recovery against Kohler. Kohler first claims that Bilger would not be entitled to recovery under general principles of Pennsylvania indemnity law because no judgment was entered against Bilger. See Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). Second, Kohler points to the Merck case, discussed above, and notes that Merck involved facts virtually identical to those involved in this case.
We agree with Kohler that Merck is persuasive authority for the proposition that Bilger is not entitled to recover its attorney's fees and expenses in this case. See Merck & Co. v. Knox Glass, Inc., 328 F. Supp. 374, 377-78 (E.D. Pa. 1971). In being forced to incur expenses for attorney's fees and costs in order to defend itself in this lawsuit, Bilger is in a position no different from that of any other defendant forced to vindicate its rights in a lawsuit. Moreover, Merck is consistent with general principles of Pennsylvania indemnity law.
We recognize, as the Merck court did, that this rule puts a retailer in an unusual position in one respect. Assuming that the manufacturer is not bankrupt or otherwise unable to satisfy a judgment against it, a retailer who sells a defective product and becomes a defendant in a lawsuit in which both the manufacturer and retailer are found liable is entitled to full reimbursement for any judgment against it as well as attorney's fees and expenses. In contrast, a retailer who sells a product that is not defective but who is sued by the consumer must bear the full cost of defending the suit. In this respect, the retailer who sells a defective product is in a better position than the retailer who sells a non-defective product. Nevertheless, a manufacturer of a non-defective product who is sued in a products liability action should not be forced to pay not only for its own defense but for defense of the retailer as well. Merck & Co. v. Knox Glass, Inc., 328 F. Supp. 374, 378 (E.D. Pa. 1971). For this reason and the reasons discussed in the preceding paragraph, we agree with the District Court in Merck that Pennsylvania law does not provide Bilger any right to indemnification from Kohler.
Although Kohler has not filed a cross-motion for summary judgment, it seems clear that Kohler is entitled to summary judgment on the indemnification issue. Consequently, the Court will deny Bilger's motion for summary judgment and grant summary judgment in favor of Kohler.
An appropriate order will be entered. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 581 F. Supp.]
1. Bilger's motion for summary judgment is denied.
2. Summary judgment is granted for Kohler.
3. The Clerk of Court shall enter judgment in favor of Kohler and against Bilger on Bilger's indemnity claim.
4. The parties shall notify the Court within 30 days of the date of this order whether any issue in this case have yet to be resolved.
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