Walmart Inc. et al v. Reddy Ice Corporation

Filing 47

MEMORANDUM OPINION AND ORDER granting 31 Motion for Summary Judgment and denying 16 Motion for Summary Judgment. Signed by Honorable Timothy L. Brooks on March 6, 2025. (tmc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
WALMART INC. and WAL-MART
STORES ARKANSAS, LLC
V.

PLAINTIFFS

CASE NO. 5:24-CV-5065

REDDY ICE CORPORATION

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiffs Walmart Inc. and Wal-Mart Stores Arkansas , LLC (together, "Walmart")
brought this suit seeking indemnification and contribution from Defendant Reddy Ice
Corporation for a settlement Walmart entered regarding a slip-and-fall that occurred in
one of its stores after a Reddy Ice freezer located in the store leaked .
Now before the Court are the parties' cross-motions for summary judgment. Reddy
Ice filed its Motion for Summary Judgment (Doc. 16) in September 2024, and Walmart
filed its Motion for Summary Judgment (Doc. 31) in January 2025 . Both Motions are ripe
for decision.1 For the reasons stated herein , Reddy Ice's Motion for Summary Judgment
(Doc. 16) is DENIED and Plaintiffs' Motion for Summary Judgment (Doc. 31) is

GRANTED .

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Additionally, the Court has considered : Reddy Ice's Memorandum Brief in Support of its
Motion for Summary Judgment (Doc. 17) and Statement of Facts (Doc. 18); Walmart's
Response in Opposition (Doc. 22) and Statement of Facts (Doc. 23) ; Reddy Ice's Reply
(Doc. 26) ; Walmart's Memorandum Brief in Support of its Motion for Summary Judgment
(Docs. 32 (redacted) & 34 (unredacted)) and Statement of Facts (Docs. 33 (redacted) &
35 (unredacted)) ; Reddy Ice's Response in Opposition (Doc. 38) and Statement of Facts
(Doc. 39) ; and Walmart's Reply (Doc. 43).

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I.

BACKGROUND

A. Supplier Agreement
The facts in this case are largely undisputed. In late 2013 , Reddy Ice and Walmart
entered into a Walmart Grocery Supplier Agreement, contracting for Reddy Ice to provide
bagged ice for sale in Walmart's stores . (Doc. 18,

,m 2, 3).

Included in the Supplier Agreement was an indemnification provision , which reads
in relevant part:
14. INDEMNIFICATION. [Reddy Ice] shall protect, defend , hold harmless
and indemnify [Walmart] . . . from and against any and all lawsuits, claims,
demands, actions, liabilities, losses, damages, costs and expenses
(including attorneys' fees and court costs), regardless of the cause or
alleged cause thereof, and regardless of whether such matters are
groundless, fraudulent or false , arising out of any actual or alleged:

(b) [l]njury to any person , . . . by whomsoever suffered , resulting or claimed
to result in whole or in part from any actual or alleged use of or latent or
patent defect in , the Merchandise, including but not limited to : (i) any actual
or alleged failure to provide adequate warnings, labelling or instructions ; (ii)
any actual or alleged improper construction or design of the Merchandise;
or (iii) any actual or alleged failure of the Merchandise to comply with
specifications or with any express or implied warranties of Supplier.

(d) Act, activity or omission of [Reddy Ice] or any of its employees,
representatives or agents, including but not limited to activities on
[Walmart's] premises and the use of any vehicle, equipment, fixture or
material of [Reddy Ice] in connection with any sale to or service for
[Walmart] ; and
(e) Any installation or display by [Reddy Ice] of Merchandise covered by this
[Agreement].
(Doc. 42 , p. 4 ). The Agreement defines "Merchandise" as "all products, goods, materials,
equipment, articles, and tangible items supplied by [Reddy Ice] to [Walmart] within the

