___________

 No. 96-3004 

____________

Arkwright Mutual Insurance *

Company, a Massachusetts *

corporation; Insurance Company *

of North America, a *

Pennsylvania corporation, *

*

 Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the 

* District of North Dakota.

Gwinner Oil, Inc., a North *

Dakota corporation; Commonwealth *

Petroleum Co., an Ohio *

Corporation; Gwinner Propane *

Inc., an Ohio corporation, *

*

 Defendants - Appellees. *

___________

 No. 96-3223

___________

Arkwright Mutual Insurance *

Company, a Massachusetts *

corporation; Insurance Company *

of North America, a *

Pennsylvania corporation, *

*

 Plaintiffs - Appellees, *

*

v. *

*

Gwinner Oil, Inc., a North *

Dakota corporation, *

*
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 Defendant, *

*

Commonwealth Petroleum Co., an *

Ohio corporation; Gwinner *

Propane, Inc., an Ohio *

corporation, *

*

 Defendants - Appellants.*

___________

No. 96-3227

___________

Arkwright Mutual Insurance *

Company, a Massachusetts *

corporation; Insurance Company *

of North America, a *

Pennsylvania corporation, *

*

 Plaintiffs - Appellees, *

*

v. *

*

Gwinner Oil, Inc., a North *

Dakota corporation, *

*

 Defendant - Appellant, *

*

Commonwealth Petroleum Co., an *

Ohio corporation; Gwinner *

Propane, Inc., an Ohio *

Corporation, *

*

 Defendants. *

___________

 Submitted: June 9, 1997

 Filed: September 19, 1997

___________
*The HONORABLE ANDREW W. BOGUE, United States District

Judge for the District of South Dakota, sitting by

designation.

The Honorable Rodney S. Webb, Chief Judge, United States

1

District Court for the District of North Dakota.

-3-

Before MURPHY and HEANEY, Circuit Judges, and BOGUE, District Judge. *

___________

BOGUE, Senior District Judge.

This case arises out of an explosion and fire in Gwinner, North

Dakota at The Melroe Company’s manufacturing plant, on January 31, 1993.

The plaintiffs, Arkwright Mutual Insurance Company and Insurance Company

of North America were Melroe’s property insurers at the time of the

explosion. They brought this subrogation action in their own names against

the defendants, Gwinner Oil Company and Gwinner Propane, Inc., for

negligence in delivering liquid propane to their insured, Melroe.

Defendant Commonwealth Petroleum Company is the parent company of Gwinner

Propane and was named as a defendant for its alleged negligent training and

supervision of Gwinner Propane’s employees. The district court entered

1

judgment against the plaintiffs upon a jury verdict assessing more than 50%

of the fault for the loss to Melroe. The plaintiffs appeal from that

verdict and judgment asserting several points of error. We affirm.

I.

Melroe is a large industrial company which manufactures “Bobcat” skid

steer loaders at its factory in Gwinner, North Dakota for shipment to

customers worldwide. Melroe uses large amounts of liquid propane to heat

its manufacturing facility and power its 
-4-

factory utility vehicles. In fact, during the winter months, Melroe

consumes approximately 30,000 gallons of propane per week. At the time of

the accident, Melroe was storing nearly 100,000 gallons of propane in a

storage and delivery system located on its property. This system consisted

of five large tanks--four with 30,000 gallon capacities each, and one with

a 15,000 gallon capacity. These five containers were interconnected with

a series of pipes called a “manifold” which enabled all of the containers

to operate together as one storage system. Each tank had its own shut-off

valve, however, so that any one tank could be shut off or isolated from the

rest of the system. With all of the valves open, a properly manifolded

system maintains a relatively equal level of propane in all of the tanks

as the propane is consumed. The liquid level in the tanks can vary widely,

however, due to the peculiar properties of liquid propane. As the

temperature rises, liquid propane expands. A small increase in temperature

can cause a large volume expansion within the tanks. If a tank is

overfilled, and the propane then expands with an increase in temperature,

hydrostatic pressure begins to build within the tank which, without some

mechanism for releasing excess pressure, could become great enough to

rupture the tank. To prevent such an event, each of Melroe’s tanks were

equipped with two pressure relief valves designed to vent propane into the

atmosphere if the pressure inside the tanks reached unusually high levels.

