The opinion of the court was delivered by: MARSH
This matter comes before the court on plaintiffs' "Motion for Hearing, Reconsideration and Vacation of Order Granting Summary Judgment," filed with this member of the court on June 26, 1981.
On June 22, 1981, this court entered an Opinion and Order granting the defendant, Caterpillar Tractor Company's, motion for summary judgment in the case of Brown v. Caterpillar Tractor Company. Also, on June 22, 1981, a companion order was issued granting the defendant, Caterpillar Tractor Company's, motion for summary judgment in the case of Baird v. Caterpillar Tractor Company. This companion order adopted this court's opinion in Brown v. Caterpillar Tractor Company.
The court held a hearing to reconsider its Opinion and Order granting defendant's motion for summary judgment on July 14, 1981. After oral argument and consideration of the affidavits of Dr. James P. Romualdi, plaintiffs' expert witness, and the voluminous documentation submitted in support of said affidavits in both the Brown and Baird cases, the court makes the following findings of fact:
1. Page B49a of the Government's contract provides for modification and/or removal and/or obliteration of any markings not authorized. Plaintiff asserts that Caterpillar should have placed a warning sign on the tractor, that said tractor should not be used for tree clearing operations since such operation might cause injury to the driver or passenger riding on the tractor. No such warning was required by the contract and any such warning would not have been in compliance with the contract.
2. Exhibit E of the contract specifically lists the nomenclature of the "Overpack Kit For Tractor . . . ." No canopy is listed, nor is anything which would remotely be interpreted as a canopy or overhead protective device or roll over protective structure (ROPS) listed.
3. "Additional Modifications to Military Specification MIL-T-52270A Dated 7 November 1966" does not list a canopy, overhead protective structure, or roll over protective structure as a modification for the tractor in question.
4. "Test Method No. 37" entitled "Clearing"
specifically states in the test procedure that the tester was to "mount the Government-Loaned canopy and engine guards." This indicates (a) the bulldozer as called for by the specifications was not to have a canopy; (b) if and when the Government determined a canopy was necessary, a "Government-Loaned canopy" would be supplied for use; and (c) the Government knew of the dangers involved and did not specify the need or the desire for a canopy except at the Government's insistence.
5. The "Military Specification of 7 November 1966-MIL-T-52270A" does not list a canopy. Section 3.6 of said Specification regarding "Safety" indicates "(All) moving parts which are of such nature or so located as to be a hazard to operating personnel shall be enclosed or guarded." However the Specification goes on to read "(Protective) devices shall not impair the operating functions." It is the court's opinion that upon interpretation of the above quoted language a canopy would have impaired the military operation and functions of the tractor by restricting the operator's field of view.
6. Section 3.18.1 entitled "Seats" of the above-referred to Military Specification relates to the operator's seat and states nothing with respect to a canopy or the need for a canopy although it describes the seat of the tractor extensively.
7. Section 3.27.1 entitled "Instruction plates" sets forth the following: "a tractor shall be equipped with instruction plates or diagrams, including warnings and cautions, describing any special or important procedures to be followed in assembling, operating, or servicing the tractor." The plaintiffs have argued that the tractor should have had a warning plate indicating that the tractor should not be used for tree clearing operations. However, the court has found nothing in the contract or specifications which would require such a warning plate.
8. Section 3.32 of the Military Specification referred to above provides for a "Rifle case." The fact that the tractor was to be supplied with a rifle case indicates the Government's desire to use the tractor for Military applications and in particular for the Vietnam war, a conflict which was in progress during the time period pertinent to this contract. The need for the rifle case is a clear indication that the Government did not desire a canopy on a tractor. Such a canopy would have interfered with the military operation and function of the tractor.
9. Section 4.6.1 entitled "Examination of the Military Specification referred to above provides for an "Examination Schedule." In this schedule specific defects are listed. None of the 60 odd defects listed indicate that the tractor would be rejected by the Government should there not be a canopy on the tractor. Strict compliance with this examination schedule shows that the Government did not consider the absence of the canopy ...