Bachtell v. General Mills, Inc.

          MEMORANDUM

          Sylvia H. Rambo Judge

         Currently before the court is third-party Defendant Flair Flexible Packaging Corporation's (“Flair”) partial motion to dismiss (Doc. 24) third-party Plaintiff Signature Brands, LLC's (“Signature”) indemnity claim against Flair. Flair also requests that paragraph nineteen of Signature's amended third-party complaint be struck. The court will grant in part and deny in part the motion.

         I. Background

         On November 29, 2018, Plaintiffs Keith C. Bachtell and Renee D. Bachtell (collectively, “Plaintiffs”) initiated this lawsuit by filing a complaint against Defendants General Mills, Inc. and Signature (collectively, “Defendants”) stemming from an accident where their son died after choking on the cap of a Betty Crocker icing dispenser. (Doc. 1 [the “Underlying Complaint”].) Plaintiffs allege that Defendants, inter alia, improperly designed the Betty Crocker icing package and cap and failed to warn Plaintiffs of the dangers of choking on the cap. They assert negligent infliction of emotional distress, wrongful death, survival, breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, failure to warn, and products liability claims.^[1]

         About twelve weeks after Plaintiffs filed suit, Signature filed a third-party complaint against Third-Party Defendants Flair and Manto International Limited. (Doc. 16.) On February 27, 2019, Signature amended the third-party complaint. (Doc. 19 [the “Third-Party Complaint”].)^[2]

         The Third-Party Complaint alleges, inter alia, that Flair designed, manufactured, and supplied “the icing pouch that is the subject of this action.” (Doc. 19, ¶ 17.) On this basis, Signature has brought common law indemnification and contribution claims against Flair. Paragraph nineteen of the Third-Party Complaint-under the heading for Signature's common law indemnification claim-states:

In the event Plaintiffs receive by verdict, settlement or otherwise, any payment related to this matter, Flair is, pursuant to common law, jointly and severally liable with Signature Brands and/or liable over to Signature Brands by way of indemnification.

(Doc. 19, at ¶ 19.)

         On March 20, 2019, Flair filed the instant motion pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Signature's indemnification claim failed as a matter of law for four reasons: (1) Pennsylvania's common law indemnification doctrine only permits recovery by a defendant who was “secondarily” liable, by operation of law, for a third party whose actual conduct rendered them “primarily” liable; (2) Plaintiffs' negligence claims against Signature are not subject to indemnification because proof of the underlying negligence claim against Signature would require a finding that Signature had engaged in conduct rendering it primarily liable; (3) Plaintiffs' strict liability claims against Signature are not subject to indemnification because Signature actively participated in the tortious conduct at issue by assembling the icing product that was ultimately sold to Plaintiffs; and (4) breach of warranty claims are, as a matter of law, insusceptible to indemnification. (See Doc. 24.) Flair further argued paragraph nineteen of the Third-Party Complaint should be struck because an indemnitor cannot be held jointly and severally liable with an indemnitee. (See id.)

         Signature responded by arguing: (1) in a “chain of distribution” case, the question of primary and secondary liability is a fact-intensive inquiry; (2) sellers and assemblers can be entitled to indemnification from a manufacturer in a products liability case, even where they failed to discover a defect; and (3) that, even if the negligence claims are insusceptible to indemnification, “negligence is not the only basis of Plaintiffs' claims against Signature Brands.” (Doc. 25, pp. 9-10.) Signature also argues paragraph nineteen should not be struck because it merely “state[s] an element of Signature Brand's claim for contribution” against Flair. (Id. at 12.)

         In its reply brief, Flair argues, inter alia, that: (1) Signature has conceded it is not entitled to indemnification for any underlying negligence claims; and (2) Signature's admission that it assembled, marketed, distributed, and sold the icing tube and cap at issue means it “can only be found strictly liable as a primarily liable party.” (Doc. 26, p. 4.) The parties, having completed briefing, this issue is now ripe for the court to resolve.

