William H. Field Co., Inc. v. Nuroco Woodwork, Inc.
| Decision Date | 28 November 1975 |
| Docket Number | No. 7061,7061 |
| Citation | 115 N.H. 632,348 A.2d 716 |
| Parties | WILLIAM H. FIELD COMPANY, INC. v. NUROCO WOODWORK, INC. C. O. PORTER MACHINERY CO. v. NUROCO WOODWORK, INC. SECURITY INSURANCE COMPANY v. NUROCO WOODWORK, INC., et al. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney, Bass & Green and Claudia C. Damon, Manchester, (Ms. Damon orally) for plaintiff William H. Field Company, Inc.
Hall, Morse, Gallagher & Anderson and Robert E. K. Morrill, Concord, (Mr. Morrill orally) for the plaintiff C. O. Porter Machinery Co.
Devine, Millimet, Stahl & Branch, William S. Gannon and E. Donald Dufresne, Manchester (Mr. Dufresne orally) for defendant Nuroco Woodwork Co., Inc., and for plaintiff Security Ins. Co.
The issues in this case, transferred on an agreed statement of facts, are (1) whether motions to dismiss third-party actions by the manufacturer and the distributor of a hydraulically actuated cut-off band saw against the employer of an injured workman covered by workmen's compensation, who with his wife has brought suit against these plaintiffs for personal injuries and loss of consortium, should be granted and (2) whether coverage is afforded the employer under a general liability policy issued by Security Insurance Company with respect to these third-party actions. Two questions to resolve these issues were transferred by Johnson, J.
Edward Peterson, while in the employ of Nuroco Woodwork Inc., was injured on a Hydra-Cut saw on May 13, 1969. He has received workmen's compensation from Security Insurance Company, Nuroco's insurer. Peterson brought suit against C. O. Porter Machinery, Inc., the manufacturer of the saw, and William H. Field Company, Inc., the distributor, to recover for personal injuries, and his wife Shirley sued the same defendants to recover for loss of consortium. These actions are based on negligence, strict liability and warranty.
Porter and Field instituted third-party actions against Nuroco claiming negligence on Nuroco's part in damaging the guard on the saw, failing to obtain a replacement, making ineffective repairs and operating the machine without a guard after another break of the guard. Porter and Field in substance claim that if they are liable to the Petersons, Nuroco is liable to them. This claim is based on contentions that Nuroco's negligence was either the sole cause or was primary, gross and wanton in comparison with their negligence, if any, and that Nuroco owed a duty to Porter and Field to operate the machine properly.
We find no basis for indemnification of Porter and Field by Nuroco with respect to the claims of either Edward or Shirley. Although in Wentworth Hotel v. Gray, Inc., 110 N.H. 458, 272 A.2d 583 (1970) and Sears, Roebuck & Co. v. Philip, 112 N.H. 282, 294 A.2d 211 (1972), third-party plaintiffs were allowed indemnity, the basis was an implied obligation on the part of a contractor to indemnify the owner for damages resulting from the contractor's failure to perform the work with due care and in a workmanlike manner.
In the case now before us, there is no express or implied warranty flowing from Nuroco to Porter and Field and there is no duty owed by Nuroco to them as to the manner in which the saw was to be used. 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. 3 L. Frumer & M. Friedman, Products Liability § 44.02(3)(d) (1975).
In Morrissette v. Sears, Roebuck & Co., 114 N.H. 384, 387, 322 A.2d 7, 9 (1974), it was mentioned that the right to indemnity may arise where one is legally required to pay an obligation for which another is primarily liable and that in actions of tort it can arise only where one who, without fault on his part, has been compelled by a legal obligation to pay an injured party for injuries caused by fault of another. Porter and Field gain no support from this however. Liability on their part, if any, even in strict liability would not be based on any legal requirement that they pay for damages resulting from the negligence of Nuroco but rather on their own liability based on a defect in the saw.
Under the principle referred to in Morrissette, it is only when the negligence of the indemnitor has caused constructive or derivative liability to be imposed on the indemnitee that liability for indemnity arises. In this case, nothing Nuroco did or failed to do could impose any constructive or derivative liability on Porter or Field. Their liability to the Petersons, if any, is primary. McClish v. Niagara Machine & Tool Works, 266 F.Supp. 987, 990-91 (S.D.Ind.1967); Annot., 28 A.L.R.3d 943, 950-55, 981-88 § 9 (1969, Supp.1974).
The question of contribution arises only in the event there are joint tortfeasors. Because of the Workmen's Compensation Act, (RSA...
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