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Territory, and all packaging, instructions, warnings, warranties , advertising and other
services included therewith. " Id. at p. 2.
B. The Slip-And-Fall by The Freezer
Reddy Ice sells bagged ice from self-service freezers at various retailers, including
the Walmart store in Pocahontas, Arkansas where the injury occurred. On June 27, 2016,
Melissa Foster slipped and fell at the Pocahontas Walmart when she stepped on a wet
floormat in front of the Reddy Ice freezer. (Doc. 18, ,r 18). Approximately two hours before
this occurred , a representative from Reddy Ice's independent co-packer, Watson Ice
Company, LLC , had delivered ice to the freezer; he did not observe any water leaking
from the freezer display at that time and did not receive reports of leaking water from
Walmart personnel until after the fall. Id. at ,r,r 15-17. Walmart contends its employees
did not discover the water until after Ms. Foster's fall. Id. at ,r 21.
After the fall, Walmart contacted Reddy Ice, and Reddy Ice sent Watson Ice to
inspect the freezer. Id. at ,r 22 . The Watson Ice representative arrived later that day and
determined that the freezer's heater, which allows defrosted liquid to evaporate, had
stopped working . Id. at ,r 23. Because the heater was broken the condensation
accumulated until it overflowed from the freezer's interior retention pan . Id. at ,r,r 24, 25 .
According to Watson Ice's representative , this was a "one off' incident. Id. Watson Ice
repaired the heater, and the freezer resumed functioning normally. Id. at ,r 26 ; Doc. 33 ,

,r 12.
Reddy Ice owned the freezer display at issue. (Doc. 39, ,r 4). It had recently
refurbished the freezer at one of its plants; it then instructed Watson Ice to install the
freezer in the Pocahontas Walmart approximately two-months before the slip-and-fall.

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(Doc. 33, ,i 4 ). Pursuant to its Independent Co-Packer Agreement with Reddy Ice, Watson
Ice was also responsible for manufacturing , bagging , labelling , and delivering ice to the
Pocahontas Walmart, as well as servicing and repairing the Reddy Ice freezer. (Doc. 18,

,i,i 9, 10). Wal mart, however, maintained and managed the upkeep of the floor mat located
in front of the freezer. Id. at ,i 14. In the months between the freezer's installation and the
slip-and-fall , there were no reported or observed instances of water leaking from the
freezer by Walmart or Watson Ice personnel. Id. at ,i,i 12, 13.

C. Underlying Lawsuit and Walmart's Settlement
Approximately two years after Ms. Foster's fall , she and her husband filed a
negligence action against Walmart and Reddy Ice in Randolph County Circuit Court. (Doc.
18, ,i 27; Doc. 18-10). Despite Wal mart's repeated requests, Reddy Ice denied any
obligation to defend or indemnify Walmart. (Doc. 33, ,i,i 14-16). As against Walmart, the
Fosters alleged liability for failure to reasonably maintain the premises in a safe condition
for its patrons. (Doc. 18, ,i 30). The allegations included failure to notify Reddy Ice of the
leak, failure to properly maintain the floormat in front of the freezer, failure to place an
appropriate warning sign, and failure to monitor or inspect the floor by the freezer, which
allowed the floormat to become wet causing Ms. Foster to slip. (Doc. 18, ,i 31 ).
As against Reddy Ice, the Fosters alleged that the floormat "was saturated , at least
in part, due to water leaking from the Reddy Ice Machine. " (Doc. 33 , ,i 8). According to
the Fosters, Reddy Ice was negligent, inter alia , in "failing to properly maintain the Reddy
[freezer] at issue and allowing it to leak water and/or other liquid onto the floor"; in "failing
to warn" Ms. Foster of the dangerous condition of concealed water leaking from the Reddy
freezer; in failing "to train [Reddy's] employees to properly maintain and/or repair its

