Stokes v. Lake Raider, Inc.

Filing 190

OPINION AND ORDER by Magistrate Judge Kimberly E. West: GRANTING (Docket No 75 ) Third-Party Defendant's Motion for Summary Judgment (terminating party 150 Boat Sales, LLC) (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MIKE STOKES,
Plaintiff,
v.
LAKE RAIDER, INC. d/b/a
VOYAGER MARINE,
Defendant/
Third-Party
Plaintiff,
v.
150 BOAT SALES, L.L.C.,
Third-Party
Defendant.

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Case No. CIV-13-507-KEW

OPINION AND ORDER
This matter comes before the Court on Third-Party Defendant
150 Boat Sales, L.L.C.’s Motion for Summary Judgment (Docket Entry
#75).

Plaintiff Mike Stokes (“Stokes”) initiated this action on

November 12, 2013 against Defendant Lake Raider, Inc., d/b/a
Voyager

Marine

(“Voyager”)

only.

Stokes’

claims

included

negligence, manufacturer’s products liability, failure to provide
adequate notice, and breach of warranty in connection with a pinch
point on a boat manufactured by Voyager.

Stokes alleges that he

lost a finger as a result of this pinch point on July 6, 2013.
However, all claims except for the strict products liability claim
were dismissed at Stokes’ urging by Opinion and Order entered
November 17, 2014.
On April 29, 2014, Voyager filed a Third Party Complaint

against 150 Boat Sales, L.L.C. (“150 Boat Sales”), an authorized
dealer of Voyager boat products and original seller of the boat at
issue in this case. Voyager alleges 150 Boat Sales had information
about a retrofit to rectify the pinch point on the boat but failed
to advise Stokes of the availability of the retrofit. As a result,
Voyager

contends

it

is

entitled

to

indemnification

and/or

contribution from 150 Boat Sales should Voyager be held liable for
damages in the primary action brought by Stokes.
150 Boat Sales did not manufacture, design, or modify the
Voyager ‘20 Sport Deluxe pontoon boat, serial number VDY2005OK102
which is at issue in this case.

Further, no contract exists which

provides Voyager with the right to indemnification from 150 Boat
Sales on the claims asserted by Stokes against Voyager in this
action.
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate, “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that, there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”

The moving party bears the initial

burden of showing that there is an absence of any issues of
material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

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A genuine issue of

material fact exists when "there is sufficient evidence favoring
the non-moving party for a jury to return a verdict for that
party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). In determining whether
a genuine issue of a material fact exists, the evidence is to be
taken in the light most favorable to the non-moving party. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970).

Once the moving party has met its burden, the

opposing party must come forward with specific evidence, not mere
allegations or denials of the pleadings, which demonstrates that
there is a genuine issue for trial.

Posey v. Skyline Corp., 702

F.2d 102, 105 (7th Cir. 1983). For purposes of the pending Motion,
this Court finds no genuine issue as to any fact which is material
to the dispute addressed in the Motion.

As a result, the question

remaining for consideration by this Court centers upon whether 150
Boat Sales is entitled to prevail on the Motion as a matter of law.
A claim for indemnity may arise from a contract or noncontractual indemnity also recognized as the implied right of
indemnification.
Inc.,

784

P.2d

Nat’l Union Fire Ins. Co. v. A.A.R. W. Skyways,
52,

54

(Okla.

1989).

This

latter

form

of

indemnification is similar to common law contribution and arises
only when “one who is only constructively or vicariously obligated
to pay damages because of another's tortious conduct may recover

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the sum paid from the tortfeasor.”

Id. quoting Travelers Ins. Co.

v. L.V. French Truck Serv., Inc., 770 P.2d 551, n.16 (Okla. 1988).
No evidence has been presented to indicate a contract existed
between Voyager and 150 Boat Sales which provides a right to
indemnification.

Moreover, the action Stokes asserts against

Voyager is based upon direct strict products liability and not upon
any allegation of vicarious or constructive liability.

As a

result, common law or implied indemnity is not available to Voyager
under the facts of this case.
Oklahoma has codified the right to contribution at Okla. Stat.
tit. 12 § 832(B), which provides:
The right of contribution exists only in favor of a tortfeasor who has paid more than their pro rata share of the
common liability, and the total recovery is limited to
the amount paid by the tort-feasor in excess of their pro
rata share.
150 Boat Sales contends that the relatively recent change to
the availability of joint and several liability by the Oklahoma
legislature

precludes

Voyager’s

claim

for

contribution.

Specifically, on November 1, 2011, the statute establishing joint
and several liability was amended to state:
§ 15. Joint tortfeasor liability--Several only
A. In any civil action based on fault and not arising
out of contract, the liability for damages caused by two
or more persons shall be several only and a joint
tortfeasor shall be liable only for the amount of damages
allocated to that tortfeasor.
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B. This section shall not apply to actions brought by or
on behalf of the state.
C. The provisions of this section shall apply to all
civil actions based on fault and not arising out of
contract that accrue on or after November 1, 2011.
Okla. Stat. tit. 23 § 15.
150 Boat Sales reasons that Voyager will never be liable for
more than the amount of damages for which it is adjudicated to be
personally liable and, therefore, will not be forced to pay more
than its pro rata share of the common liability.

For its part,

Voyager contends strict products liability is not based upon fault
so joint and several liability remains available under this claim.
Neither party has cited case authority standing for the
proposition that joint and several liability exists under Oklahoma
law for strict products liability. Based upon this fact alone, 150
Boat

Sales

would

not

be

liable

for

contribution.

But

more

importantly, Voyager expends considerable print in its briefing to
establish that 150 Boat Sales is liable for Stokes’ injuries based
upon its failure to install the retrofit for the pinch point or to
warn Stokes of the defect in the boat which could cause injury.
Unfortunately for Voyager, a negligence claim has neither been
asserted by Stokes against 150 Boat Sales in the primary action nor
by Voyager against 150 Boat Sales in the third party complaint.
Voyager’s allegations equate with a claim for a post-sale duty to

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warn or retrofit a product under a strict products liability theory
in order to convey joint and several liability upon 150 Boat Sales.
This cause of action is not recognized in Oklahoma. Wicker ex rel.
Estate of Wicker v. Ford Motor Co., 393 F.Supp.2d 1229, 1236 (W.D.
Okla. 2005)(“Oklahoma does not recognize a post-sale duty to warn
or retrofit a product.”); Kirkland v. Gen. Motors Corp., 521 P.2d
1353, 1366 (Okla. 1974).

As a result, 150 Boat Sales cannot be

held liable for the common liability necessary for a contribution
claim by Voyager.

Thus, this claim fails as well.

Consequently,

150 Boat Sales is entitled to summary judgment on all claims
asserted in the Third Party Complaint.
IT IS THEREFORE ORDERED that Third-Party Defendant 150 Boat
Sales, L.L.C.’s Motion for Summary Judgment (Docket Entry #75) is
hereby GRANTED.

As a result, the claims for contribution and

indemnity are hereby DISMISSED as a matter of law.
IT IS SO ORDERED this 29th day of December, 2014.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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