United States District Court, M.D. Pennsylvania
KEITH C. BACHTELL and RENEE D. BACHTELL, as Administrators of the Estate of Jamison Taylor Bachtell, dec'd and in their own right, Plaintiffs,
GENERAL MILLS, INC. and SIGNATURE BRANDS LLC, Defendants/ Third Party Plaintiffs.
FLAIR FLEXIBLE PACKAGING CORPORATION and MANTO INTERNATIONAL LIMITED Third-Party Defendants
H. Rambo Judge
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.
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
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”].)
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
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.)
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.)
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.)
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.
Standard of review
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.
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).
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).
Pennsylvania's common law indemnity
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.
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
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