By regulation, all of the relief valves were required to be fitted with

caps to prevent rain, snow, ice, etc. from blocking the vents and causing

the valves to fail.

Melroe contracted with Gwinner Propane to supply its great demand for

propane. Because Gwinner Propane did not have a delivery truck large

enough to transport the bulk propane required by Melroe, Gwinner Propane

contracted with Gwinner Oil whereby Gwinner Oil used its fuel transporter

to make propane deliveries 
-5-

from Gwinner Propane’s rail siding to Melroe’s plant. Melroe’s fuel was

supplied on an “as needed” basis. Gwinner Propane’s manager, Daniel

Enderson, monitored Melroe’s fuel levels and decided when to deliver

propane, and in what amounts. Marshall Johnson drove Gwinner Oil’s fuel

transporter. Although he was an employee of Gwinner Oil, he took

instructions from Enderson relative to the Melroe deliveries.

On January 25, 1993, at Enderson’s direction, Marshall Johnson made

another delivery of fuel to Melroe. Before pumping the nearly 9,000

gallons of propane into the manifold, Johnson noticed the 15,000 gallon

tank was registering 97% full--a dangerously high level. Johnson called

Enderson to report the overfull tank. Enderson instructed Johnson to close

the shut-off valves to the 15,000 gallon tank, deliver the fuel to the

system and reopen the valves to the tank. Johnson followed these

instructions and the delivery was made without incident. Upon learning of

the overfull tank, Enderson placed a telephone call to Melvin Adolfs, the

maintenance foreman at Melroe, and informed him that the tank was

registering 97% full. Adolfs in turn conveyed the information to Jerry

Johnson, Melroe’s maintenance coordinator, and to Mark Hardebeck, Melroe’s

maintenance worker in charge of the propane system. No one took measures

to correct the problem. On January 27, Marshall Johnson returned to Melroe

with another 9,000 gallons of propane. When he informed Enderson that the

small tank was still 97% full, Enderson instructed him to follow the same

delivery procedure as that of two days earlier. On January 29, Johnson was

instructed to pump another 9,000 gallons of propane into the system

following the same procedures, despite that the 15,000 gallon tank was

still registering 97% full. After Enderson’s initial call to Melroe

regarding the overfull tank, no more calls were made to inform them the

tank was still full. As of the January 29 delivery, no one had taken any

measures to correct the problem.
-6-

By January 31, the outside temperatures had warmed from below zero

to above freezing Fahrenheit. At about 6 a.m. on the morning of January

31, the 15,000 gallon tank ruptured and began releasing its contents. The

ensuing explosion and fire caused nearly $2 million in damage to the Melroe

plant and surrounding neighborhood. As Melroe’s insurers, the plaintiffs

bore the bulk of this loss.

At trial, the plaintiffs theory was that Marshall Johnson overfilled

the tank, closed its shut-off valves, and left them closed for a week,

thereby isolating the tank from the rest of the system. Moreover, because

the rain caps were missing from the pressure relief vents, they became

blocked with snow and ice preventing them from releasing excess pressure.

The overfilled isolated tank, they argued, combined with a dramatic rise

in temperatures, created tremendous hydrostatic pressure inside the tank

which ultimately caused the tank to fail at pressure levels much higher

than it was designed to withstand. The plaintiffs presented evidence to

support their theory that the defendants knew the rain caps were missing,

knew the tank was dangerously overfull, did nothing to alleviate the

problem, and in fact, added fuel to an extremely dangerous manifold system.

The plaintiffs maintained that the defendants’ fault far exceeded that of

Melroe’s because the defendants breached their duty to either inspect

Melroe’s storage system or shut off the supply of propane once it obtained

knowledge that the system was unsafe. 

