CGBM 100 LLC et al v. FLOWSERVE US INC. et al
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).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CGBM 100, LLC
and ACCUTRANS, INC.
FLOWSERVE US, INC.,
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.
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.
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
day of December, 2016.
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