Koeller By and Through Koeller v. Unival, Inc., 67364
| Decision Date | 18 July 1995 |
| Docket Number | No. 67364,67364 |
| Citation | 906 S.W.2d 744 |
| Parties | Katherine Anne KOELLER, By and Through Her Next Friend, John L. KOELLER, Jr., Plaintiff, v. UNIVAL, INC., Defendant-Appellant, v. SCHNUCKS MARKETS, INC., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Timothy James Phillips, Sandberg, Phoenix & Von Gotard P.C., St. Louis, for plaintiff Koeller.
Brent W. Baldwin, Bruce J. Weingard, The Baldwin Law Firm, St. Louis, for appellant Unival, Inc.
Russell F. Watters, T. Michael Ward, Kenneth K. Schmitt, Brown & James, P.C., St. Louis, for respondent Schnucks Markets, Inc.
Katherine Anne Koeller sued Unival, Inc. (Unival) as the distributor of a dangerous product and Schnucks Markets, Inc. (Schnucks) as the retailer. She settled with Unival. Schnucks denied it sold the product. Schnucks' cross-claim theory is Unival's distribution of a defective product was the cause of its being sued. It prayed for reimbursement of the cost of its defense. The defense included a trial resulting in a verdict for Schnucks. The court denied Unival's motion for summary judgment on the cross-claim. Unival appeals from summary judgment in favor of Schnucks on Schnucks' cross-claim for indemnity.
On May 5, 1988, Koeller was injured while using a "Kool-It" brand fire extinguisher. She alleged a products liability action against Jet-Aer Corporation, as manufacturer, Unival, as distributor, and Schnucks, as retailer. In its answer, Schnucks denied it sold the product. In May 1991, Schnucks filed a cross-claim against Unival, alleging it was entitled to indemnity for attorney's fees and expenses incurred in defending against Koeller's suit.
On November 4, 1994, Schnucks filed a motion for summary judgment on its cross-claim. It alleged:
As a matter of law and undisputed fact, Schnucks is entitled to be indemnified by Unival for its attorney's fees and costs incurred in defending Unival's product, the Kool-It brand fire extinguisher, because but for Unival's distribution of the product, Schnucks would not have been exposed to liability and would not have been required to incur said costs.
On August 19, 1994, Unival filed a motion for summary judgment on Schnucks' cross-claim. Unival alleged:
As a matter of law and undisputed fact, Schnucks is not entitled to be indemnified by Unival, for the primary reason that Schnucks never sold or distributed this product, and, consequently, was never a part of the fire extinguisher's chain of distribution.
On November 21, 1994, the trial court granted Schnucks' motion and denied Unival's motion. The court found:
[D]efendant, Unival, Inc., owed a duty to defend and indemnify defendant, Schnucks Markets, Inc., based upon the allegations of plaintiff's claim against defendant, Schnucks Markets, Inc., irrespective of whether Schnucks Markets, Inc. did or did not, in fact, sell the product. The fact that defendant, Schnucks Markets, Inc. raised as a defense at trial the issue that it was not the seller or that the product was not defective, should not allow the alleged upstream party, in this case, defendant, Unival, Inc., to escape its duties to indemnify the party alleged to be downstream, in this case, defendant, Schnucks Markets, Inc., in the stream...
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