The defendants’ theory, on the other hand, was that the tank failed

as a result of a defective weld which, over time, weakened and burst at

pressures much lower than 250 psi--the pressure at which the relief valves

were calibrated to activate. The defendants disputed the plaintiffs’

theory that the shut-off valves were closed and that the vent pipes were

blocked by snow and ice. They presented expert testimony to support their

theory that the 
Gwinner Propane merged into Commonwealth Petroleum Company

2

prior to trial and the jury was instructed to consider the

negligence of both as if they were one entity.

-7-

cracked weld caused the tank to become overfull. The increased

temperature, they argued, created pressure levels which, although lower

than 250 psi, were higher than normal. As the weakest point on the tank,

the defective weld then failed under the pressure, allowing the propane to

escape and ignite. The defendants argued that Melroe’s fault exceed their

own because Melroe’s storage tank and maintenance procedures did not comply

with industry standards, thus allowing this accident to occur. 

The jury was instructed to apportion fault among the various parties

pursuant to North Dakota’s comparative fault laws. The jury returned a

verdict assessing 54% fault to Melroe, 26% to Gwinner Propane and

Commonwealth Petroleum, and 20% to Gwinner Oil. 2

II.

The plaintiffs first argue the district court erred in refusing to

submit the plaintiffs’ proposed jury instruction regarding a propane

supplier’s duty of care when delivering propane into customers’ appliances

that are known to be unsafe. Failure to instruct on this duty, they

maintain, erroneously allowed the defendant to characterize their duty as

merely an allegation of negligence rather than an affirmative duty imposed

by law. See, Monahan v. Flannery, 755 F.2d 678, 684 (8 Cir.

th

1985)(reversing a judgment based upon faulty instructions because it was

“quite possible that the jury could have believed that the [legal duty]

was, in fact not a specific duty by law, but, instead, merely an 
-8-

allegation of negligence by plaintiffs”). The plaintiffs’ proposed

instruction No. 21 provides:

The law imposes an affirmative duty upon a supplier of liquid propane

to investigate once it receives reasonable notice of the existence

of danger. Whenever a distributor or supplier of liquid propane is

in possession of facts that would suggest to a person of ordinary

care and prudence that a storage container or appliance of a customer

is unsafe, the company has the duty to investigate, as a person of

ordinary care and prudence similarly situated in handling a dangerous

substance would do, before it continued to furnish additional liquid

propane. The duty to exercise reasonable diligence to inspect or

shut off the liquid propane supply is measured by the likelihood of

the injury and only arises upon a reasonable notice of the existence

of danger. The law does not measure the duty to exercise reasonable

diligence by the customer’s sophistication.

We review the district court’s instructions to the jury for an abuse

of discretion. Hoselton v. Metz Baking Co., 48 F.3d 1056 (8 Cir. 1995). th

De novo review applies, however, to the issue of whether the district court

correctly interpreted state law. Kostelec v. State Farm and Cas. Co., 64

F.3d 1220 (8 Cir. 1995). It is well established that a party is entitled th

to have the jury instructed on its theories if the proposed instructions

are correct statements of the law and supported by the evidence. Hoselton,

48 F.3d at 1063. The district court, however, is not bound to give the

instruction requested by the litigants. Rather, the court has broad

discretion in choosing the form and the language of the instructions. Essco

Geometric v. Harvard Industries, 46 F.3d 718, 727 (8 Cir. 1995). There th

is no reversible error if the instructions, taken as a whole and viewed in

the light of the evidence and applicable law, fairly and adequately submit

the issues to the jury. Randle v. Parker, 48 F.3d 301, 304 (8 Cir. 1995). th

Initially, we must determine whether North Dakota has expressly delineated

the legal duties owed by propane gas suppliers. The district court

concluded it has not.
-9-

A.

