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Dutton-Lainson Co. v. Do It Best Corp.9/28/2005
Sitting: Catherine Stone, Justice, Sarah B. Duncan, Justice, Phylis J. Speedlin, Justice.
MOTION TO VACATE DENIED; AFFIRMED
In this appeal, we must determine whether a manufacturer has a statutory duty to indemnify a seller for losses incurred in a products liability action in the absence of proof that the allegedly defective product was produced by that manufacturer. Because we hold that section 82.002 of the Texas Products Liability Act imposes a duty on such a manufacturer to indemnify the seller, we affirm the trial court's judgment.
Factual and Procedural Background
Mike Huddleston and his wife filed a products liability lawsuit against Alamo Lumber Company, Inc., Dutton-Lainson, and Do It Best Corporation ("DIB"). Huddleston alleged he was injured when a brake winch handle malfunctioned and injured him. The winch, which was in Huddleston's constructive possession, was disposed of prior to the lawsuit being filed. Huddleston alleged the winch had been manufactured by Dutton-Lainson. Huddleston further alleged DIB, a distributor of winches, sold the defective winch to his employer, Alamo Lumber.
DIB filed a cross-claim against Dutton-Lainson requesting statutory indemnification pursuant to section 82.002 of the Texas Products Liability Act. On September 2, 2003, DIB filed a motion for summary judgment on its indemnity claim. DIB supported its motion with several exhibits, including the affidavit of Richard Linker verifying that DIB had been a wholesaler and distributor of Dutton-Lainson products, including brake winches, since 1988. DIB also attached the affidavit of attorney Dwayne Day, who stated that DIB incurred reasonable attorney's fees, costs, and expenses of $21,805.35 in defending the products liability action through August 28, 2003.
In its reply to DIB's motion for summary judgment, Dutton-Lainson argued that the identity of the winch and its manufacturer were disputed and unknown, and could never be verified because Huddleston had disposed of the winch before filing suit. Dutton-Lainson complained that it had not been proven to be in the chain of distribution and that "a seller is not entitled to indemnification from just any manufacturer." Dutton-Lainson attached the affidavits of Bruce Dillin and Reinhold Haase in order to show genuine issues of material fact remained on DIB's indemnity claim. The alleged defective winch had been described as "silver" in Huddleston's deposition, and Dillin testified Dutton-Lainson never sold silver-colored winches to DIB. Haase testified in his affidavit that although Dutton-Lainson is a manufacturer of the model number winch identified by Huddleston's counsel, Dutton-Lainson could not have been in the chain of distribution. The trial court held a hearing on DIB's motion for summary judgment on September 30, 2003, but took the motion under advisement.
On April 22, 2004, the trial court granted the no evidence motions for summary judgment filed by DIB and Dutton-Lainson as to Huddleston's products liability claims, thereby dismissing the underlying claims against them. Thereafter, DIB submitted an additional affidavit of Dwayne Day wherein Day testified that DIB had incurred $29,000.64 in attorneys fees, costs, and expenses in defending the products liability action and in pursuing DIB's indemnity claims against Dutton-Lainson through June 24, 2004. On June 30, 2004, the trial court entered an order granting DIB's motion for summary judgment on its indemnity claim and awarded DIB $29,000.64. The order stated that Dutton-Lainson was required to continue paying DIB's additional attorney's fees, costs, and expenses incurred in its defense of its indemnity claim until f
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