The opinion of the court was delivered by: Marovitz, District Judge.
Motions for Summary Judgment
This is a product liability tort action arising out of the
explosion of a soft drink bottle which injured the minor
plaintiff's eye. Jurisdiction is based on diversity, 28 U.S.C. § 1332.
The bottle in question was a bottle of Coca-Cola, a well known
carbonated beverage. Plaintiff alleges that defendant, the
Coca-Cola Company (CCC), manufactured and sold the relevant
bottle. CCC has moved for summary judgment on the grounds that it
did not make, fill, distribute, market or sell the subject
bottle, and that it should not be held liable for the tortious
conduct of its wholly owned subsidiary, the Coca-Cola Bottling
Company of Chicago (Chicago Bottling).
CCC has also filed a Third Party Complaint against Owens
Illinois Glass Company (Owens) alleging that Chicago Bottling
purchased glass bottles from Owens and that if plaintiff
prevails, then CCC is entitled to be indemnified by Owens. Owens
has filed a motion to dismiss the plaintiff's Complaint and a
motion to dismiss the Third Party Complaint.
The present record is somewhat fuller, and the material facts
are not in dispute. CCC owns all of the 100 issued shares of
capital stock in Chicago Bottling. No Director of CCC also serves
as a Director of Chicago Bottling. There are no common officers
between the two companies with the exception of an Assistant
Treasurer and an Assistant Secretary who serve in the same
capacity in both corporations. The two companies do not share
physical facilities, plants or offices with each other. Neither
are their bank accounts shared. The advertising of Chicago
Bottling is done in its own name and not that of CCC.
Moreover, CCC does not manufacture, sell or furnish or purchase
or obtain soft drink bottles. Rather, it manufactures and sells a
syrup which bottlers prepare into the final soft drink product.
CCC was never in possession or control of the subject bottle. The
relevant bottle was manufactured by Owens and sold by it to
Chicago Bottling. CCC had no control over the bottling process.
These undisputed facts leave no doubt CCC's involvement in the
alleged tort is tangential. Mere stock ownership is insufficient
to make a parent corporation liable for the tortious acts of its
subsidiary. Noto v. Cia Secula di Armanento, 310 F. Supp. 639, 646
(S.D.N.Y. 1970); Gordon v. International Telephone and Telegraph
Corp., 273 F. Supp. 164, 166 (N.D.Ill. 1967). The undisputed facts
of the present record depict a real corporate separateness
between CCC and Chicago Bottling. Apart from the similarity in
names and plaintiff's unsupported allegations of control, there
is no indication that the parent CCC directs Chicago Bottling or
its bottling process. Moreover, there is no suggestion that CCC's
subsidiary Chicago Bottling was established or operates as a
sham, decoy or dummy corporation, that it is insolvent or of
insufficient net worth, that corporate form has been used to
defraud, or that unfairness would result from a failure to treat
these two corporations as one. Steven v. Roscoe Turner
Aeronautical Corp., 324 F.2d 157, 160-161 (7th Cir. 1963);
American Trading & Production Corp. v. Fischbach & Moore, Inc.,
311 F. Supp. 412, 416 (N.D.Ill. 1970); Noto v. Cia Secula di
Armanento, 310 F. Supp. 639, 646 (S.D.N.Y. 1970).
In light of this record, then, we now find that the defendant,
CCC, cannot be found liable for the tortious conduct, if any, of
its wholly owned subsidiary, Chicago Bottling. Consequently,
defendant's motion for summary judgment is granted. The Third
Party Complaint becomes moot at this point, and will also be
dismissed without prejudice as will the original Complaint.
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