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United States Court of Appeals for the Fifth Circuit
June 25, 1984
[*1085] RANDALL, Circuit Judge:
In this Texas diversity case, plaintiffs-appellants Alfred and Vida Nelson appeal from a summary judgment rendered against them in their products liability suit against International Paint Company, Inc., defendant-appellee, a New Jersey corporation. Finding that there is no genuine issue as to any material fact, we affirm the district court's grant of summary judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Alfred Nelson was injured on June 30, 1978, when he inhaled toxic fumes while painting over a weld at a construction site in Kodiak, Alaska. Nelson alleges that his injury was caused [**2] by defectively designed paint.
At the time that he was injured, Nelson was using a marine anti-fouling paint known as "Inter-Trop Red 50." The label on the paint can Nelson was using carried the name "International Paint Company, Inc.," and listed addresses for the company in New York, New Orleans, and San Francisco. Also present on the label was the trademark "International Paint Company."
Shortly after his injury, Nelson returned home to Texas, where he employed Texas counsel to file a products liability action against the manufacturer of the paint. The Texas counsel contacted an Alaska attorney, [*1086] and arranged for him to sue the manufacturer and distributor of the paint in the courts of that state. That attorney left Alaska before the suit was filed, but an associate in his firm brought suit in Alaska state court in April, 1980, naming among the defendants International Paint Company, Inc. ("IPCO"), and International Paint Co. (California), Inc. ("CALCO"), IPCO's wholly-owned subsidiary, which is headquartered in San Francisco. However, because of Nelson's ill-health, and their concern that the new Alaska counsel was inexperienced, the Nelsons directed that a [**3] voluntary non-suit be taken in the Alaska court.
The Nelsons then filed suit against IPCO in the court below on May 15, 1980. They sought damages on the basis of strict liability in tort and breach of implied warranty. They contended that the paint was defectively designed and that its label failed to warn adequately of the hazards associated with using Inter-Trop Red 50.
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734 F.2d 1084 *; 1984 U.S. App. LEXIS 21147 **; CCH Prod. Liab. Rep. P10,126
A. G. NELSON and Vida Nelson, Plaintiffs-Appellants, v. INTERNATIONAL PAINT COMPANY, INC., Defendant-Appellee
Subsequent History: [**1] Rehearing En Banc Denied July 26, 1984.
Prior History: Appeal from the United States District Court for the Western District of Texas.
manufacturer, paint, subsidiary, label, injuries, summary judgment, Products, alter ego, district court, trademark, formula, restaurant, venue, bottle, bring suit, contractor, courts, stool
Torts, Products Liability, Theories of Liability, Strict Liability, Business & Corporate Law, Piercing the Corporate Veil, Alter Ego, General Overview, Shareholder Duties & Liabilities, Family Law, Family Relationships & Torts, Real Property Law, Torts, Vicarious Liability, Corporations, Subsidiary Corporations, Contracts Law, Affirmative Defenses, Fraud & Misrepresentation, Tax Law, C Corporations, Consolidated Returns & Liability, Consolidated Returns, Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Types of Defects, Design Defects, Judgments, Burdens of Proof