Decker v. Black and Decker Mfg. Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 389 Mass. 35,449 N.E.2d 641
• Parties: David H. DECKER v. The BLACK AND DECKER MANUFACTURING COMPANY et al. 1 Lenox Machine Company, Inc., Third-Party Defendant.
• Decision Date: 29 April 1983

Page 641

449 N.E.2d 641

389 Mass. 35

David H. DECKER v. The BLACK AND DECKER MANUFACTURING COMPANY et al.

¹

Lenox Machine Company, Inc., Third-Party Defendant.

Supreme Judicial Court of Massachusetts,

Berkshire.

Argued Jan. 5, 1983.

Decided April 29, 1983.

David O. Burbank, Pittsfield, for The Black and Decker Mfg. Co. & another.

Philip J. Callan, Jr., Springfield, for Lenox Machine Co., Inc.

Before WILKINS, LIACOS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The defendants, The Black and Decker Manufacturing Company (Black & Decker) and Pittsfield Supply Company, Inc. (Pittsfield), appeal from summary judgment against them on their third-party complaints for indemnity against Lenox Machine Company, Inc. (Lenox). We affirm.

The plaintiff was injured in the course of his employment for Lenox when a radial arm saw that he was operating "kicked back" a piece of formica that he was cutting and caused his hand to be pulled into the revolving blade. The saw was manufactured by Black & Decker and sold to Lenox by Pittsfield. When Lenox purchased the saw, it was equipped with an "anti-kickback" device designed to prevent material which was being fed through the saw from moving in a direction opposite to its intended path. An employee of Lenox had removed the device prior to the plaintiff's injury, even though the officers of Lenox were aware that the device was an important safety device. Lenox's employees were instructed with respect to the use of the machine, but they were not informed that a safety device had been removed, nor allowed to use the machine with the safety device.

The plaintiff received double compensation pursuant to the workmen's compensation statute, G.L. c. 152, § 28, upon a finding by the Industrial Accident Board of "serious and wilful misconduct of [the] employer." G.L. c. 152, § 28, as appearing in St.1943, c. 529, § 9. The plaintiff did not reserve his common law rights against his employer. G.L. c. 152, § 24.

The plaintiff commenced an action against Black & Decker alleging negligent manufacture, negligent failure to warn, and negligent failure to correct defects in the saw. Subsequently, the plaintiff joined Pittsfield as a party defendant, alleging negligent failure to inspect, negligent failure to warn, and breach of express and implied warranties. See G.L. c. 106, §§ 2-313, 2-314. Black & Decker and Pittsfield filed a third-party complaint against Lenox, alleging that the plaintiff's injuries were caused by the negligence of Lenox and that Lenox violated an implied duty to use the saw in a safe manner. The third-party plaintiffs further alleged that Lenox impliedly agreed to indemnify them for any losses they incurred as a result of the plaintiff's injuries.

Lenox moved to dismiss the third-party complaint for failure to state a claim upon which relief can be granted, Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), or, in the alternative, for summary judgment, Mass.R.Civ.P. 56, 365 Mass. 824 (1974). On reviewing the pleadings and affidavits, a judge of the Superior Court allowed the motion and entered summary judgment for Lenox dismissing the third-party complaint. The judge reasoned that there was no showing of an express or an implied contractual obligation on the part of Lenox to indemnify Black & Decker and Pittsfield. The third-party plaintiffs appealed to the Appeals Court and applied for direct appellate review. We granted their application, and we affirm.

I. Right to Indemnity.

In Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 373 N.E.2d 957 (1978), we indicated that any right of a third-party tortfeasor to recover indemnity from an employer who has paid workmen's compensation benefits to an injured employee, must stem, if at all, from an express or implied contract of indemnity or from an obligation implied from the relationship of the parties. Id. at 526-527, 373 N.E.2d 957. The facts of Westerlind did not present an occasion to reach the issue whether such a right of indemnity existed. Id. at 527, 373 N.E.2d 957. Therefore, leaving the ultimate question open, we held that the third-party tortfeasor had no right to recover from the employer in that case. Id.

In New Bedford Gas & Edison Light Co. v. Maritime Terminal, Inc., 380 Mass. 734, 405 N.E.2d 653 (1980), we held again that, as there was insufficient evidence of an express or implied contract of indemnity, there was no need to reach the question whether a right of indemnity existed. Id. at 735, 405 N.E.2d 653. Additionally, we held that there was nothing in the relationship of the parties to imply an obligation to indemnify. Id. at 736, 405 N.E.2d 653. We noted that "[s]uch a radical departure from the reasonable expectation of the parties, considering their relationship, is unwarranted in the absence of a clear expression in the contract." Id.

