LTV Energy Products Co. v. Chaparral Inspection Co.

*596MIRABAL, Justice,

dissenting.

I respectfully dissent.

The majority holds that even if LTV was an innocent retailer, it has no right to indemnification from the party who was actually at fault. In my opinion, the majority has construed the Texas Supreme Court’s pronouncements on this issue too narrowly.

In its petition, LTV alleged it had purchased approximately 5,109 feet of oil well casing. Chaparral had inspected the casing prior to its delivery to LTV, and had submitted a written inspection report stating the walls of the joints were “prime” “5½ [inch O.D.] 20# N-80” pipe. LTV sold the casing to the ultimate consumer who used the casing in an oil well. The casing parted downhole because the walls of a joint were too thin — Chaparral’s inspection report had misrepresented the thickness of the joint.

The ultimate consumer sued LTV for its damages,1 LTV settled without admitting liability, and LTV then sued Chaparral alleging negligence, misrepresentation, negligent misrepresentation, implied indemnity, third party beneficiary contract, implied warranty of workmanlike inspection, and contribution rights. LTV stated its implied indemnity claim as follows:

LTV, without itself being at fault, became subject to tort liability to (the ultimate consumer) as a result of Chaparral’s unauthorized or wrongful conduct, to wit, its failure to reject the Fish (the joint). Accordingly, LTV is entitled to indemnity from Chaparral for expenditures properly made in discharge of such liability.

Chaparral filed a motion for summary judgment asserting that, even if LTV proved all of its factual allegations, it could not obtain indemnification from Chaparral, as a matter of law. The trial court granted Chaparral a summary judgment, and the majority opinion affirms.

In B & B Auto Supply v. Central Freight Lines, Inc., 603 S.W.2d 814 (Tex.1980), the supreme court stated that, under the comparative negligence statute2, “there is no longer any basis for requiring one tortfeasor to indemnify another tort-feasor when both have been found negligent and assessed a percentage of fault by the jury.” Id. at 817 (emphasis added). The court therefore held that the common law right of indemnity is no longer available between negligent joint tortfeasors.3

In Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816 (Tex.1984), the supreme court reaffirmed its holding in B & B Auto Supply, but it also specifically recognized the survival of common law indemnity rights “in products liability cases to protect the innocent retailer in the chain of distribution.” Id. at 819. The present case involves just that (assuming, as we must, that LTV will prove its allegations4): an innocent retailer who was liable to its customer for a product defect, but who was not negligent or at fault in any way for the defect.

The majority construes language in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 432 (Tex.1984), to mean that the indemnification right of an innocent retailer, who is merely a conduit for a defective product, is restricted to indemnification from the manufacturer of the defective product. Although it is true the supreme court mentioned only that instance of indemnification liability, I see no reason to *597believe the supreme court meant to exclude recovery by an innocent retailer under the facts involved in the present case. Bonni-well, which was written after Duncan, uses more generalized language than Duncan: “An analogous indemnity right survives in products liability cases to protect the innocent retailer in the chain of distribution.” Bonniwell, 663 S.W.2d at 819. Later, in Aviation Office v. Alexander & Alexander, 751 S.W.2d 179, 180 (Tex.1988), the supreme court put it this way: “The only remaining vestiges of common law indemnity involve purely vicarious liability or the innocent product retailer situation,” citing Bonniwell.

The majority also relies on American Alloy Steel v. Armco, Inc., 777 S.W.2d 173 (Tex.App.—Houston [14th Dist.] 1989, no writ). Armco involved a summary judgment against a retailer who had sued a steel manufacturer for indemnity, after the retailer had replaced defective steel it had sold to its customer. The court held that the manufacturer/retailer relationship “is not one that persuades us to imply a right to indemnity_” The Armco court reached this conclusion without mentioning the Texas Supreme Court decisions in B & B Auto Supply, Duncan, Bonniwell, and Aviation Office. In my opinion, the Arm-co court’s holding on that particular point was incorrect.

For the reasons stated, I would sustain LTV’s points of error one and two. Accordingly, I would reverse the summary judgment and remand the case to the trial court.

. The suit against LTV alleged breach of contract, breach of express and implied warranties, negligence, strict products liability, and misrepresentation.

. Tex.Rev.Civ.Stat.Ann. art. 2212(a), repealed by Act of May 17, 1985, 69th Leg., ch. 959, § 9(1) 1985 Tex. Gen. Laws 3242, 3322. Now codified at Tex.Civ.Prac. & Rem.Code Ann. § 33.001 (Vernon Supp.1992).

. Under the common law doctrine of indemnity, when one tortfeasor has breached a duty owed to a co-tortfeasor, the breaching tortfeasor could be held liable to the other tortfeasor for indemnity, i.e., for total reimbursement of the damages paid to the plaintiff. B & B Auto, 603 S.W.2d at 816.

.A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any theories pleaded. Dodson v. Rung, 717 S.W.2d 385, 390 (Tex.App.—Houston [14th Dist.] 1986, no writ).