CGBM 100 LLC et al v. FLOWSERVE US INC. et al

Filing 89

OPINION AND ORDER granting 59 Motion for Summary Judgment of the Flowserve Defendants seeking the dismissal of the cross-claim for indemnity and contribution asserted against Flowserve by Sterling Shipyard - Sterlings indemnity claim is DISMISSED; Sterlings contribution claim is also DISMISSED.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3) (Main Document 89 replaced on 12/29/2016) (sanderson, 3).

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION CGBM 100, LLC and ACCUTRANS, INC. V. FLOWSERVE US, INC., FLOWSERVE CORPORATION and STERLING SHIPYARD, LP. § § § § § § § § CIVIL ACTION NO. G-15-026 OPINION AND ORDER Before the Court is the Motion for Summary Judgment of the Flowserve Defendants seeking the dismissal of the cross-claim for indemnity and contribution asserted against Flowserve by Sterling Shipyard. The Motion (Instrument no. 59) is GRANTED. Indemnity The contract between Flowserve and Sterling contains no indemnity clause and current Texas law limits common law indemnity to two circumstances: (1) to an innocent retailer in a products liability action and (2) to an innocent defendant whose liability is purely vicarious in a negligence case, Affordable Power L.P. v. Buckeye Ventures, Inc., 347 S.W. 3d 825, 833 (Tex. App. -- Dallas 2001, no pet.), neither of which apply here. Sterling’s indemnity claim is, therefore, DISMISSED. Contribution The only remaining claim Plaintiff CGBM 100 has against Sterling is for breach of express warranty. That claim is contractual in nature because an express warranty comprises part of the basis of the bargain between the contracting parties. Jones v. Pesak Brothers Construction, Inc., 461 S.W. 3d 618, 628 (Tex. App. - Houston [1st Dist] 2013, no pet.). Texas law does not permit contribution for claims based on contract, only torts. CBI NA-CON, Inc. v. UOP, Inc., 961 S.W. 2d 336, 341 (Tex. App. -- Houston [1st Dist] 1977, pet. denied); TEX. CIV. PRAC. & REM. CODE § 33.002. Sterling’s contribution claim is, therefore, also DISMISSED. DONE at Galveston, Texas, this 29th 2 day of December, 2016.

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