The opinion of the court was delivered by: Judge Conaboy
Here we consider the Motion for Summary Judgment of Additional Defendant, Brewer Tire and Automotive (Doc. 52). This motion seeks dismissal of all claims against Third-Party Defendant Brewer Tire and Automotive ("Brewer") by Third-Party Plaintiffs (original Defendants) Showtime Motor Sports, Inc., and Robin Richardson ("Third-Party Plaintiffs" or "Defendants") as well as Plaintiff Cindy Burger ("Plaintiff"). (Docs. 52, 57.) For the reasons discussed below, we grant the motion.
Plaintiff Cindy Burger filed this diversity action on August 6, 2010, alleging she was injured in an accident on September 22, 2009, on Interstate 81 Southbound in Lackawanna County, Pennsylvania. (Doc. 1 ¶¶ 6, 12.) Defendants Showtime Motor Sports and Robin Richardson owned and operated a 2007 Chevrolet Silverado with a full trailer (Navy Sim II trailer) in tow. (Doc. 1 ¶ 6.) Richardson was an employee of Showtime authorized to operate the vehicle. (Doc. 1 ¶ 5.) Plaintiff was in a construction zone along I-81 when a tire and wheel from Defendants' trailer detached from the trailer, continued to travel off the roadway into the construction zone and struck Plaintiff. (Doc. 1 ¶ 5.) The impact caused Plaintiff to lose consciousness and resulted in Plaintiff sustainging "severe and permanent injuries." (Doc.1 ¶ 6.) Plaintiff also alleges that the dangerous condition of the trailer and its parts was known for some time prior to the time of Plaintiff's injuries and Defendants had actual or constructive knowledge of same. (Doc. 1 ¶ 8.)
Defendants filed a two-count Third-Party Complaint against Brewer Tire and Automotive, Muddy Creek Motor Sports ("Muddy Creek"), and Camping World on August 17, 2010.*fn1 (Doc. 4.) They make the following general allegations: Brewer supplied maintenance and service to the 1990 Proco trailer attached to Defendants' 2007 Chevrolet Silverado (Doc. 4 ¶ 4); Muddy Creek maintained and serviced the 1990 Proco trailer (id. ¶ 5); and Camping World maintained and serviced the 1990 Proco trailer. Count I of the Third-Party Complaint alleges, inter alia, that Brewer was negligent for failing to properly service the trailer, for failing to properly inspect the trailer, for failing to repair the dangerous, defective, and/or deteriorated condition of the trailer, and for allowing the trailer to remain in that condition for an extended period of time.*fn2 (Doc. 4 ¶ 8.) Count II for Common Law Indemnity/Contribution alleges that if Plaintiff was injured as alleged, the injuries were caused solely and primarily by the conduct of all Third-Party Defendants such that Third-Party Defendants would be solely, jointly or severally liable. (Doc. 4 ¶ 10.) Third-Party Defendants add that a "Common Law and/or contractual claim is hereby made against Third-Party Defendants Brewer Tire and Automotive, Muddy Creek Motor Sports and Camping World." (Id.) Defendants seek indemnity on all claims arising from the litigation as well as costs and expenses associated with the litigation. (Doc. 4.)
All Third-Party Defendants filed cross-claims against Defendants Showtime and Richardson and other Third-Party Defendants seeking indemnification and/or contribution. (Doc. 10 at 7-8; Doc. 25 at 6-7; Doc. 28 at 5-6.)
The facts relevant to this motion are set out in Local Rule 56.1 Statement of Material Facts in Support of Motion for Summary Judgment of Additional Defendant, Brewer Tire and Automotive (Doc. 73) and Defendants, Showtime Motor Sports, Inc. and Robin Richardson's Local Rule 56.1 Statement of Material Facts in Response to Defendant, Brewer Tire and Automotive's Statement of Material Facts in Support of Their Motion for Summary Judgment (Doc. 75). Third-Party Plaintiffs and Brewer agree that Plaintiff's claims revolve around a break of an axle, which caused a tire and rim to come loose from Third-Party Plaintiff Showtime Motor Sports, Inc.'s vehicle, impacting with Plaintiff. (Third-Party Defendant Brewer's Statement of Material facts, Doc. 73 ¶ 2; Third-Party Plaintiffs' Statement of Material Facts, Doc. 75 ¶ 2.) They further agree that, after the close of discovery, Showtime produced a Liability Expert Report authored by George H. Meinschein outlining Showtime's position on liability in the case. (Doc. 73 ¶ 4; Doc. 75 ¶ 4.) Brewer is not mentioned in the Expert Report. (Doc. 73 ¶ 5; Doc. 75 ¶ 5.) Third-Party Plaintiffs add that they had a contractual relationship with Brewer as the supplier of the tire involved in this matter and Plaintiff's expert reports from Dr. Zurad and Dr. van der Sluis provided that Plaintiff's injuries were a result of being hit by the tire and the wheel of the vehicle. (Doc. 75 ¶ 5.) This "contractual relationship" is based upon Brewer's sale of tires to Duggins Welding, an entity related to Showtime. (Doc. 73 ¶ 6; Doc. 75 ¶ 6.) Brewer never saw the vehicle which had its axle break. (Doc. 73 ¶ 7; Doc. 75 ¶ 7.)
Third-Party Plaintiffs and Brewer dispute whether Brewer sold Duggins tires before the relevant event: Brewer stating it did not (Doc. 73 ¶ 8); Third-Party Plaintiffs stating they have an invoice for August 11, 2009, that was used for the trailer in question (Doc. 75 ¶ 8). Brewer states that no expert has indicated there is any duty on the part of Brewer, under the present set of circumstances, to inspect the axle of the vehicle, even if Brewer sold the tires ultimately used on the trailer in question. (Doc. 75 ¶ 10.) Third-Party Plaintiffs agree in part, stating that their expert report does not indicate a duty on Brewer's part but Plaintiff's expert report indirectly indicates that Plaintiff's alleged injuries were caused by the tire that impacted Plaintiff. (Doc. 75 ¶ 10.) Finally, Brewer states there is no evidence that a tire sold by Brewer was actually placed on the trailer. (Doc. 73 ¶ 11.) Third-Party Plaintiffs state there is evidence that a tire sold by Brewer was used on the trailer at the relevant time. (Doc. 75 ¶ 11 (citing Exh. B).)
A. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997)(citing Fed. R. Civ. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S. at 248). In determining whether a genuine issue of fact exists, a court must resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation omitted).
The initial burden is on the moving party to show an absence of a genuine issue of material fact. The moving party may meet this burden by "pointing out to the district court  that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Celotex, 477 U.S. at 325. The non-moving party may not rest on the bare allegations contained in his or her pleadings, but is required by Federal Rule of Civil Procedure 56(e) to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When Rule 56(e) shifts the burden of proof to the non-moving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when ...