French v. Time Warner Entertainment Co. L.P. et al
Filing
94
///ORDER granting 63 Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment as to Defendants Time Warner and Time Warner LLC's Cross-Claims (Replaces #62). So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Denise French
v.
Civil No. 10-cv-498-JL
Time Warner Entertainment
Co. L.P. et al.
SUMMARY ORDER
This wrongful death action arises out of the accidental
electrocution of a worker, James French.
While French was
installing cable on a utility pole in Shelburne, New Hampshire,
an insulator holding the power line to the pole broke.
French’s
wife, acting as the administratrix of his estate as well as on
behalf of their minor children and herself, has sued the owner of
the pole, Public Service Company of New Hampshire; the
manufacturer (or the successor-in-interest to the manufacturer)
of the insulator, Lapp Insulators LLC; and Time Warner
Entertainment Co. L.P. and Time Warner Cable LLC (collectively,
“Time Warner”), who had hired French’s employer, NextGen Telecom
Services Group, Inc., to install the cable.1
This court has
jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity) because, at
the time of his death, French was a citizen of Maine, see id.
1
None of the parties makes any attempt to distinguish
between the Time Warner entities, so the court will follow suit.
The court will use “French” to refer to James French, the
decedent, and “the plaintiff” to refer to Denise French in her
capacity here.
§ 1332(c)(2), where his wife and children also live, and none of
the defendants is a citizen of that state.
The plaintiff has brought a single count, styled “strict
liability, negligent failure to warn,” against Lapp, alleging
that it failed to advise PSNH of the “long but uncertain life
expectancy” of the kind of insulator at issue, a porcelain model
manufactured in 1968 but still in service at the time of French’s
accident in 2007.
The plaintiff has brought a number of
different negligence counts against Time Warner and PSNH.
Two of
them arise, at least in part, out of Time Warner’s instructing
NextGen to start hanging cable on the pole in question, even
though Time Warner had yet to complete certain “make ready” work
required by its agreement with PSNH as a precondition to its
installation of cable on PSNH’s poles.
The plaintiff’s other
negligence claims assert that Time Warner and PSNH breached their
duty to take reasonable steps, including an inspection of the
pole, to ensure French’s safety while he installed the cable--a
duty that arose from either the Time Warner-PSNH agreement or the
inherently dangerous nature of the work.
Some of the defendants responded, in part, by cross-claiming
against each other:
Time Warner claimed that it was entitled to
contribution and indemnification from both PSNH and Lapp, while
PSNH claimed that it was entitled to indemnification from Time
2
Warner under the parties’ agreement.
In due course, however, the
plaintiff settled and released her claims against both PSNH and
Lapp which, under New Hampshire law, discharged them from
liability for contribution to Time Warner (provided the plaintiff
gave the release in good faith).
N.H. Rev. Stat. Ann. § 507:7-h.
Time Warner subsequently stipulated to the dismissal, with
prejudice, of its contribution claims against Lapp.
Time Warner
and PSNH later stipulated to the dismissal, also with prejudice,
of all of their cross-claims against each other.
The one remaining cross-claim, then, is Time Warner’s
indemnification claim against Lapp.
Lapp has moved for summary
judgment on that claim, see Fed. R. Civ. P. 56, arguing that Time
Warner has no right to indemnification from Lapp against the
plaintiff’s claims as a matter of law.
The court agrees.
Under New Hampshire law, “one joint tortfeasor can obtain
indemnification, a complete shifting of liability, against
another where the indemnitee’s liability is derivative or imputed
by law, or where an express or implied duty to indemnify exists.”
Consol. Util. Equip. Servs., Inc. v. Emhart Mfg. Co., 123 N.H.
258, 261 (1983) (citations omitted).
While, as noted above, Time
Warner claimed to be entitled to indemnification from PSNH under
an express provision in their contract, Time Warner acknowledges
that it had no such agreement with Lapp.
3
Instead, Time Warner
argues for indemnification from Lapp against the plaintiff’s
claims on the theory that her “essential” allegations are that
“Time Warner’s only negligence [was] failure to discover Lapp’s
negligence and/or defective product.”
As Lapp points out, the New Hampshire Supreme Court squarely
rejected this theory of indemnification in Consolidated Utility
Equipment, which is controlling here.
In that remarkably similar
case, the decedent was killed in the course of his employment
while he was using a “hydraulic bucket-lift device” that
collapsed.
Id. at 260.
The administratrix of his estate brought
wrongful death actions against both the manufacturer of the
device and a company that the decedent’s employer had hired to
inspect the device prior to the accident, alleging that the
inspection had negligently failed to discover the crack in the
device that caused its collapse.
Id.
The inspector then sought
indemnification against the manufacturer, “claiming that [it]
should bear all liability for [the] death, due to the fact that
[its] role in creating the alleged defect in the equipment was
‘active,’ while [the inspector’s] alleged negligence, in failing
to discover the defect, was only ‘passive.’”
Id.
In affirming the dismissal of this claim, the Supreme Court
noted that, while “a number of jurisdictions have allowed
indemnification in the past” under this theory, “in light of
4
[more] contemporary negligence statutes, such indemnification has
been disallowed.”
Id. at 261 (citing cases).
The court further
explained that, although “[l]anguage in Morrissette v. Sears,
Roebuck & Co., 114 N.H. 384, 387 (1974), appeared to signal this
court’s adoption of the active-passive negligence doctrine,” the
law had since “been clarified by William H. Field Co. v. Nuroco
Woodwork, Inc., 115 N.H. 632, 634 (1975), and later cases.”
(citations corrected).
Id.
