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Emery v. Hussey Seating V. Linamar Corp.
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Decision:	1997 ME 162
Docket:	Yor-96-668
Argued:	June 13, 1997
Decided:	July 21, 1997	



	[¶1]  Defendants, Hussey Seating Co. and Hussey Seating Canada, Ltd.
(Hussey), appeal from the judgment entered on a jury verdict in the
Superior Court (York County, Crowley, J.) in favor of plaintiffs, Chris and
Donna Emery, and in favor of defendant Linamar Corporation.  The jury
found Hussey liable to plaintiffs for breach of warranty and absolved Linamar
of any liability.  Hussey contends that the court erred by failing to instruct
the jury with respect to Linamar's common law duty to indemnify.  Hussey
also argues that the court erred by instructing the jury concerning
contribution.  Finding no error, we affirm the judgment.
	[¶2]  The facts as developed at trial may be summarized as follows: 
While using a power drill and winch to raise a basketball backboard in the
gymnasium at Bonny Eagle High School, plaintiff Chris Emery, a custodian at
the school, was injured.  According to Ronald Goulet, an expert witness at
the trial, the cause of Emery's injury was the Hussey "726" winch used in the
school's  backboard system.  The tapered pin holding the winch together
disengaged from its position, made contact with the other components of
the winch, and caused the winch to jam.  Due to this jamming of the winch
and resulting kickback of the power coming from the drill, Emery was
slammed into a doorway and his hand was jammed inside the drill.  His
thumb, wrist, and arm were injured to such an extent that he eventually was
forced to leave his job at Bonny Eagle.  Goulet testified that the Hussey
winch was defective in its design because a tapered pin is inappropriate for
use as a connector of rotating machine parts given its tendency to disengage
under a load.  
	[¶3]  Emery filed a complaint against Hussey,{1} alleging strict liability,
breach of warranty, and negligence.  This complaint was later amended to
include Donna Emery as a plaintiff and to include her claim for loss of
consortium.  Hussey then filed a third-party complaint against Linamar
Corporation alleging its entitlement to contribution or indemnity by
Linamar.  Plaintiffs filed their own complaint against Linamar, again alleging
strict liability, breach of warranty, and negligence, and Linamar filed a cross-
claim against Hussey for contribution or indemnity.  Before the trial,
plaintiffs dismissed their negligence claims against both defendants.  
	[¶4]  At the trial, the testimony regarding the relationship between
Hussey and Linamar was as follows:  It was undisputed that Linamar
assembled the "726" winch for Hussey.  While stating that his company did
not design the winch, John Forshaw of Hussey, testified that the company
did hire a draftsman when developing its backboard system who, in
conjunction with other Hussey employees, arrived at a "conception design"
of what was desired.  In addition, it was undisputed that Hussey provided
Linamar with a winch at the beginning of their relationship and asked
whether Linamar could produce the winch.  
	[¶5]  The "726" winch was sold by Hussey as a part of its basketball
equipment line.  The name "Hussey Seating" was molded into the winch
cover.  It was described as a manual winch in Hussey's catalogue and the
standard equipment that came with the winch was a hand crank.  Manual
use of the winch, however, is slow and difficult.  The Hussey catalogue
offered, as optional equipment for the winch, a portable electric winch
winder.  The catalogue stated that the winch could be run with any electric
drill meeting certain specifications.  If asked, Hussey would saw off the
manual handle so that a drill could be used.  Frank Hasenfratz of Linamar
testified that Linamar was not told of the winch's purpose when it was
retained by Hussey to produce the winch.  No one told Hasenfratz that it was
to be used with a power drill and he was told that it was a manual winch. 
When the winch's operation was demonstrated to Hasenfratz, it was
demonstrated with the manual crank.
	[¶6]  Hussey asked the court to instruct the jury as to Linamar's duty
to indemnify it for any damages it would be required to pay the plaintiffs.{2} 
The trial court refused to give such an instruction, holding that an
instruction as to "apportionment based upon the relative blame worthiness
of the parties is the appropriate instruction to give."  The court, in fact, 
instructed the jury regarding the defendants' cross-claims for contribution,
explaining concepts of comparative fault within the context of strict liability
and warranty claims.  Hussey objected to the contribution instruction, given
its position on indemnity, and objected to the use of the word "negligence"
in the charge because plaintiffs dropped their negligence claims.  The court
overruled Hussey's objections.  
	[¶7]  The jury found neither defendant strictly liable, but found
Hussey, and not Linamar, liable for breach of an implied warranty of
merchantability.  It awarded Chris Emery $366,000 and awarded Donna
Emery $34,000.  Hussey moved for a new trial based in part upon the failure
of the court to give the indemnity instruction and the court's use of the
word "negligence" in its charge.  This motion was denied.  Hussey appealed
from the judgment entered on the verdict. 
	[¶8]  A trial court's decision not to grant a new trial will not be
disturbed unless a clear and manifest abuse of discretion is shown.  Ames v.
DiPietro-Kay Corp., 617 A.2d 559, 561 (Me. 1992).  Hussey's first claim for a
new trial concerns the court's failure to instruct the jury with respect to
indemnity.  A party is only entitled to a requested jury instruction when that
(1)  states the law correctly;

