Hall v. Triangle Enter ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Garland, et al. v. Triangle Nos. 02-5096/5097/
ELECTRONIC CITATION: 2003 FED App. 0225P (6th Cir.) Enterprises, et al. 5098/5216
File Name: 03a0225p.06
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v.
UNITED STATES COURT OF APPEALS
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TRIANGLE ENTERPRISES, INC.,
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Defendant/Third-Party
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FOR THE SIXTH CIRCUIT
Plaintiff-Appellant,
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OWENS CORNING FIBERGLAS
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CORPORATION,
X
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Defendant.
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No. 02-5096
HORACE GARLAND; MARTHA
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GARLAND, No. 02-5098
Plaintiffs, - -
Nos. 02-5096/ FRANCES DEE HALL,
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5097/5098/5216
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individually and as Executrix
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TRIANGLE ENTERPRISES, INC., >
Third-Party -
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of the Estate of Burl R. Hall,
Defendant-Appellant, -
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Plaintiff,
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v.
OWENS CORNING FIBERGLAS -
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TENNESSEE VALLEY
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CORPORATION, et al.,
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AUTHORITY,
Defendant/Third-Party -
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Defendants,
Plaintiff-Appellee. -
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TRIANGLE ENTERPRISES, INC.,
- Defendant/Third-Party
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- Plaintiff-Appellant,
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No. 02-5097
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v.
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J. PAUL CARNEAL; MARY
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TENNESSEE VALLEY
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CARNEAL,
Plaintiffs, -
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AUTHORITY,
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TENNESSEE VALLEY Third-Party
- Defendant-Appellee.
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Third-Party -
AUTHORITY,
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Defendant-Appellee, - -
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No. 02-5216
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RONNIE D. BEAN,
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BADHAM INSULATION
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COMPANY; BRAUER SUPPLY Plaintiff,
COMPANY, - TRIANGLE ENTERPRISES, INC.,
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Defendants, - Defendant/Third-Party
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Nos. 02-5096/5097/ Garland, et al. v. Triangle 3 4 Garland, et al. v. Triangle Nos. 02-5096/5097/
5098/5216 Enterprises, et al. Enterprises, et al. 5098/5216
- Tennessee, for Appellee. ON BRIEF: Kathy P. Holder,
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Plaintiff-Appellant,
Joseph B. Myers, Jr., Robert L. Steinmetz, FROST, BROWN
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v. & TODD, Louisville, Kentucky, for Appellant. Edwin W.
- Small, Thomas A. Robins, TENNESSEE VALLEY
OWENS CORNING FIBERGLAS - AUTHORITY, Knoxville, Tennessee, for Appellee.
CORPORATION, -
Defendant, -
_________________
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TENNESSEE VALLEY OPINION
Third-Party -
AUTHORITY, _________________
N WILLIAM W SCHWARZER, Senior District Judge.
Defendant-Appellee.
Third-party Triangle Enterprises, Inc. (“Triangle”) appeals
from the dismissal of its third-party complaints for indemnity
Appeal from the United States District Courts against third-party defendant Tennessee Valley Authority
for the Western District of Kentucky (“TVA”). In the four underlying cases, consolidated on
at Paducah and Owensboro. appeal, the plaintiffs asserted that they were injured as a
Nos. 01-00260; 01-00254; 01-00191; 01-00249— result of exposure to asbestos and alleged claims for damages
Thomas B. Russell; Joseph H. McKinley, Jr.; based on strict liability, negligence, and breach of implied
Edward H. Johnstone, District Judges. warranty. Their complaints alleged, in substance, that
Triangle was negligent in removing and installing asbestos-
Argued: June 10, 2003 containing products and failing to protect workers against
asbestos exposure. In addition, the Garland complaint alleged
Decided and Filed: July 9, 2003 failure to warn workers and to follow guidelines for safe
handling of asbestos. Triangle filed third-party complaints
Before: MOORE and GIBBONS, Circuit Judges; against TVA for apportionment of fault based on allegations
SCHWARZER, Senior District Judge.* that TVA distributed and installed asbestos products at the
work site. In its amended third-party complaints, Triangle
_________________ further sought indemnity, alleging that TVA was negligent in
failing to provide a safe place of employment and safeguards
COUNSEL necessary to protect its employees, that any negligence on
Triangle’s part was secondary and passive, and that the active
ARGUED: Kathy P. Holder, FROST, BROWN & TODD, and primary negligence was TVA’s.
Louisville, Kentucky, for Appellant. Edwin W. Small,
TENNESSEE VALLEY AUTHORITY, Knoxville, TVA moved to dismiss the third-party complaints pursuant
to Rule12(b)(6) and the district courts granted the motions.
*
Fed. R. Civ. P. 12(b)(6). They held that if there is proof of
The Honorable William W Schwarzer, Senior United States District fault on the part of TVA, an apportionment instruction is
Judge for the Northern District of California, sitting by designation.
Nos. 02-5096/5097/ Garland, et al. v. Triangle 5 6 Garland, et al. v. Triangle Nos. 02-5096/5097/
5098/5216 Enterprises, et al. Enterprises, et al. 5098/5216
appropriate. An indemnity claim, however, was not available The pleadings disclose that Triangle is an independent
because wrongful acts of TVA, if any, will not expose contractor who installed and tore out asbestos products on the
Triangle to liability. It is only the wrongful acts of Triangle premises of power plants in Kentucky owned and operated
which will expose it to liability. This appeal followed. The by the TVA. TVA is alleged to have provided asbestos-
district courts had jurisdiction under 28 U.S.C. § 1442(a)(1), containing products and to have failed to furnish a safe
and we have jurisdiction of the appeal under 28 U.S.C. workplace and to take proper precautions. The four plaintiffs
§ 1291. Because we find the record to be insufficient at this who worked at those power plants allegedly contracted
stage to determine whether Triangle may be entitled to asbestos-related diseases as a result of their occupational
indemnity, we vacate the judgments and remand for further exposure to asbestos at the TVA worksite.
proceedings.
A complaint may not be dismissed for failure to state a
DISCUSSION claim “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
Kentucky law recognizes indemnity claims between entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
tortfeasors. The leading case of Brown Hotel Co. v. (1957). The skeletal pleadings, which constitute the entire
Pittsburgh Fuel Co., 224 S.W.2d 165 (1949), states: record before us, do not enable us to determine as a matter of
law that Triangle could not establish that TVA’s fault, if any,
Where one of two parties does an act or creates a hazard was “the primary and efficient cause of the injury.” Thus, we
and the other, while not concurrently joining in the act, cannot say, based on the current state of the pleadings, that
is, nevertheless, thereby exposed to liability to the person Triangle can prove no set of facts entitling it to indemnity.
injured, or was only technically or constructively at fault,
as from the failure to perform some legal duty of CONCLUSION
inspection and remedying the hazard, the party who was
the active wrongdoer or primarily negligent can be For the reasons stated, we VACATE the judgments below
compelled to make good to the other any loss he and, without passing on the merits, REMAND for further
sustained. proceedings consistent with this decision.
224 S.W.2d at 167. The Kentucky Supreme Court only
recently reaffirmed the Brown Hotel principle in Degener v.
Hall Contracting Corp., 27 S.W.3d 775, 780 (2000), holding
that the right to indemnity is available “where both parties
have been at fault, but not in the same fault, towards the party
injured, and the fault of the party from whom indemnity is
claimed was the primary and efficient cause of the injury”
(quoting Louisville Ry. Co. v. Louisville Taxicab & Transfer
Co., 77 S.W.2d 36, 39 (1934)).