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machines to prevent leaks"; and, in failing to know that its "Reddy [freezer] was defective
and in need of repair." (Doc. 33, ,I 10). Reddy Ice moved for summary judgment, the
Fosters did not object, and the court granted the motion, dismissing Reddy Ice with
prejudice. (Doc. 18, ,I,I 32, 33). The court's grant of summary judgment did not include an
opinion but did note "Plaintiff's decision to not challenge Reddy Ice's motion." (Doc. 33,

,I 21; Doc. 18-12). Additionally, in the action below, Walmart filed a crossclaim against
Reddy Ice, seeking contribution and indemnification. (Doc. 33, ,I 18; Doc. 33-3, pp. 6-8).
Reddy Ice filed a motion to dismiss, which the state court denied. (Doc. 33, ,I,I 17-20).
Following the grant of summary judgment to Reddy Ice in the state court, Walmart,
the Fosters, and Reddy Ice (which was still a party due to pendency of Walmart's
crossclaim) engaged in confidential mediation. (Doc. 18, ,I 34). Walmart ultimately settled
the lawsuit against it, and the Fosters executed a confidential release. Id. at ,I 35. The
Settlement Agreement defined "Released Parties" to include Walmart and expressly
exclude Reddy Ice. Id. at ,I 36. After the settlement, Wal mart filed a motion to nonsuit its
crossclaim against Reddy Ice, deciding to pursue its claim for indemnification in a
separate suit. The court granted the motion to nonsuit without prejudice, observing that
the order did not preclude Walmart's right to refile its claims against Reddy Ice. (Doc. 33,

,I 22). Due to the nonsuit, Reddy Ice's motion for summary judgment on the crossclaim
was not addressed by the state court. (Doc. 39, ,I 18).
Walmart brought this suit against Reddy Ice seeking to recover all or part of its
settlement amount and its attorneys' fees through theories of contractual indemnity,
equitable indemnity, and/or contribution. See Doc. 3. Reddy Ice moved for summary

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judgment on Walmart's contractual indemnity and contribution claims. See Doc. 16. And
Walmart moved for summary judgment on its contractual indemnity claim. See Doc. 31.

II. LEGAL STANDARD
A party moving for summary judgment must establish both the absence of a
genuine dispute of material fact and its entitlement to judgment as a matter of law. See
Fed. R. Civ. P. 56 ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 58687 (1986) ; Nat'/ Bank of Commerce of El Dorado v. Dow Chem. Co., 165 F.3d 602 , 607
(8th Cir. 1999). The same standard applies where , as here , the parties have filed crossmotions for summary judgment. Each motion should be reviewed in its own right,
however, with each side "entitled to the benefit of all inferences favorable to them wh ich
might reasonably be drawn from the record. " Wermager v. Cormorant Twp. Bd., 716 F.2d
1211 , 1214 (8th Cir. 1983); see Canada v. Union Elec. Co., 135 F.3d 1211 , 1212-13 (8th
Cir. 1998). For there to be a genuine issue of material fact, the non-moving party must
produce evidence "such that a reasonable jury could return a verdict for the nonmoving
party. " Allison v. Flexway Trucking, Inc. , 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson

v. Liberty Lobby, Inc. , 477 U.S. 242 , 248 (1986)).
Ill. DISCUSSION
The Court will first discuss Walmart's contract claim. And because it finds this claim
to be dispositive as to the parties' rights in this case , it only briefly addresses Walmart's
other claims.

A. Contractual Indemnification
The parties disagree over whether Reddy Ice is contractually required to indemnify
Walmart for its settlement with the Fosters under the terms of the Supplier Agreement.

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Broadly speaking , Reddy Ice argues that Walmart's liability in the underlying suit "was
predicated on its independent ... duty as a premises owner," and Reddy Ice could not be
at fault for Walmart's negligence in maintaining a safe premises, particularly in light of
Reddy Ice's success on summary judgment in the state court. (Doc. 38 , p. 11 ). Wal mart
objects to Reddy Ice's framing and argues that Reddy Ice's negligence liability is irrelevant
because Reddy Ice contractually agreed to indemnify Walmart for "any and all lawsuits
[and] claims" "regardless of the cause or alleged cause" that "aris[e] out of any actual or
alleged" injury to a person caused "in whole or in part" by a latent defect in Reddy Ice's
merchandise, any acts or omissions by Reddy Ice's representatives , and/or any
installation or display of Reddy Ice's merchandise.