(2)  appears to be supported by the facts of the case;

(3)  is not misleading or confusing;

(4)  is not already sufficiently covered in the given charge; and 

(5)  when refusal to give the instruction would result in prejudice to
the party requesting it.

Hatch v. Maine Tank Co., Inc., 666 A.2d 90, 94 (Me. 1995).  Hussey's
proposed instruction is purportedly based on section 886B of the
Restatement (Second) of Torts, a section of the Restatement never
recognized as the law in Maine.  We need not decide today whether Maine
would embrace the doctrine of equitable indemnity set out in section 886B
because no issue involving that doctrine is generated by the facts of the
present case.
	[¶9]  Current doctrines in tort law permit plaintiffs to recover full
damages from joint tortfeasors without regard to their respective culpability. 
Contribution and equitable indemnification have developed as equitable
remedies in this situation.  We have described these remedies as follows:

Contribution requires the parties to share the liability or burden,
whereas indemnity requires one party to reimburse the other entirely. 
Differing thus in their effect, these remedies are properly applicable
in different situations.  Contribution is appropriate where there is a
common liability among the parties, whereas indemnity is appropriate
where one party has a primary or greater liability or duty which justly
requires him to bear the whole of the burden as between the parties.

Roberts v. Am. Chain & Cable Co., 259 A.2d 43, 50 (Me. 1969). 
	[¶10]  A joint tortfeasor's right to indemnity can arise in three
circumstances:  (1) indemnity may be agreed to expressly; (2) a contractual
right of indemnification may be implied from the nature of the relationship
between the parties; or (3) a tort-based right to indemnity may be found
when there is a great disparity in the fault of the parties.  Araujo v. Woods
Hole, Martha's Vineyard, etc., 693 F.2d 1, 2 (1st Cir. 1982).  The right to
indemnity set out in section 886B is one formulation of the tort-based right
defined in terms of unjust enrichment.  Restatement (Second) of Torts §
886B cmt. c (1965).  The applicable portion of that section provides:
§ 886  Indemnity Between Tortfeasors

(1)  If two persons are liable in tort to a third person for the
same harm and one of them discharges the liability of both, he is
entitled to indemnity from the other if the other would be
unjustly enriched at his expense by the discharge of the liability.

(2)  Instances in which indemnity is granted under this
principle include the following:
. . . .
(d)  The indemnitor supplied a defective chattel or performed
defective work upon land or buildings as a result of which both
were liable to the third person, and the indemnitee innocently
or negligently failed to discover the defect . . . .

The comment to clause (d) explains as follows:  "The supplier of a defective
chattel is required to indemnify a retailer regardless of whether his tort
liability is based on negligence or strict liability, so long as the retailer has
failed to discover the defect before selling the product."  Restatement
(second) of Torts, supra, § 886B cmt. h.  
	[¶11]  Cases interpreting the above section, including the case cited
by Hussey in the body of its proposed jury instruction, have held that tort-
based indemnity between a seller and a retailer only applies when the
"seller's liability stems solely from a failure to discover the defect."  Park v.
Forman Bros., Inc., 785 F.Supp. 1029, 1030 (D.D.C. 1992) (citing East Penn
Mfg. Co. v. Pineda, 578 A.2d 1113, 1127 (D.C.App. 1990)) (emphasis added). 
As stated by the East Penn court, the manufacturer of a defective product
must indemnify a seller when:

(1) the seller reasonably relies upon the manufacturer's knowledge
and skill in making the product free from defects; and 
(2) any negligence on the seller's part consists of, at most, a failure to
discover the defect.

