Steffen v. Viking Corp.

• Decision Date: 06 July 2006
• Docket Number: Civil No. 2004-10592-RBC.
• Citation: 441 F.Supp.2d 245
• Parties: Edward STEFFEN and Marsha Steffen, Plaintiffs, v. VIKING CORPORATION, Defendant, Third Party Plaintiff, v. Hillside Machine, Inc., Third Party Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 245

441 F.Supp.2d 245

Edward STEFFEN and Marsha Steffen, Plaintiffs, v. VIKING CORPORATION, Defendant, Third Party Plaintiff, v. Hillside Machine, Inc., Third Party Defendant.

Civil No. 2004-10592-RBC.

United States District Court, D. Massachusetts.

July 6, 2006.

William J. Doyle, Jr., Leavis & Rest, P.C., Boston, MA, for Plaintiffs.

Robert P. Powers, Theodorus D.J. Urbanski, Melick, Porter & Shea, LLP, Boston, MA, for Defendant, Third Party Plaintiff.

Kevin J. Fleming, Davis, White, & Sullivan P.C., Christopher J. Sullivan, Davis, White & Pettingell, LLC, Boston, MA, Thomas J. Delaney, The Law Office of Martin B. Schneider, P.C., Salem, MA, for Third Party Defendant.

MEMORANDUM AND ORDER ON THIRD PARTY DEFENDANT, HILLSIDE MACHINE, INC.'S MOTION FOR SUMMARY JUDGMENT (# 44)

COLLINGS, United States Magistrate Judge.

I. Introduction

On or about February 9, 2004, plaintiffs Edward and Marsha Steffen filed their three-count complaint (# 2) against defendant Viking Corporation (hereinafter "Viking") in the Superior Court for Middlesex County in Massachusetts. Approximately six weeks later, Viking removed the case to the United States District Court for the District of Massachusetts. (# 1) Viking filed its answer to the complaint on March 26, 2004.(# 7)

In early December, 2004, Viking initially moved for leave to file a third party complaint. (# 22) That motion was denied for failure to comply with the local rules, but a similar motion was filed on February 22, 2005.(# 29) This second motion for leave to file a third party complaint was ultimately allowed in part and denied in part¹. Essentially, Viking was allowed to file and serve a third party claim against Hillside Machine, Inc. (hereinafter "Hillside"), alleging a claim of express or implied contractual indemnification. The third party complaint incorporating the contractual indemnity claim was filed on July 25, 2005(# 34), with Hillside filing its answer seventeen days thereafter. (# 35)

Discovery was undertaken in the normal course and, in accordance with a Scheduling Order issued on March 8, 2006(# 43), Hillside submitted a motion for summary judgment (# 44) together with a memorandum of law in support and affidavit (# 45) as well as a number of exhibits on May 3, 2006. (## 47-61²) On May 25, 2006, Viking filed an opposition to the dispositive motion including several exhibits. (# 66³) The following day the plaintiffs, Edward and Marsha Steffen, too, filed an opposition to Hillside's summary judgment motion (# 64) which basically adopted the arguments advanced by Viking. With the submission of Hillside's response (# 65) on June 5, 2006, the record is complete and the motion for summary judgment stands ready to be resolved.

II. The Facts

The recitation of the facts shall be based upon the pleadings in the case, most particularly the parties' respective statements of undisputed material facts. To the extent that the parties' facts are not contested they shall be deemed admitted and shall be reiterated herein verbatim, albeit without quotation marks. See L.R. 56.1.⁴ Reference throughout shall be to the statements of fact themselves rather than the supporting materials unless otherwise noted.

First, to set the stage: Plaintiffs Edward Steffen and Marsha Steffen are husband and wife. (# 2 ¶ 1) At all times relevant to the events in this case, Edward Steffen was an employee of third party defendant Hillside. (# 45 ¶ 35) On or about December 2, 2002, Edward Steffen allegedly was injured in an accident at work which occurred in the vicinity of a machine that Hillside had purchased from Viking. (# 2 ¶ 7⁵) Edward Steffen collected workers' compensation benefits as a result of the accident. (# 45 ¶ 35) The Steffens filed suit against Viking alleging claims of negligence, breach of warranty and loss of consortium. (# 45) Viking, in turn, filed the third party complaint against Hillside alleging a claim for contractual indemnification. (# 34)

Now, to the general factual background: On or about May 11, 1992, Paul B. Renzella (hereinafter "Renzella"), the president and owner of Hillside, placed an order for a Washer with a sludge evaporator oven (hereinafter "the Oven") manufactured by Viking (hereinafter "the Washer") with John Zanetti ("Zanetti") of AMS Equipment Sales. (# 45 ¶ 4) Hillside had never previously purchased any product from Viking. (# 45 ¶ 7) Prior to placing the order for the Washer, Hillside had no written or oral communication with anyone at Viking; the order was placed after reviewing a Viking catalogue and consulting with Zanetti. (# 45 ¶ 6) Hillside relied entirely upon Viking to design and manufacture the Washer in accordance with the requested specifications. (# 45 ¶ 5)