1. Whether Walmart is Entitled to Indemnification for Its Own Negligence
The Court first addresses Reddy Ice's central contention that the law does not
require an indemnitor to indemnify losses resulting from an indemnitee's own negligence.
According to Reddy Ice, Walmart was solely responsible for maintaining its store in a
reasonably safe condition for its shoppers.
The Supplier Agreement here provides that all disputes shall be governed by
Arkansas law. In Arkansas, the rules of contract interpretation generally apply to indemnity
agreements. Pickens-Bond Const. Co. v. N. Little Rock Elec. Co., 249 Ark. 389, 392
(1970) (citations omitted). Under Arkansas law, an indemnitor's intention "to obligate itself
to indemnify" the indemnitee's "own negligence must be expressed in clear and
unequivocal terms and to the extent that no other meaning can be ascribed." Ark. Kraft

Corp. v. Bayed Sanders Const. Co. , 298 Ark. 36 , 38-39 (1989) (citation omitted). Though
this does not require any particular words, "the liability of an indemnitor for the negligence

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of an indemnitee is an extraordinary obligation to assume, and [courts] will not impose it
unless the purpose to do so is spelled out in unmistakable terms." Id. at 39 (citations
omitted).
Two cases from the Arkansas Supreme Court provide contour as to what
constitutes sufficiently clear and unambiguous language. In Pickens-Bond Construction
Co. v. North Little Rock Electric Co., the court held that an agreement obligating
indemnification for "damage or injury from whatever cause" "clearly and unequivocally"
triggered indemnification even where the indemnitee's negligence contributed to the
injury, "unless the [indemnitee's] active negligence was the sole proximate cause. " 249
Ark. at 402. In contrast, the court in Arkansas Kraft Corp. v. Boyed Sanders Construction
Co. distinguished Pickens-Bond and held that an agreement requ iring indemnification for
"any and all liabilities or claims for injuries or damages to any person or property" was
"simply not so broad as to clearly and unequivocally show the indemnitor's intention to
obligate itself to indemnify the indemnitee for the indemnitee's own negligence." 298 Ark.
at 39.
The Eighth Circuit has also spoken on this issue. In Wal-Mart Stores, Inc. v. RLI

Insurance Co., 292 F.3d 583 (8th Cir. 2002), the Eighth Circuit held that an agreement to
indemnify Walmart for "claims resulting 'in whole or in parf from any actual or alleged
defect in the [product]" was "very broad" and clearly and unambiguously covered claims
even where Walmart (the indemnitee) had been negligent. Id. at 588. Though the Eighth
Circuit did not speak to cases where the indemnitee was the sole cause of injury, this
language seems to align with the language in Pickens-Bond.

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Most recently, the Honorable Robert T. Dawson in this court determined that
language-nearly identical to the language at issue in this case-did "not require Black
and Decker [the indemnitor] to defend or indemni[f]y Wal-Mart [the indemnitee] for losses
incurred as a result of acts or omissions that [were] solely attributable to Wal-Mart." WalMart Stores, Inc. v. Black & Decker (U.S.), Inc. , 2009 WL 2524570 , at *5 (W.D. Ark. Aug .

