Hales v. Monroe, 76-1383
| Citation | 544 F.2d 331 |
| Decision Date | 03 November 1976 |
| Docket Number | No. 76-1383,76-1383 |
| Parties | Dean HALES et al., Green Colonial, Inc., Appellee, and Dover Corporation, Appellant, v. Harold MONROE, Iowa Plumbers Supply Co., Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Dan Hale, St. Joseph, Mo., for appellant.
Joseph K. Houts, St. Joseph, Mo., for appellee Green Colonial, Inc.
James Borthwick, Kansas City, Mo., for appellee Iowa Plumbers Supply Co.
Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
The sole question on appeal is whether a supplier and a distributor, held strictly liable for supplying and selling a defective product, have the right to seek indemnity from the manufacturer of that product, who was also held strictly liable.
With parts and instructions furnished by the distributor and manufacturer, the supplier's installer converted a Peerless 300,000 BTU natural gas heater to a propane heater. The heating unit caused a fire and destroyed Dean Hales' store. We affirmed a judgment on the verdict in Hales' tort action against Green Colonial, Inc., the supplier, Iowa Plumbers Supply Co. (IPS), the distributor and Dover Corp., the manufacturer of the unit in an earlier decision. Hales v. Green Colonial, Inc., 490 F.2d 1015 (8th Cir.), reh. denied (1974).
Green Colonial and IPS cross-claimed for indemnity against the manufacturer, Dover, who asserted that, since both Green Colonial and IPS were guilty of primary negligence, they could not obtain indemnity under Missouri law. Because the district court had not ruled on them, we declined to rule on the merits of the cross-claims. The parties subsequently agreed that there were no issues of fact remaining and each moved for summary judgment. The district court, the Honorable John W. Oliver, in a thorough opinion, granted summary judgment for indemnity in favor of IPS and Green Colonial against Dover, and included an award for attorney fees and expenses incurred by them in the defense of the original action. Hales v. Green Colonial, Inc., 402 F.Supp. 738 (W.D.Mo.1975).
We affirm the judgment awarding indemnity on the basis of the district court's opinion. However, we vacate the award of attorney fees and costs, and remand to the district court to enter a new judgment on these fees and costs based on 50% of the fees and costs submitted.
The original complaint alleged one count based upon the supplying of the defective heating unit. In addition it alleged an independent count of negligence against IPS and Green Colonial based on their failure to properly inspect the unit upon receiving it from Dover, as well as their negligence arising from actual knowledge that the stove was not working properly after it was installed and...
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