Plaintiff had purchased the beer from Forman Brothers, Inc., a wholesale merchant. Falstaff Brewing Corporation had brewed and bottled the beer and Glenshaw Glass, Inc. had manufactured the bottle which exploded. Plaintiff is suing the beer wholesaler, bottler, and bottle manufacturer for breach of warranty of merchantability. In addition, Forman Brothers filed a third-party complaint against Falstaff, who then filed a third-party complaint against Glenshaw Glass.
Falstaff filed a motion for partial summary judgment, which was joined by Forman Brothers, against Glenshaw Glass. Falstaff and Forman Brothers claim that they are entitled to indemnification from Glenshaw Glass in the event that they are found liable to plaintiff. A claim for indemnification may be made by cross-claim, third party complaint, or by a separate action against the manufacturer after judgment has been entered against the seller. See M. Madden, Products Liability § 17.1, at 153 (1980). Forman Brothers has not made such a claim against Glenshaw Glass. Accordingly, on this record, Forman Brothers is not entitled to summary judgment against Glenshaw Glass. Accordingly, the motion by Forman Brothers is denied without prejudice.
Falstaff, however, has made such a claim against Glenshaw Glass. Therefore, its motion for summary judgment is properly before the Court. In support of its motion, Falstaff maintains that there is no evidence in the record that its actions caused the bottle to explode. Falstaff submits the report prepared by plaintiff's expert, who concludes that the bottle was broken as a result of a slight impact and that the "glass thickness was insufficient for a container intended for the packaging and transport of malt liquor in commerce." See Falstaff's Reply, Exh. A, at 4. In opposition to Falstaff's motion, Glenshaw Glass points to no evidence in the record that Falstaff was responsible for the explosion. Instead, Glenshaw Glass relies solely on plaintiff's complaint which alleges that the bottle was inadequately packaged. This is insufficient to defeat Falstaff's motion for summary judgment on the issue of indemnification.
A manufacturer has an implied duty to a seller to indemnify him where the manufacturer provides a defective product and the seller's liability stems solely from a failure to discover the defect. See East Penn Manufacturing Co. v. Pineda, 578 A.2d 1113, 1127 (D.C. App. 1990) (quoting Restatement (Second) of Torts § 886(d) & comment h). As the only evidence in this case linking the three defendants to the explosion of the bottle is the insufficient glass thickness, it is equitable to shift the entire burden of loss to the manufacturer. See id. Accordingly, it hereby is
ORDERED, that Falstaff's motion for partial summary judgment is granted. It hereby further is
ORDERED, that Forman Brothers's motion for partial summary judgment is denied without prejudice.
Stanley S. Harris
United States District Judge
Date: MAR 6 1992
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