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Borden Chemical9/29/2005
Hampden.
April 6, 2005.
Present: Greenberg, Smith, & Gelinas, JJ.
Indemnity. Uniform Commercial Code, Indemnity. Contract, Indemnity.
Civil action commenced in the Superior Court Department on November 30, 1999.
The case was heard by David A. McLaughlin, J., on motions for summary judgment, and entry of separate and final judgment was ordered by him.
Borden Chemical, Inc. (Borden), the third-party plaintiff in a personal injury action, appeals from a summary judgment entered in favor of Jahn Foundry Corporation (Jahn), the third-party defendant, on Borden's claim that Jahn was contractually bound to indemnify Borden, pursuant to a provision in Borden's invoices, for liabilities and costs incurred by Borden in connection with Jahn's use of Borden's product, a resin known as Durite. The judge ruled that, in accordance with the Massachusetts Uniform Commercial Code, G. L. c. 106, ยง 2-207, the indemnity provision in Borden's invoices did not become part of the sales contract between the parties. We affirm.
1. Background
We take the undisputed facts from the judge's summary judgment memoranda in this and related proceedings, supplemented from the summary judgment record. This matter has its origins in a tragic explosion that took place at Jahn's foundry on February 25, 1999, which resulted in the deaths of three foundry employees and injuries to nine others. Litigation arising from the accident included claims for personal injuries and wrongful death against Borden, the injured parties claiming that the resin supplied by Borden to Jahn caused the explosion. Borden brought a third-party suit against Jahn for indemnification, based on an indemnity provision printed on the back of Borden's invoices that it sent to Jahn for the resin shipments.
At all relevant times, Jahn was in the business of producing castings, a product that was made by pouring molten metal into a shell mold. The shell molds, in turn, were made from a mixture of sand and resin. Up until 1994 or 1995, Jahn purchased resins from various manufacturers, including Borden. By 1996, Jahn was purchasing resin solely from Borden.
Prior to 1998, Jahn sent purchase orders for resin to Borden annually; those purchase orders contained no terms bearing on warranties or indemnification. Jahn would then call Borden for individual shipments, as needed. Borden shipped the resin as requested, and would send Jahn an invoice that contained, among other preprinted terms, an indemnity provision. Jahn's purchasing manager, Robert Cote, typically initialed the Borden invoices next to the amount owed and gave them to his accounts payable staff to pay.
The following indemnity provision appeared in all Borden invoices sent to Jahn over the years, despite changes to the invoice's format in 1998:
"4. INDEMNITY AGREEMENT. Buyer shall defend, indemnify, and hold Seller harmless from and against all claims, liabilities, costs and expenses (including, but not limited to, those related to injury or to death of Buyer's employees) arising from or connected with the possession, handling, processing or use of the product by Buyer or others . . . ."
The Borden invoices also included the following provision:
"18. EXISTING CONTRACT AND MODIFICATION . . . . No modification of this contract shall be of any force or effect unless in writing and signed by the party claimed to be bound thereby, and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing different conditions."
In 1998, the form of Jahn's annual purchase order to Borden cha
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