The plaintiffs argue that North Dakota law “imposes a duty upon

suppliers of propane to inspect and take affirmative action in the face of

propane-related danger.” They suggest that this duty arises from the

National Fire Protection Association (NFPA) safety standards adopted by the

North Dakota Fire Marshal pursuant to his authority under N.D.C.C. § 18-09-

02 to make rules or regulations setting forth minimum general standards for

the transport and utilization of liquified petroleum gases. NFPA standard

58, as adopted by the North Dakota Fire Marshal, provides in part that

“[c]ontainers shall be filled only after determination that they comply

with the design, fabrication, inspection, marking and requalifcation

provisions of this standard.” NFPA 58 § 4-2.2.3. The plaintiffs cite no

authority nor does the Court’s research reveal any authority wherein this

provision of the safety standards has been interpreted by the North Dakota

courts as imposing an affirmative duty upon a propane supplier to inspect

its customers’ appliances and take affirmative actions when it knows an

appliance is unsafe. Indeed, the applicability of NFPA 58 was hotly

contested at trial. The defendants called Mr. William Mahre to testify

relative to NFPA 58’s application. Mr. Mahre is a member of the National

Propane Gas Association safety committee and is regularly involved in the

interpretation and application of NFPA 58 for the propane industry and

propane users. Mr. Mahre testified that in his opinion, § 4-2.2.3 did not

apply to the defendants. In the face of the uncertainty surrounding its

interpretation and application, the district court did not err in refusing

to instruct on an affirmative duty arising out of NFPA 58. 
-10-

B.

The plaintiffs also refer us to Van Ornum v. Otter Tail Power Co.,

210 N.W.2d 188 (N.D. 1973) for the proposition that the North Dakota

Supreme Court has imposed a duty to take affirmative action in the face of

a propane-related danger when the party knows about the danger and has the

authority to reduce it. The plaintiffs, however, mischaracterize the

holding of Van Ornum. In Van Ornum a construction worker was suffocated

when he entered a sump room filled with propane gas in the basement of the

new building his employer was constructing. One of the named defendants

in the wrongful death action brought by the decedent’s wife was the

architect who designed the new building. The plaintiff alleged that the

architect knew of the unsafe condition of the sump room but did nothing to

halt the construction or alter the design plans to correct the problem.

The plaintiff appealed the trial court’s refusal to instruct the jury that

the architect, as a matter of law, had authority under its contract with

the building owners, to halt construction or take whatever measures were

necessary to correct the known danger in the sump room. The court rejected

the plaintiff’s argument and merely held, inter alia, that the architect’s

authority under the contract was a question of fact for the jury, and the

jury was properly instructed that if the architect indeed had such

authority yet failed to exercise it in the face of a known danger, such

failure to act might constitute negligence. Id. at 200-01. The Van Ornum

case does not, as the plaintiffs argue, impose an affirmative duty upon the

defendants to inspect and take action in the face of a known propanerelated danger. 
See, Gas Service Co. v. Helmers, 179 F.2d 101 (8 Cir. 1950); 3 th

Bellefuil v. Wilmar Gas Co., 66 N.W.2d 779 (Minn. 1954); Ambriz v.

Pertolane, 319 P.2d 1 (Cal. 1958); and Weber v. Interstate Light

and Power Co., 68 N.W.2d 39 (Wis. 1955). 

In Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504

(8 Cir. 1983) this court indicated that South Dakota would

th

probably adopt the definition of a gas supplier’s duty set out in

Simpson where a propane supplier was on notice that the grain

elevator’s gas line was defective. There is no indication,

however, that the elevator’s propane system and consumption were

vastly different from that of a residential customer.

-11-

C.

Alternatively, the plaintiffs would have us rule that North Dakota

would follow other jurisdictions which have addressed this issue and impose

an affirmative duty on the part of a propane supplier to inspect the

appliance or shut off the supply after obtaining notice that the storage

appliance is unsafe. The plaintiffs rely substantially on Simpson v.