On June 1, 1992, approximately twenty days after placing the order, Hillside received a confirming facsimile from Gus Enegren (hereinafter "Enegren"), then the owner of Viking. (# 45 ¶ 6) As reflected in Viking Invoice # 29783, the total purchase price for the Washer was $12,210.35. (# 45 ¶ 9) Hillside paid an additional $1,251.64 charge for the crating and shipping of the Washer. (# 45 ¶ 10) In September of 1992, the Washer was delivered to Hillside fully assembled. (# 45 ¶ 11)

The operating manual supplied by Viking with the Washer specified that no caustic cleaners were to be used in its operation. (# 66 ¶ 1) Viking insisted on the ban on caustic cleaners because their corrosive effect typically damaged the Washer, and, indeed, the company continues to recommend that caustic cleaners not be used in the washers it manufactures and/or distributes. (# 65 ¶¶ 2,3) Upon delivery of the Washer, Hillside noticed that the operating manual warned against using caustic cleaning solutions in the Washer. (# 45 ¶ 12) Renzella of Hillside spoke with Enegren of Viking about the ban on caustic cleaners within the first thirty to sixty days after the Washer was delivered. (# 65 ¶ 4) Enegren told Renzella that the warning was there due to the potential danger to an operator of the Washer whose skin would be exposed to such a strong cleaning agent. (# 45 ¶ 12) Renzella told Enegren that Hillside had used caustic solutions in the past without a problem, that it was unreasonable not to be able to use a caustic cleaner in the Washer and that Hillside intended to do so. (# 45 ¶ 12; # 65 ¶ 6⁶)

Hillside hired a plumber and an electrician to assist with the installation of the Washer. (# 45 ¶ 14) When the Washer was inspected by the Boston Gas Company after it had been installed, the Boston Gas Company advised Hillside that the Washer was not properly approved for use in Massachusetts. (# 45 ¶ 15) Although additional work had to be done on the Washer in order for it to be operated legally in the Commonwealth, no modifications to the Oven were made before the accident. (# 45 ¶ 16)

On October 14, 1992, Hillside's attorney, John J. Todisco, Esq., wrote a letter to Viking detailing the additional work needed to be done for the Washer to meet American Gas Association or Underwriters Laboratory approval. (# 45 ¶ 17) Shortly thereafter Hillside received an October 19, 1992 letter from Enegren of Viking thanking Hillside for purchasing the Washer. (# 45 ¶ 18) On November 17, 1992, Zanetti submitted an application for approval of use of the Washer in Massachusetts. (# 45 ¶ 19)

After the Washer had been approved in Massachusetts, Hillside continued to experience problems with it although none with the Oven. (# 45 ¶ 20) Renzella made a number of telephone calls to Enegren. (# 45 ¶ 20; # 66 ¶ 7) Enegren took notes regarding the conversations he had with Renzella using a contact management software. (# 45 ¶ 21) Samples of those notes read as follows: the July 22, 1993 Enegren telephone note states "`What can we do to get going again.' I suggested we exchg m/c. He will consider o'nite." (# 45 ¶ 22); the July 28, 1993 Enegren telephone note states "(Cont) and cost me so much money in lost business and down time". We began asking for a complete list of defects so we could effect a correction last February but Paul was always "too busy'!" (# 45 ¶ 23); the August 2, 1993 Enegren telephone note states "Called today and said got things going again and is considering now how to deal with machine. Not sure if wants $ back, replacement, or repairs ... W/C us."; and the August 11, 1993 Enegren telephone note states

"Paul called bitching again about down time and costs etc. Said has t/t his atty who said `Kill him'. Paul said he'd be happy just to get his $ back and would sign a release liability for warranty or future damages. Told him to get me a (Cont) release fm his atty and I would consider the release and suggestion together."

Third Party Defendant's Memorandum # 45 ¶ 25.

Viking sent Howard Whitetree (hereinafter "Whitetree")to Hillside to deal with the alleged problems with the Washer and to answer Hillside's questions about how the Washer was built, designed or used. (TR 66 ¶ 8) Whitetree reported to Viking that he had observed Hillside using caustic cleaners in the Washer. (# 66 ¶ 9) Hillside's use of caustic cleaning solutions in the Washer was one of the primary reasons Viking sought a release from Hillside. (# 45 ¶ 27; # 66 ¶ 10)

Viking received a letter from an attorney representing Hillside referencing modifications that Hillside made to the Washer with respect pipes in the manifold, a low water shut down, a water temperature gauge and a friction brake on the door. (# 66 ¶ 11) Three photos of the Washer reveal modifications from the original design of the Washer with respect to the door latch, timer water temperature gauge, temperature gauge and evaporator chamber door, although Hillside admits that the only modification to the Oven was the addition of a hasp and padlock to secure the Oven door after the Accident. (# 65 at 1-2; # 66 ¶ 12) Although Viking was informed that Hillside would be making modifications to the Washer, Viking did not believe that Renzella had the experience to...