In Whittle v. Pagani Bros. Constr. Co., 383 Mass. 796, 422 N.E.2d 779 (1981) we followed the majority rule allowing indemnity against an employer on the basis of an express contract to indemnify. Id. 383 Mass. at ---, Mass.Adv.Sh. at 1466, 422 N.E.2d 779. We held that the contract between the employer-subcontractor and the third-party general contractor was sufficient to impose an obligation on the employer to indemnify the general contractor. Id. 383 Mass. ---, Mass.Adv.Sh. at 1465, 422 N.E.2d 779.

Turning to the case before us, and assuming without deciding that we would recognize a right to indemnification based on an implied contract to indemnify, we find no implied contract here. The only contract between Black & Decker and Pittsfield, on the one hand, and Lenox, on the other, is an agreement for sale of the radial arm saw. The majority rule is that a sales agreement alone is not a sufficient basis on which to imply a contractual obligation on the part of a buyer to indemnify a seller for damages paid to an injured employee of the buyer. Steinmetz v. Bradbury Co., 618 F.2d 21, 24-25 (8th Cir.1980). In re General Dynamics Asbestos Cases, 539 F.Supp. 1106, 1109-1110 (D.Conn.1982). Bullock v. Black & Decker, Inc., 502 F.Supp. 580, 581-583 (E.D.Mich.1980). Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 95-96, 429 A.2d 808 (1980). Cordier v. Stetson-Ross, Inc., 604 P.2d 86, 91-92 (Mont.1979). William H Field Co. v. Nuroco Woodwork, Inc., 115 N.H. 632, 634, 348 A.2d 716 (1975). See Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Auth., 693 F.2d 1, 2-3 (1st Cir.1982); Cutter v. Massey-Ferguson, Inc., 114 Mich.App. 28, 36, 318 N.W.2d 554 (1982).

In Araujo, the United States Court of Appeals for the First Circuit recently stated that a contractual right to indemnity will be implied only when "there are unique special factors" demonstrating that the parties intended that the putative indemnitor bear the ultimate liability. Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Auth., supra at 2, citing Roy v. Star Chopper Co., 442 F.Supp. 1010, 1019 (D.R.I.1977), aff'd, 584 F.2d 1124 (1st Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979). In the view of the Montana Supreme Court, to hold that a purchaser impliedly agrees to use a product in such a manner as to prevent the manufacturer from being exposed to liability "would be stretching the concept of contract out of all relation to reality." Cordier v. Stetson-Ross, Inc., supra, quoting 2A A. Larson, Workmen's Compensation § 76.84, at 14-746 (1982). "No duty flows upstream from the purchaser to the manufacturer. Misuse of the product may be a good defense for the manufacturer, but it does not furnish a basis for indemnity." William H. Field Co. v. Nuroco Woodwork, Inc., supra. See In re General Dynamics Asbestos Cases, supra at 1110; Olch v. Pacific Press & Shear Co., 19 Wash.App. 89, 94-95, 573 P.2d 1355 (1978). See generally 2A A. Larson,supra at § 76.84. We find these authorities persuasive. We hold, therefore, that a sales agreement, without more, is not a sufficient basis on which to imply a contractual obligation on the part of a buyer to indemnify a manufacturer or seller. ² Nor do we find any "unique special factors" demonstrating that the parties intended that Lenox bear the ultimate liability. See Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Auth., supra.

Likewise, there is no evidence that the relationship between Lenox and the third-party plaintiffs is a special relationship carrying with it an obligation to indemnify the third parties. Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 527, 373 N.E.2d 957 (1978). Their relationship is not such a relationship. White v. Johns-Manville Corp., 662 F.2d 243, 248 (4th Cir.1981) (Virginia law). SW (Del.), Inc. v. American Consumers Indus., 450 A.2d 887, 889-890 (Del.1982). Houdaille Indus., Inc. v. Edwards, 374 So.2d 490, 494 (Fla.1979). Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 165, 561 P.2d 450 (1977). Arcell v. Ashland Chem. Co., 152 N.J.Super. 471, 490, 378 A.2d 53 (1977). Boldman v. Mt. Hood Chem. Corp., 288 Or. 121, 124-129, 602 P.2d 1072 (1979). Olch v. Pacific Press & Shear Co., supra 19 Wash.App. at 93-95, 573 P.2d 1355. See Bua, Third Party Practice in Illinois: Express and Implied Indemnity, 25 De Paul L.Rev. 287, 313 (1976); Comment, The Effect of Workers' Compensation Laws on the Right of a Third Party Liable to an Injured Employee to Recover Contribution or Indemnity from the Employer, 9 Seton Hall L.Rev. 238, 246-263 (1978). Nor does such a special relationship arise by virtue of the nature of the third-party plaintiffs' liability to the injured employee. Black & Decker and Pittsfield argue that they are entitled to indemnification because they did not join in the act of negligence which caused the plaintiff's injury. We reject this argument.

We begin with the proposition that indemnity is permitted only when the would-be indemnittee does not join in the negligent act. Afienko v. Harvard Club of Boston, 365 Mass. 320, 336, 312 N.E.2d 196 (1974), citing Stewart v. Roy Bros., 358 Mass....