17, 2009). There , the court distinguished Chevron U.S.A. , Inc. v. Murphy Exploration &
Production Co. , 356 Ark. 324, 313 (2004), in which the agreement required indemnity for

loss "resulting from or arising out of any liability caused by or connected with the . . . sole
negligence of [the indemnitee]. " Black & Decker, 2009 WL 2524570 , at *3. It was unclear,
however, whether Judge Dawson would have found the language in Black & Decker
sufficient to obligate Black & Decker to indemnify Walmart for an injury caused , in part,
by Walmart's negligence ,2 as he likened the language at issue to both Pickens-Bond
(sufficient to require indemnification for own negligence, but not where sole cause) and
Arkansas Kraft (insufficient to require indemnification for own negligence). Black &
Decker, 2009 WL 2524570 , at *3. Indeed , such a find ing was not necessary in Black &
Decker because the claims at issue "relate[d] only to the independent misconduct" of the

indemnitee, i.e. , Walmart's negligence alone. Id. at *5.
Here, the language certainly surpasses that in Arkansas Kraft, but, like in Black &
Decker, it does not go so far as to clearly and unambiguously require indemnification

2

Black & Decker uses the phrases "sole negligence" and "own negligence" almost
interchangeably. As evidenced by its analogizing to Pickens-Bond and the factual
distinctions it makes with RLI, it is clear that Judge Dawson held only that the language
there was insufficient to require indemnification for harm caused by Walmart's sole
negligence. See 2009 WL 2524570 , at *4 ("Unlike RLI, it is only the acts or omissions of
Walmart, rather than those of Black & Decker, that are currently at issue." (emphasis
added)).
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where the loss arises solely from Walmart's acts or omissions. Rather, the indemnity
agreement at issue in this case aligns with Pickens-Bond and RLI. The agreement here
required indemnification for "any and all lawsuits ... regardless of cause or alleged
cause," like the "from whatever cause" language in Pickens-Bond. Doc. 18, ,I 6; see

Pickens-Bond, 249 Ark. at 402. The language in the instant case also mirrors that in RL/,
both of which require indemnification for claims resulting "in whole or in part" from product
defects. Doc. 18, ,I 6; see RL/, 292 F.3d at 588.
Accordingly, the Court holds that the language in the Supplier Agreement at issue
in this case-like that in Pickens-Bond-requires indemnification for Walmart's own
negligence, unless Wal mart's negligence was the sole cause of the loss.

2. Whether Walmart is Entitled to Indemnification on the Undisputed Facts
The next question is whether the indemnification provision-as applied to the
undisputed facts-obligates Reddy Ice to indemnify Walmart for losses arising out of the
Fosters' lawsuit. Wal mart asserts that Reddy Ice has a duty to indemnify under subsection
(b) (latent or patent defect), subsection (d) (act, activity, or omission), and subsection (e)
(installation or display) of the agreement. Reddy Ice contests Walmart's ability to rely on
any of these provisions as grounds for indemnification. Before addressing whether these
contractual provisions support indemnification , the Court will first frame the relevant
inquiry by looking more closely at RLI and Black & Decker.
i.

RLI and Black & Decker

In RLI, the Eighth Circu it held Walmart (the indemnitee) and its insurer were
entitled to summary judgment because the indemnitor in that case, Cheyenne , had made
a "valid promise to indemnify Walmart for claims arising from the halogen lamps" that it

