¶ 1 This dеclaratory relief action (DRA), which arises from an underlying product liability action (the Naranjo case), involves the seller’s claim for indemnity against the manufacturer. The manufacturer, appellant Bridgestone/Firestone North America Tire, L.L.C., appeals from the trial court’s grant of summary judgment in favor of the seller, appellee A.P.S. Rent-A-Car & Leasing, Inc. 1 Based on both statutory and common law grounds, the trial court ordered Bridge-stone to indemnify A.P.S. for thirty percent of the judgment entered against A.P.S. in the Naranjo case. Bridgestone challenges that ruling on various legal grounds and argues numerous issues of material fact preclude summary judgment.
¶ 2 This appeal requires us to analyze and apply A.R.S. § 12-684(A). The primary issue is whether that statute is a stand-alone, independent basis for indemnity, as A.P.S. contends and the trial court ruled, or whether the statute must be construed consistently with various common law principles, as Bridgestone argues. Because we find no genuine issues of material fact and agree with A.P.S.’s legal position, we conclude Bridgestone was obligated to indemnify
BACKGROUND
¶ 3 We view the facts and reasonable inferences therefrom in the light most favorable to the party against whom summary judgment was entered, here Bridgestone.
Link v. Pima County,
¶ 4 In March 2001, the Naranjos sued only A.P.S., alleging negligence and strict liability in tort. In May, A.P.S. tendered its defense to Bridgestone, the tire’s alleged manufacturer, by sending a letter and a copy of the complaint to Bridgestone headquarters in Tennessee. Bridgestone received the tender of defense but did .not formally respond. A.P.S. therefore defended itself in the Nar-anjo case, named Bridgestone as a non-party at fault, 2 and unsuccessfully attempted to bring Bridgestone into the case as a third-party defendant. Bridgestone, however, took certain steps to monitor the Naranjo case.
¶ 5 During trial in that case, A.P.S. essentially admitted the tire in question was defective and never disputed that the tire was unreasonably dangerous when A.P.S. rented the van to the Naranjos. In fact, A.P.S. presented expert testimony and argued that the tire was defective due to a design or manufacturing defect. Based on A.P.S.’s evidence and concessions, the trial court directed a verdict in favor of the Naranjos on their strict liability claim and instructed the jury that A.P.S. “was at fault for product liability for leasing a vehicle to the [Naranjos] with defective and unreasonably dangerous tires.”
¶ 6 After a seven-day trial, the jury awarded $9,539,838 in compensatory damages to the Naranjos. In response to a special interrogatory, the jury stated that seventy percent of its verdict was based on the Naranjos’ negligence claim and thirty percent on their product liability claim. 3 A.P.S. paid the entire amount of the ensuing judgment, and the Naranjos filed a satisfaction of judgment with the trial court.
¶ 7 While the Naranjo case was pending, Bridgestone Sled this DRA, seeking a ruling that it would neither be bound by any judgment in the Naranjo case nor obligated to indemnify A.P.S. for any damages awarded to the Naranjos. Bridgestone alleged that its Mexican subsidiary, Bridgestone/Fire-stone de Mexico (BFMX), had actually manufactured the failed tire and, therefore, A.P.S.’s tender of defense to Bridgestone was not proper. Bridgestone further claimed that A.P.S.’s own negligence and a conflict of interest between itself and A.P.S. would defeat any claim for indemnity. A.P.S. responded with a counterclaim for indemnity and contribution against Bridgestone. 4
¶8 Following the verdict in the Naranjo case, A.P.S. moved for summary judgment in this DRA, arguing that Bridgestone had been properly “vouched in” to the Naranjo litigation and that, pursuant to § 12-684, Bridgestone was required to indemnify A.P.S. for the product liability portion (thirty percent) of the verdict. In its response and
¶ 9 After further briefing and argument, and after taking judicial notice of the entire record in the Naranjo case (over which it also had presided), the trial court granted summary judgment in favor of A.P.S. and denied Bridgestone’s cross-motion. The court ruled that Bridgestone was the manufacturer of the tire and had received and refused a proper tender of defense from A.P.S. Concluding that Bridgestone had not established either of the two statutory exceptions in § 12-684(A) and that its various common law defenses were inapplicable, the court ordered Bridgestone to indemnify A.P.S. for $2,861,951.40, thirty percent of the damages awarded to the Naranjos. The trial court also grounded its ruling on “common law vouching in and indemnificаtion” and on A.P.S.’s contribution claim “for 30 percent of the Naranjo Judgment.”