The court announced that, since then,
“[it] ha[s] not deviated, and [would] not now deviate, from the
position that indemnity is permitted only when one becomes liable
to a third party because of the imputed negligence of another, or
when an express or implied duty to indemnify exists.”
Id.
(citation omitted).
Time Warner does not explain how it can obtain indemnity
here on the very theory rejected by Consolidated Utility, i.e.,
that the would-be indemnitee’s liability is based on its failure
to discover a defect in a product manufactured by the would-be
indemnitor.
Tellingly, in fact, Time Warner’s objection to
Lapp’s summary judgment motion does not even mention, let alone
try to distinguish, Consolidated Utility--even though Lapp,
appropriately enough, relies heavily on that decision in support
of its motion.
5
Instead, Time Warner relies on a subsequent New Hampshire
Supreme Court case (though it mistakenly cites it as a different
case), Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341,
346 (1987), for the proposition that “a distributor sued by one
injured by a defective product could obtain indemnification
against the designer and/or manufacturer of the product so long
as the distributor could prove ‘that its only negligence lay in
its failure to discover that the product was defective’”
(bracketing and ellipse omitted).2
There, the manufacturer of a
drilling rig sought indemnification, from the manufacturer of the
rig’s engine, against a claim by the rig’s end user, alleging
that “any damages sustained by [the user] are directly
attributable to [the] defective component part.”
Id. at 343.
The New Hampshire Supreme Court reversed the dismissal of this
claim and remanded it for trial.
Id. at 347.
In reaching this result, the court acknowledged that, in
Consolidated Utility, it had “declined to extend a right of
2
Time Warner attributes this quotation to Hamilton v.
Volkswagen of America, Inc., 125 N.H. 561 (1984), where it does
not appear. In Hamilton, it was the user, not the distributor,
of an allegedly defective product (the driver of an allegedly
defective automobile) who sought indemnification from its
manufacturer--and the court ruled that he had no right to it,
because the underlying claim did not assert “any liability
against the [driver] based upon the fault of” the manufacturer
but rather, upon the user’s negligent driving. Id. at 563. So
the holding of Hamilton does not support Time Warner’s
indemnification claim.
6
indemnity to passively negligent tortfeasors generally.”
346.
Id. at
The court further recognized that other prior cases, “where
an indemnitor performs a service under a contract negligently
and, as a result, causes harm to a third party in breach of a
nondelegable duty of the indemnitee,” were “distinguished” in the
case before it, “because [the engine manufacturer] provided [the
rig manufacturer] with a product rather than a service.”
Id.
(discussing Hamilton, 125 N.H. at 563-64).
Nevertheless, the court concluded that this “distinction is
not controlling.
If the [rig maker] were to prove that its only
negligence lay in its failure to discover that the [component]
engine was defective, then the rationale for applying an
indemnity agreement could be applicable in this case.”
346 (emphasis added).
Id. at
The court identified that rationale as
“‘the fault of the indemnitor as the source of the indemnitee’s
liability in the underlying action and, conversely, the
indemnitee’s freedom from fault in bringing about the dangerous
condition.’”
Id. (quoting Hamilton, 125 N.H. at 564).
But the
court did not identify the additional circumstances under which
that rationale would be applicable.
Nor did Jaswell Drill
identify the controlling distinction between that case and
Consolidated Utility, which, again, refused to require
indemnification from a manufacturer against a claim arising out
7
of a defective product based solely on “the fact that [the
manufacturer’s] role in creating the alleged defect in the
equipment was ‘active,’ while [the would-be indemnitee’s] alleged
negligence, in failing to discover the defect, was only
‘passive.’”
123 N.H. at 260.
Importantly, though, Jaswell Drill
did not purport to overrule Consolidated Utility, but actually
recognized and reaffirmed its holding that New Hampshire law does
not “extend a right of indemnity to passively negligent
tortfeasors generally.”
129 N.H. at 346.
Time Warner’s indemnification claim against Lapp succumbs to
this general rule.
At most, Jaswell Drill seems to recognize a
right of indemnity running from the manufacturer of a defective
component part to a downstream manufacturer who incorporates that
part in its product, should the downstream manufacturer’s
liability arise solely from its failure to recognize the defect.
But Time Warner’s relationship with Lapp was nothing like the
relationship between the manufacturer of the drill rig and the
manufacturer of its engine in Jaswell Drill--indeed, Lapp
provided Time Warner with neither a product nor a service.
At present, the court need not attempt to identify the
precise circumstances under which Jaswell Drill recognizes a
joint tortfeasor’s right of indemnification against the
manufacturer of an allegedly defective product.
8
It is enough to
say that Jaswell Drill does not recognize Time Warner’s claimed
right of indemnification in this case.
If it does, then, Jaswell
Drill necessarily overrules Consolidated Utility, which, again,
it does not purport to do.
And if, as Time Warner argues, a
manufacturer’s sale of a defective product is tantamount to
creating a dangerous condition, requiring the manufacturer to
indemnify parties who neither bought or used the product against
claims that they breached a duty to remedy or warn of that
condition, then the result of Consolidated Utility would have
been different.
The court takes Time Warner’s failure to even
mention Consolidated Utility as a tacit acknowledgment of that
reality, and GRANTS Lapp’s motion for summary judgment (document
no. 63).
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:
October 5, 2012
Francis G. Murphy, Jr., Esq.
Harold J. Friedman, Esq.
Martha C. Gaythwaite, Esq.
Phillip S. Bixby, Esq.
Stephen Lawrence Boyd, Esq.
Todd J. Hathaway, Esq.
Clara E. Lyons, Esq.
Douglas N. Steere, Esq.
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