Product Defect Case Series

Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 526, 665 P.2d 256, 258 (1983).

Product:

Injury:

Mechanism of Injury:

Nature of Defect:

Jury Verdict:

Issue on appeal:

Product Defect Law Categories:

Indemnification of the retailer by the manufacturer

Result:

Case Quotes:

We are inclined to follow the reasoning in Pender. As the Comment to Section 886B of the Restatement (Second) of Torts notes, the basis for indemnity is restitution; one person is unjustly enriched when another discharges liability that it should be his responsibility to pay. The premise is that indemnity should be granted in any situation where, as between the parties themselves, it is just and fair that the indemnitor should bear the entire loss, rather than leaving it on the indemnitee or dividing it proportionately between the parties by contribution. An indemnitee is not “held harmless” pursuant to an express or implied indemnity agreement if it must incur costs and attorney's fees to vindicate its rights. Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d at 1066–67. Furthermore, the more restrictive Westfield rule provides absolutely no protection to retailers and distributors, who may be compelled to expend large sums to defend a products liability action merely because a defective product, the defect of which may be attributable solely to the manufacturer's conduct, passed through their hands.

Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983).

However, the right to fees and costs remains limited. The manufacturer has no duty to defend a distributor or retailer charged with negligence, breach of warranty, or strict liability where the latter party is attempting to prove that it was not actively negligent. See Koch v. City of Seattle, 9 Wash.App. 580, 513 P.2d 573, 576–77 (Wash.App.1973). Cf. Restatement (Second) of Judgments § 57(2) & (3) (1982) (“conflict of interest” preventing indemnitor from properly assuming defense of indemnitee exists when injured person's claim against indemnitee is such that it could be sustained on different grounds, one of which is within scope of indemnitor's obligation to indemnify and another of which is not). Therefore, the indemnitee's right to attorney's fees and costs depends on the evidence presented as well as the facts found at trial; the indemnitee may recover only those fees and expenses attributable to the making of defenses which are not primarily directed toward rebutting charges of active negligence.1

Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 529, 665 P.2d 256, 260 (1983).