Skelly Oil Company, 371 F.2d 563 (8 Cir. 1967) for the language of their th

proposed instruction number 21. In Simpson, a residential customer of the

defendant oil company sued to recover damages from an explosion that

occurred when the customer attempted to re-light the pilot on his propane

burning water heater. There was evidence that the propane supplier

inspected the water heater but failed to detect a gas leak in the system.

Because the Iowa courts had not defined the duty of a gas distributor in

Iowa to inspect or remedy defects after notice of a leak in appliances

owned by its customers, the court relied in part on the cases of

surrounding states regarding the question of the duty of a gas supplier.

The court held that when a gas supplier is on notice of the unsafe

condition of one of its residential customer’s appliances, it has a duty

to either inspect the appliance before furnishing additional gas, or shut

off the gas supply entirely. Id. at 567-68. Importantly, however, in

Simpson and the other cases relied upon by the plaintiffs, the courts

imposed an affirmative duty to inspect or shut off the gas only in those

situations where the defective appliance was owned by a residential

customer of the supplier. In the case at bar, 3
-12-

Melroe had a maintenance crew of 20 workers, one of whom was specifically

assigned to the propane storage system. Melroe was subject to a myriad of

regulations relative to their tank farm and was responsible for training,

maintenance, and the safe operation of their tanks. We cannot conclusively

say that under these circumstances, the North Dakota court would impose an

affirmative duty upon a gas supplier to inspect Melroe’s tank farm or take

measures, other than those taken by the defendants here, to correct the

situation. 

Because the plaintiffs’ proposed instruction 21 does not accurately

reflect the law of North Dakota, the district court did not err in refusing

to give that specific instruction to the jury. Our ruling does not mean,

as the plaintiffs suggest, that a supplier is free to disregard any

dangerous situation and indiscriminately add propane to an unsafe system.

It only means there is no specific duty imposed upon the defendants by

North Dakota law. General negligence law, on the other hand, still

applies. The suppliers in this situation are not relieved of their duty

to act reasonably under the circumstances, nor of their liability for their

failure to so act. We have reviewed the court’s instructions in this case

and find that, as a whole, they fairly and adequately presented the issues

and the plaintiffs’ theory to the jury.
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III.

The plaintiffs next argue the district court erroneously admitted the

opinions of two of the defendants’ expert witnesses, Thomas Crane and John

Brynildson. We review the district court’s admission of expert testimony

for an abuse of discretion. Ventura v. Titan Sports, Inc., 65 F.3d 725 (8th

Cir. 1995).

 

A.

Crane, a mechanical engineer, was called by the defendants to offer

an opinion as to how the 15,000 gallon tank became 97% full and remained

so throughout the week despite that the propane levels in the four other

tanks were rising and falling uniformly. Crane’s opinion was in part based

upon a report by Philip Johnson prepared in connection with this accident.

Johnson was an expert and consultant in the gas industry and a former

employee of Crane’s firm. Unfortunately, Mr. Johnson died before this case

went to trial. The plaintiffs objected to any of Crane’s testimony based

upon his reliance on Johnson’s report on grounds that it was not admissible

under Fed. R. Evid. 703. Pursuant to Rule 703, an expert may rely on

otherwise inadmissible hearsay evidence in forming his opinion if the facts

and data upon which he relies are of a type reasonably relied upon by

experts in his field. Fed. R. Evid. 703; South Central Petroleum, Inc. v.

Long Brothers Oil Co., 974 F.2d 1015, 1019 (8 Cir. 1992). Specifically, th

the plaintiffs objected to Crane’s testimony on grounds that Crane never

testified that Johnson’s report was of the type reasonably relied upon by

experts in his field. Our review of the record, however, reveals the

district court made inquiry of Crane on this point and was satisfied that

Johnson’s report was of the type reasonably relied upon by experts in the

field and that it was reasonably relied upon by Crane in forming his

opinion. Moreover, as required by Rule 
-14-

703, the district court expressly limited the admission to Crane’s opinion

and did not admit the substance of Johnson’s report. South Central, 974

F.2d at 1019. 

