United States District Court, N.D. Illinois
September 27, 2004.
Rebecca Taylor, et al.,
Tishken Products Co., et al.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Rebecca Taylor and Donald Behrens, co-administrators
of the estate of Randy Behrens, filed a complaint alleging
wrongful death and survival claims against defendants Tishken
Products Co. (Tishken) and Coe Press Equipment Corporation (Coe).
In its answer to the complaint, Tishken included a two-count
cross-claim (subsequently amended) seeking indemnity pursuant to
contract (Count I) and pursuant to common law (Count II) from Coe
should Tishken be found liable to plaintiffs. See Fed R. Civ.
Proc. 13(g). Tishken has moved for summary judgment on both
counts of its amended cross-claim. Jurisdiction and venue are
proper pursuant to 28 U.S.C. § 1332(a)(1) and
28 U.S.C. § 1391(a)(2).
Tishken and Coe agree that Michigan law is applicable to both
counts of the cross-claim for indemnity, so Michigan law will be
utilized in determining whether Tishken is entitled to summary
judgment on those claims.
The indemnity clause of the contract between Tishken
and Coe provides:
Vender [Coe] agrees to defend, indemnify and hold
Tishken harmless from and against any and all claims
made against or damages or losses sustained by
Tishken, caused, in whole or in part, by (i) Vender's
breach of any of its obligations under this agreement
and (ii) Vender's actions or inactions in connection
with the agreement, including, without limitations,
any actions or inactions while on the premises of
Tishken, such as the release of any substance on or
about said premise.
Coe argues that a personal injury claim such as that brought by
the estate of Randy Behrens is not included among the claims for
which Coe agreed to indemnify Tishken. However, a Michigan
statute provides that: "Unless excluded or modified, a warranty
that the goods shall be merchantable is implied in a contract for
their sale," and "Goods to be merchantable must be at least such
as . . . are fit for the ordinary purposes for which such goods
are used." Mich. Comp. Laws § 440.2314. Thus, the contract
between Coe and Tishken included an implied warranty of
merchantability, and the fitness of the storage rack in which
plaintiffs' decedent's fatal accident occurred for its ordinary
purposes is in question in this litigation. However, it cannot be
said as a matter of law that plaintiffs can only prevail against
Tishken if the rack was unfit for its ordinary purposes. For
example, the trier of fact might conclude that the storage rack
was fit for the purposes for which it was designed but was
defective and unreasonably dangerous for lack of adequate
warnings about its safe use, and might conclude that this was not
sufficient to establish a violation of the implied warranty of
merchantability. In other words, it cannot be said that there is
no genuine issue of material fact as to Coe's liability to
Tishken under the contractual indemnity clause in the event that
plaintiffs should prevail against Tishken. Accordingly, Tishken
is not entitled to summary judgment on Count I of the amended
Tishken's common law indemnity claim (Count II) is premised on
the same Michigan statute implying a warranty of merchantability.
See Mich. Comp. Laws § 440.2314. Thus, for the same reason
Tishken is not entitled to summary judgment on Count I of the
amended cross-claim, it is not entitled to summary judgment on
Accordingly, defendant Tishken's motion for summary judgment on
Counts I and II of its amended cross-claim is denied.
© 1992-2004 VersusLaw Inc.