         II. Standard of review

          To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “When reviewing a 12(b)(6) motion, we ‘accept as true all well-pled factual allegations in the complaint and all reasonable inferences that can be drawn from them.'” Estate of Ginzburg by Ermey v. Electrolux Home Prods., Inc., 2019 WL 4187372, at *3 (3d Cir. Sept. 4, 2019) (quoting Taksir v. Vanguard Grp., 903 F.3d 95, 96-97 (3d Cir. 2018)). The facts alleged must be “construed in the light most favorable to the plaintiff.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (internal quotations, brackets, and ellipses omitted). The universe of facts upon which the court may rely includes those facts alleged in the complaint, facts which the court may take judicial notice of, and indisputably authentic documents referred to in the plaintiff's complaint. Hartig Drug Co., Inc. v. Senju Pharm Co., 836 F.3d 261, 268 (3d Cir. 2016).

         The Third Circuit has detailed a three-step process to determine whether a complaint meets the pleading standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014).

         First, the court outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Second, the court must “peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth.” Id. Third, the court “look[s] for well-pled factual allegations, assume[s] their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679). The last step is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Finally, the traditional 12(b)(6) standards articulated in Twombly and Iqbal “apply with equal force to third-party complaints.” Musto v. Office Depot, Inc., No. 3:18-CV-02427, 2019 WL 2994230, at *2 (M.D. Pa. July 9, 2019) (internal quotations and ellipses omitted).

         III. Discussion

         A. Pennsylvania's common law indemnity doctrine

          Common law indemnity is a legal mechanism, “aris[ing] by operation of law, ” whereby a defendant can completely shift-as opposed to partially shift-payment of a claim to a third-party defendant. Huffsmith v. PPL Elec. Utilities Corp., No. 11-CV-1012, 2019 WL 4274338, at *6 (Lackawanna Cty. Ct. Com. Pl. Sept. 5, 2019) (citing City of Wilkes-Barre v. Kaminski Bros., Inc., 804 A.2d 89, 92 (Pa. Commw. Ct. 2002), app. denied, 828 A.2d 351 (Pa. 2003)). The doctrine is an equitable remedy “recognized in cases where community opinion would consider that in justice the responsibility should rest upon one defendant rather than the other.” Burch v. Sears, Roebuck & Co., 467 A.2d 615, 622 (Pa. Super. Ct. 1983) (internal brackets omitted) (quoting W. Prosser, Law of Torts 313 (4th ed. 1971)). It arises only when the third-party defendant engaged in the tortious conduct at issue, but the third-party plaintiff was liable for the other's conduct as a matter of law. Kaminski Bros., Inc., 804 A.2d at 92. “The classic example of such a legal relationship is that of principal and agent, employer and employee.” Id. at 92 n.4 (citing Restatement (Second) of Torts § 886B (1979)). In distinguishing between the party whose conduct actually gave rise to liability and the party who is only legally liable, the former is referred to as the “primary” or “active” tortfeasor, while the latter is referred to as the “secondary” or “passive” tortfeasor. Kaminski Bros., Inc., 804 A.2d at 92.

         In Builders Supply Company v. McCabe, the plaintiff (“Builders”) was a company whose driver was forced from the road by the defendant, McCabe, and crashed into another vehicle driven by a man named Pietropaolo. 77 A.2d 368, 369-70 (Pa. 1951). Pietropaolo sued Builders in Ohio and acquired a three thousand dollar judgment against it. Id. Builders then sued McCabe in Pennsylvania for common law indemnification, alleging that McCabe's negligent conduct caused Builders' driver to crash, rendering him liable for the previous lawsuit and judgment. Id. The jury rendered a verdict in favor of Builders, but the Pennsylvania Supreme Court reversed, explaining that the trial court had misconstrued the right to indemnity. Id.

         The McCabe court explained that Builders' claim was one properly sounding in contribution, whereby a party seeks to share blame with a joint tortfeasor. See id. at 326-28. A contribution claim is distinct from an indemnity claim in that two parties who have both committed wrongs may share some blame through contribution, but a party seeking indemnity is one who is held liable as a matter of ...