In any event, any error in the admission of testimony based upon

Johnson’s report would be harmless. Although Crane relied on Johnson’s

report in forming his opinion, this reliance was not exclusive. Where an

expert’s opinion is partly based on hearsay which does not meet the Rule

703 requirements, his opinion is nevertheless admissible if it is supported

by the other independent bases upon which he relied to form that opinion.

See, Simmons v. Chicago and Northwestern Transportation Co., 993 F.3d 1326

(8 Cir. 1993)(per curiam). Here the record shows that in addition to

th

Johnson’s report, Crane relied upon his own thorough understanding of the

manifold system, his extensive experience in the behavior of propane, and

his extensive investigation of the physical evidence, including the storage

tanks, to arrive at his conclusions. We find that the district court did

not abuse its discretion, and properly admitted Mr. Crane’s expert

testimony. 

B.

The plaintiffs argue further that the district court erroneously

admitted the expert testimony of John Brynildson, a metallurgist called by

the defendants to testify regarding his opinion on the cause of the

explosion. The plaintiffs maintain that Brynildson should not have been

allowed to testify because his opinion was “pure speculation and totally

lacked foundation.” This argument goes to the weight rather than the

admissibility of the expert’s testimony. “[T]he factual basis of an expert

opinion goes to the credibility of the testimony, not the admissibility,

and it is up to the opposing party to examine the factual basis for the 
-15-

opinion in cross-examination.” Hose v. Chicago Northwestern

Transportation Co., 70 F.3d 968, 974 (8 Cir. 1995)(citing Loudermill v. th

Dow Chemical Co., 863 F.2d 566, 570 (8 Cir. 1988)). Questions of an

th

expert’s credibility and the weight accorded to his testimony are

ultimately for the trier of fact to determine. Fox v. Dannenberg, 906 F.2d

1253, 1256 (8 Cir. 1990). “Only if an expert’s opinion is so

th

fundamentally unsupported that it can offer no assistance to the jury must

such testimony be excluded.” Hose, 70 F.3d at 974. 

Here the district court made the threshold determination that

Brynildson was competent to testify as an expert and that his testimony

would assist the jury in determining a fact in issue. See, Fed. R. Evid.

702. Brynildson testified that in his opinion, the tank failed as a result

of a growing “crack” in a defective weld within the tank. He also offered

testimony to refute the plaintiffs’ assertion that the tank failed at

pressures greater than 250 psi. Brynildson based his opinion on his

experience and knowledge as a metallurgist and on his extensive

investigation and testing of the fractured tank. The plaintiffs greatly

emphasize the fact that Brynildson testified although one would expect to

find “beach marks” evidencing the type of growing crack which he opined was

present in the 15,000 gallon tank, he found no such evidence during his

examination of the tank. Thus, they argue, Brynildson’s opinion regarding

the existence of the crack was based on speculation and mere possibilities

and should have been excluded. Brynildson also testified, however, that

given the low quality of this particular weld, and the obliteration of the

evidence caused by the explosion, it would be extremely difficult for

anyone to find the characteristic beach marks. Moreover, beach marks (or

the absence thereof) was not the only evidence upon which Brynildson based

his opinion. Our review of the record reveals 
Insofar as it was brought only to preserve errors for

4

resolution in the event the Court ordered a new trial, we do not

reach the merits of the defendants’ cross-appeal.

-16-

that Brynildson’s testimony was not without some basis in fact. He was

subjected to extensive cross-examination regarding his opinion and the jury

was properly allowed to assess his credibility and the weight of his

testimony. The district court did not abuse its discretion in admitting

Brynildson’s expert testimony.

IV.

Finally, the plaintiffs argue that the district court erred in

denying their motion for judgment as a matter of law, or alternatively, for

a new trial on grounds that the jury’s verdict was against the clear weight

of the evidence. We have thoroughly reviewed the record and find these

asserted points of error are without merit. Accordingly, the judgment of

the district court is affirmed.4

A true copy

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.