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supplied to Walmart. 292 F.3d at 587. There, the parties' agreement contained two
indemnification provisions that read as follows :
Cheyenne shall protect, defend , hold harmless and indemnify Wal-Mart
from and against any and all claims and actions arising out of any actual or
alleged death or injury to any person or other damage or loss, by
whomsoever suffered , resulting or claimed to result in whole or in part from
any actual or alleged defect in such merchandise . . ..
Indemnification ; Cheyenne agrees to save Wal-Mart harmless and
indemnified from all claims, liability, loss, damage and expense , including
reasonable attorneys' fees, sustained from the purchase, use or sale of any
goods or from the breach of any of the guaranties or warranties hereunder
and such obligations shall survive acceptance of the goods and payments
therefor by Wal-Mart.
Id. at 587-88 (cleaned up). The court held that Cheyenne had clearly "promised to
indemnify Wal-Mart for any liability or loss resulting from Wal-Mart's sale of its lamps,"
and Walmart's having to pay a settlement where a plaintiff was allegedly injured by a
defective exploding lamp fell within this agreement. While the court there stated "[a]ny
possible negligence by Wal-Mart does not protect Cheyenne from its contractual promise
to indemnify Wal-Mart," the opinion does not make clear whether Walmart was in fact
negligent and , if it was, to what degree.
In Black & Decker, Judge Dawson held as a matter of law that Black & Decker was
not required to indemnify Walmart because the injury resulted from Walmart's sole acts
or omissions. 2009 WL 2524570 , at *5. There, a couple brought the underlying suit
against Walmart and Black & Decker for injuries received from an allegedly defective
Black & Decker grinder purchased at Walmart. Id. at *2. Black & Decker settled with the
underlying plaintiffs, resolving the couple's claims against Black & Decker but not
Wal mart. Id. The underlying plaintiffs in Black & Decker then amended their complaint to
claim that Wal mart had violated the Texas Deceptive Trade Practice Consumer Protection
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Act when it sold them the grinder, alleging "Wal-Mart sold the grinder . . . as 'new"' when
it "was actually a 'returned ' item to Defendant Wa l-Mart and had been disassembled then
re-assembled post-manufacturing ." Id. The amended complaint further stated , "The
claims by Plaintiffs are intended to be limited to only those resulting from independent
actions and/or inactions by Defendant Wal-Mart." Id.
Judge Dawson held that Black & Decker was not obligated to indemnify Walmart
because the allegations in the operative complaint "relate[d] only to the independent
misconduct of Wal-Mart." Id. at *5. In so holding , Judge Dawson distinguished the case
from RLI, explaining that in RLI "Wal-Mart's loss would have necessarily been caused , at
least 'in part,' by the vendor's acts or omissions" due to the nature of the alleged design
defect. Id. at *4. "Unlike RLI," Judge Dawson stated , "it [was] only the acts or omissions
of Wal-Mart, rather than those of Black & Decker, that [were] at issue ." Id.
ii. Framing the Relevant Inquiry
Reddy Ice argues that Black & Decker is factually analogous, comparing the laststanding deceptive trade practices claim against Walmart in Black & Decker to the
remaining premises liability claim against Walmart in this case. Reddy Ice contends that
regardless of where the leak came from , it does not "change the common law duty owed
by Walmart alone." (Doc. 17, p. 9). That is, it was Walmart's failure to ameliorate the
danger posed by the leak that established premises liability-a failure beyond Reddy Ice's
control. Further, Reddy Ice asserts that Reddy Ice's "non-negligent (as adjud icated below)
actions or omissions cannot form the basis for Walmart's liability as a matter of law," id.
at p. 10, due to collateral estoppel , (Doc. 26 , p. 4).

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Conversely, Walmart factually distinguishes the instant case from Black & Decker,
explaining that, there, "the loss for which the indemnitee . .. sought indemnification could
only have been caused by the indemnitee." (Doc. 34, p. 12). That is, not only could Black
& Decker have not been liable for the deceptive trade practices act claim , but the injury
was in no way attributable to Black & Decker (i.e ., being sold a returned , reassembled ,
and repackaged grinder as "new" in violation of the deceptive trade practices act) because
Black & Decker played no part in the post-manufacture return and reselling of its grinder.
Whereas here , Walmart argues, the undisputed facts "establish clearly that a defect in
Reddy's freezer caused , or contributed to , the loss for which indemnification is sought."
(Doc. 34, p. 15). Lastly, Walmart argues the grant of summary judgment to Reddy Ice in
the underlying action is immaterial because "[n]egligence liability is not the sole condition
triggering Reddy's duty to indemnify Walmart. " Id. at p. 16.
To start, the Court agrees with Walmart that Black & Decker is factually distinct
because , there , Walmart's actions occurred post-manufacture and caused a deceptive
trade practices injury which could only be attributed to Walmart, whereas here Walmart's
alleged negligence was its failure to mitigate a risk/danger that Reddy Ice's Merchandise
created .
Moreover, Reddy Ice's focus on Walmart's independent duty and the theory of
liability in the underlying suits is misplaced. The action here is not confined to one of
contribution among joint tortfeasors. Rather, the issue here-based on the caselaw and
the contractual language-is whether Walmart's loss is attributable to Reddy Ice under
the terms of the agreement, not simply the tort theory. Id. As Walmart states, "An
indemnitee's right of recovery is not conditioned on the underlying plaintiff making , or