East Penn, 578 A.2d at 1127.  
	[¶12]  This interpretation is in accord with cases affording
indemnification to "passive" as opposed to "active" tortfeasors.  See
Restatement (Second) of Torts, supra, § 886B, cmt c.  "Passive" tortfeasors,
or those whose liability arises merely from their failure to discover or
prevent the misconduct of another, have been held to be entitled to
indemnity.  Schneider Nat'l Inc. v. Holland Hitch Co., 843 P.2d 561, 574
(Wyo. 1992).  A seller has been defined as "passive" if it is nothing more than
a retailer in the chain of distribution.  If the seller is not simply a passive
conduit through which goods pass, however, it is not entitled to indemnity
and contribution is appropriate.  AMREP Southwest, Inc. v. Shollenbarger
Wood Treating, Inc. (In re:  Consol. Vista Hills Retaining Wall Litig.), 893
P.2d 438, 443 (N.M. 1995); see Dragan M. Cetkovic, Loss Shifting: 
Upstream Common Law Indemnity in Products Liability, 61 Def. Couns. J. 75
(1994) (indemnity appropriate in chain of production when appropriate to
shift risk of loss up to those who can prevent defect in product).
	[¶13]  In the present case, the facts do not support the assertion that
Hussey was merely an innocent seller, i.e., a passive conduit in the chain of
distribution.  It took actions that blurred the line between its status as a
seller and that of a manufacturer.  Hussey provided Linamar with the design
of the winch.  Cf. Restatement (Second) of Torts, supra, § 404, cmt. a (when
employer provides contractor with plans to make chattel, contractor not
required to sit in judgment of plans provided).  In addition, the evidence
supports the conclusion that Hussey sold the winch as "its own."  Section
400 of the Restatement (Second) of Torts provides that:  "One who puts out
as his own product a chattel manufactured by another is subject to the same
liability as though he were its manufacturer."  Hussey was not a mere seller
and the trial court did not err by refusing to give the indemnity instruction,
nor did it abuse its discretion by failing to grant Hussey a new trial. 
	[¶14]  Hussey also contends that the court's use of the word
"negligence" in its contribution instruction confused the jury.   The jury
found only Hussey liable for the damages incurred by the plaintiffs, and it
could not, and in fact did not, engage in a contribution analysis.{3}  Thus, any
error in the court's contribution instruction was necessarily harmless.  M.R.
Civ. P. 61.  
	The entry is:
				Judgment affirmed. 
Attorney for plaintiff: Peter W. Schroeter, Esq. (orally) Smith Elliott Smith & Garmey, P.A. P O Box1179 Saco, ME 04072 Attorneys for defendants: Jeffrey T. Edwards, Esq. (orally) Daniel Rapaport, Esq. Timothy J. Bryant, Esq. Preti, Flaherty, Beliveau & Pachios, LLC P O Box 11410 Portland, ME 04104-7410 (for Hussey Seating Co.) Graydon G. Stevens, Esq. (orally) Kelly, Remmel & Zimmerman P O Box 597 Portland, ME 04112-05497 (for Linamar Corp.)
FOOTNOTES******************************** {1} The parties stipulated at trial that Hussey Seating Co. and Hussey Seating Canada, Ltd. could be treated as one entity. {2} The proposed instruction provided: Indemnity While contribution provides for proportionate allocation of liability between two parties, indemnity shifts the entire loss from one tortfeasor, who has been compelled to pay it, to another who should bear the loss instead. A manufacturer has an implied duty to a seller to indemnify, where the manufacturer provides a defective product and the seller's liability stems solely from its failure to discover the defect. If a manufacturer supplies a defective product to a retailer, who sells it to a customer, who recovers from the retailer for an injury incurred, the retailer may recover in indemnity against the manufacturer. {3} The jury's special verdict form instructed the jurors as follows: "If you found both Hussey Seating Co. and Linamar Corp. liable to plaintiff in your answers to questions 1 through 4, answer the remaining questions." Those remaining questions, concerning contribution, were left unanswered.