The opinion of the court was delivered by: NEWCOMER
CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE
Presently before me is this action for indemnification brought by Consolidated Rail Corporation against Youngstown Steel Door Company and The Lamson & Sessions Company. A nonjury trial was held on June 20, 1988. After discussing defendants' motion for summary judgment, I make my findings of fact and conclusions of law.
I. Defendants' Motion for Summary Judgment
At the start of trial, I denied defendants' motion for summary judgment as untimely filed because it was filed on June 13, 1988, one week before the case was called to trial yet approximately three weeks after the case had entered the trial pool. The plaintiff's response to the motion was not yet due at the time of trial. After reconsidering the court's position, I vacated my prior order and ordered that the summary judgment issue be fully briefed forthwith, and I commenced to try the case as well since the parties, counsel and witnesses were all present and prepared to proceed in this very brief trial. I, therefore, must now rule on defendants' motion for summary judgment.
Defendants basically claim that plaintiff is in a no win situation in this case. According to defendants, plaintiff must admit liability in the underlying Vales action or it is deemed to be a volunteer and not entitled to indemnification under Tugboat Indian Company v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153 (1939) (To recover under the principle of indemnity after a voluntary payment has been made in settlement, it must appear that the payor was himself legally liable and could have been compelled to satisfy the claim). If, however, plaintiff admits liability, defendants contend that it is barred from recovering under Rabatin v. Columbus Lines, Inc., 790 F.2d 22 (3d Cir. 1986) (Manufacturer is not under a duty to indemnify subsequent persons in the chain of distribution where an independent act of negligence also causes the injuries in the underlying action).
Defendants' argument is certainly interesting, but it does not persuade the court to grant the motion for summary judgment. To begin with, plaintiff can deny its liability in the underlying Vales action on the negligence grounds asserted by Vales while it admits liability on the product liability grounds asserted in the cross-claim by the Carnation Company. Plaintiff's settlement was therefore not made by a "volunteer" within the meaning of Tugboat Indian Company. In theory, though perhaps not in reality, the settlement funds went from Consolidated Rail Corporation to Carnation and finally to Vales in the underlying action.
Defendants may still succeed on their claim that plaintiff's independent acts of negligence bar a right to indemnification in this case. The resolution of that issue, however, involves the factual determination of causation so it is not appropriate for disposition on a motion for summary judgment where genuine issues of material fact exist.
1. On August 15, 1978, Willie Vales, an employee of Acme Co., was severely and permanently injured and disabled when he was struck by a boxcar door which fell from its moorings as he attempted to open the door.
2. As a result of injuries sustained by him, Vales received extensive medical, hospital and health care treatment, the cost of which has approximated $ 50,000, and he has sustained loss of earnings and earning power, actual and projected in the sum of $ 400,000.
3. Willie Vales commenced an action against Carnation Company and Consolidated Rail Corporation in the Philadelphia Court of Common Pleas in March, 1980. The action was based on negligence.
4. On September 23, 1982, Carnation Company, as one of the defendants, filed a cross-claim against defendant Consolidated Rail Corporation; on both negligence and product liability grounds. On September 28, 1982, Consolidated Rail Corporation, filed an answer to the cross-claim.
5. Throughout the course of the underlying litigation, Consolidated Rail Corporation felt it could successfully defend the allegations of negligence and was prepared to meet the same at trial.
6. As of March, 1985, Consolidated Rail Corporation was forwarded copies of reports prepared by Steven Batterman, P.E. and Edward H. Wright, Railroad Engineer Consultant, dated March 5, and March 20, respectively by counsel for Carnation in direct support and substantiation of Carnation's claim against Consolidated Rail Corporation on product liability grounds. In September, 1985, Consolidated Rail was forwarded a copy of a report dated September 3, 1985 prepared by American Standard Testing Bureau stating that the principal responsibility for the failure of the boxcar door was due to improper design by Youngstown Steel Door and on Conrail for having operated the boxcar in a defective condition.
7. Upon receipt of the Batterman report, counsel for Consolidated Rail Corporation immediately wrote to Youngstown Steel Door Company on March 11, 1985 advising it as to the nature of the claim against it on product liability grounds, and requesting Youngstown to assume the defense of such claim, as designer, supplier and manufacturer, and to indemnify Consolidated Rail Corporation with respect to any damages against it. Additional notices were sent April 15, 1985, May 30, 1985, July 15, 1985 and September 25, 1985. In addition to such notices, James ...