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even having , a colorable claim against both the indemnitor and indemnitee." (Doc. 34, p.
16). "[A]n indemnitor's fault in contributing to a loss can exist without liability for the loss;
being the alleged cause of, or at fault for, a loss is not the same as being liable for the
loss." Id.
Likewise , the fact the Fosters' negligence claim against Reddy Ice was dismissed
on summary judgment is not dispositive. Neither the underlying motion nor the state
court's order on summary judgment address whether the injury- and thus, Walmart's
loss-was attributable to Reddy Ice under the indemnification agreement. See Doc. 224, pp . 4, 6-7. Instead , Reddy Ice's motion in the underlying action argued that it had no
duty to the Fosters and that it did not commit negligent conduct, much like its misplaced

argument here. Additionally, collateral estoppel does not bar this suit. The underlying suit
adjudicated Reddy Ice's negligence to the Fosters , while this case adjudicates whether
Walmart's loss is attributable to Reddy Ice under the terms of their contractual agreement.
Thus, the relevant inquiry here is whether Wal mart's losses arise out of any actual
or alleged : injury resulting in whole or in part from a patent or latent defect in Reddy Ice's
Merchandise (subsection (b)) ; act, activity, or omission by Reddy Ice (subsection (d)) ; or
installation or display of Reddy Ice's Merchandise (subsection (e)).

iii. Applying the Contractual Basis for Indemnification
First, the Court finds that "Merchandise" includes the subject freezer along with the
bags of ice. See Doc. 42 , p. 2. The Supplier Agreement defines "Merchandise" to include
"all products, goods, materials, equipment, articles, and tangible items supplied by [Reddy
Ice] to [Walmart]. " Id. Certainly, a freezer owned , transported , installed , and maintained
inside the Walmart store by Reddy Ice for the purpose of storing and displaying Reddy

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Ice's goods (i.e., ice) constitutes equipment or, at the very least, a tangible item supplied
by Reddy Ice to Walmart.
Second , the Court finds that subsection (e) is dispositive here because, based on
the undisputed facts , Walmart's loss (i.e. , paying the settlement amount to the Fosters)
arose out of Reddy Ice's display of its Merchandise (i.e. , the ice and freezer) . It is
undisputed that the water in which Ms. Foster slipped originated from Reddy Ice's freezer
after the heater malfunctioned , causing the condensation to accumulate and overflow.
And though Reddy Ice argues "the freezer is not a display that caused Mrs. Foster to fall ,"
(Doc. 38 , p. 9), the plain language compels a different conclusion . See Display, MerriamWebster, https://www.merriam-webster.com/dictionary/display [https://perma.cc/5WVAQL22] (last visited March 3, 2025) (defining "display" as "a setting or presentation of
something

in

open

view");

see

also

Display,

Cambridge

Dictionary,

https://dictionary.cambridge .org/dictionary/english/display [https://perma .cc/KCZ8NUQX] (last visited March 3, 2025) (defining "display" as "a collection of products or
objects arranged for people to look at or buy in a store" and providing examples such as
a display window, shelf, or counter).
The Court does not see how a branded case placed in the store by a Reddy Ice
representative for the purpose of advertising , storing , and exhibiting the bagged ice would
not constitute a display. Thus, subsection (e) triggers indemnification in this circumstance
as a matter of law.3

3 Because subsection (e) is dispositive, the Court will not address Walmart's alternative

arguments under subsections (b) and (d).

