied on Hodges’s evidence. In light of
our conclusion that Hodges’s evidence was erroneously
discredited and not viewed in the light most favorable to the
plaintiffs, the court’s exclusion of the origin opinions may
well warrant a full reassessment.
20
district court is in a better position to consider the parties’
arguments in the first instance, which can be presented at
length rather than being discussed in appellate briefs centered
on the issues the district court did decide.”).
IV.
Pursuant to the foregoing, we vacate the summary judgment
awards and remand for such other and further proceedings as may
be appropriate.
VACATED AND REMANDED
21