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Reddy Ice argues this is an "expansive and flawed interpretation of th is provision"
that leads to absurd results by "shift[ing] the liability belonging only ever to Walmart as a
premises owner to those that do business with Walmart. "4 (Doc. 26 , p. 6 n.4 ). The Court
disagrees-Reddy Ice signed an agreement to indemnify Walmart "from and against any
and all . . . losses . . . regardless of the cause or alleged cause thereof ... arising out of
any actual .. . display by [Reddy Ice] of Merchandise." (Doc. 42 , p. 4) . Because it is
undisputed that the freezer's malfunctioning heater caused a leak that resulted in Ms.
Foster's fall , there is no genuine issue of material fact whether Walmart's loss arose out
of the display of Reddy Ice's Merchandise. Accordingly, Reddy Ice is required to indemnify
Wal mart for its loss under subsection (e) of the agreement as a matter of law, and
Walmart's Motion for Summary Judgment (Doc. 31) is GRANTED. It necessarily follows
that Reddy Ice has not shown as a matter of law that it has no duty to indemnify, so Reddy
Ice's Motion for Summary Judgment (Doc. 16) is DENIED .

B. Contribution and Equitable Indemnity
Alternatively, Walmart brings claims for contribution and equitable indemnity. As
Walmart correctly notes in its Reply brief, summary judgment in Walmart's favor on the
contractual indemnity claim makes Walmart's other causes of action moot. (Doc. 43, pp .

4

Reddy Ice argues such absurd results may include requiring indemnification where
"Tostitos had a large cardboard display at a Walmart store, and the display fell over and
was left on the ground so long by Walmart employees that an unsuspecting customer
rounded the corner of an aisle and tripped over it." (Doc. 38 , p. 9). Without deciding
whether such a hypothetical would compel indemnification under the instant agreementWalmart argues it does-the Court finds the hypothetical flawed. A more analogous
hypothetical would be one in which the Tostitos display broke causing part of it to lay the
in the aisle and trip a customer. Under this modified hypothetical and the instant Supplier
Agreement, Tostitos would be required to indemnify Walmart.
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2-3). Because the Court has granted Walmart's Motion for Summary Judgment, it will not
address its alternative causes of action.
IV. CONCLUSION

For the reasons stated above, IT 15 HEREBY ORDERED that Walmart's Motion
for Summary Judgment (Doc. 31) is GRANTED, and Reddy Ice's Motion for Summary
Judgment (Doc. 16) is DENIED. Accordingly, Reddy Ice must indemnify Walmart for its
loss in the underlying suit. Walmart should file its motion for attorneys' fees , if sought,
within fourteen days from the entry of this Order; Reddy Ice will then have fourteen days
to respond.
The Court's findings and rulings must be reduced to a judgment, which the Court
will file contemporaneously with this Memorandum Opinion and Order. While the
settlement amount and the amount Walmart paid in attorneys' fees and costs in the
underlying suit is confidential, the amounts are undisputed. 5 See Doc. 35, pp. 7-8; Doc.
39, pp. 9-10. The Court will file a sealed judgment that includes the specific amounts
owed to Walmart by Reddy Ice in this action as well as an unsealed judgment to the public
docket that redacts the specific amount~
IT 15 50 ORDERED on this

6!._ day of March, 2025.

RICT JUDGE
5 Though Reddy Ice "disputes that it is legally responsible" for the legal fees and costs, it

does not dispute that "Walmart paid [these] sums . . . purportedly as legal fees and costs."
The indemnification agreement covers, inter alia, "losses, damages, costs and expenses
(including attorneys' fees and court costs)." (Doc. 42, p. 4 (emphasis added)). In light
of the Court's findings in this Order, Reddy Ice's argument that it is not legally responsible
for these amounts is a nonstarter.
17