¶ 10 Bridgestone filed a motion for reconsideration, reurging the arguments made in its cross-motion for partial summary judgment. Bridgestone also argued the trial court had improperly taken judicial notice of substantive evidence presented in the Naran-jo case and had decided issues beyond the scope of the parties’ motions, specifically in ruling that the failed tire had a design or manufacturing defect. Attached to Bridge-stone’s motion for reconsideration was an affidavit from a tire expert, who stated that the failed tire had no such defect, but rather, had failed due to punctures and improper repairs that were not attributable to the design or manufacturing process. After ordering a response from A.P.S., the trial court denied Bridgestone’s motion without comment. This appeal followed the court’s entry of judgment in favor of A.P.S. pursuant to Rules 54(b) and 56, Ariz. R. Civ. P., 16 A.R.S., Pt. 2.
DISCUSSION
I.
¶ 11 The trial court’s summary judgment ruling was primarily based on § 12-684. Enacted in 1978, that statute provides in pertinent part:
A. In any product liability action where the manufacturer refuses to accept a tender of defense from the seller, the manufacturer shall indemnify the seller for any judgment rendered against the seller and shall also reimburse the seller for reasonable attorneys’ fees and costs incurred by the seller in defending such action, unless either paragraph 1 or 2 applies:
1. The seller had knowledge of the defect in the product.
2. The seller altered, modified or installed the product, and such alteration, modification or installation was a substantial cause of the incident giving rise to the action, was not authorized or requested by the manufacturer and was not performed in compliance with the directions or specifications of the manufacturer.
¶ 12 “Section [12 — ]684 is intended, in most circumstances, to place the burden and costs of defending products on their manufacturers.”
Desert Golf Cars v. Yamaha Motor Co.,
¶ 13 The trial court concluded that § 12-684 “is a legislatively mandated procedure for vouching in/indemnification which differs from the common law vouching in and provides fewer defenses in order to carry out the legislature’s intent to place the burden and costs of defending products on the manufacturer rather than Arizona retailers.” As noted above, the court ruled that A.P.S. had properly served a valid tender of defense on the manufacturer, Bridgestone, which had refused to accept the tender. The trial court also ruled as a matter of law that the exception in § 12-684(A)(1) required the seller’s actual, not merely constructive, knowledge of the product’s defect. The court found “no material issues of fact or law that AP.S. misused or altered the tire or had knowledge of the design or manufacturing defect in the product.” Accordingly, the trial court concluded that Bridgеstone was obligated to fully indemnify A.P.S. for the thirty percent portion of the verdict in the Naranjo case that the jury had allocated to the Naranjos’ product liability claim.
II.
¶ 14 We review de novo the trial court’s grant of summary judgment and questions of statutory interpretation.
Bridgestone/Fire-stone North America Tire, L.L.C. v. Naran-jo,
¶ 15 In interpreting statutes, “[o]ur primary goal is to discern and give effect to legislative intent.”
State v. Kearney,
¶ 16 Nonetheless, “ ‘[t]o discern the legislature’s intent, we may consider the effect and consequences of alternative сonstruction.” ’
Way v. State,
III.
¶ 17 Bridgestone contends on several grounds that AP.S.’s tender of defense was improper, thereby defeating any claim for indemnity. As it did below, Bridgestone first argues that because its subsidiary BFMX actually manufactured the tire, A.P.S. directed its tender of defense to the wrong entity. Relying on
Torres v. Goodyear Tire & Rubber Co.,
¶ 18 In Torres, Goodyear, a tire manufacturer, essentially disclaimed responsibility for a defective tire produced by its wholly owned British subsidiary and trademark licensee, Goodyear GB. Noting that Arizona’s product liability statutes included a broad definition of “manufacturer,” see A.R.S. § 12-681(1), our supreme court determined that
under Arizona law a trademark licensor may be held liable where a licensee marketed the defective, unreasonably dangerous product as the licensor’s, where the licensor’s relationship with the technical manufacturer or seller made it a significant participant in the enterprise by which the product is brought to market, and where the licensor controlled or had the ability to control the design, manufacture, or quality of the merchandise.
¶ 19 Here, Bridgestone itself provided the evidence of its corporate relationship with BFMX. In support of its cross-motion for partial summary judgment, Bridgestone submitted the affidavit of Brian Queiser, a senior product engineer familiar with the corporate structure of Bridgestone and its subsidiaries. He stated that BFMX had manufactured the tire in Mexico in 1998. He further stated that until December 2001, BFMX had been a subsidiary of Bridgestone/Firestone, Inc. (BFS) and that BFS later had merged into Bridgestone. Bridgestone had later transferred its ownership interest in BFMX to Bridgestone/Firestone Americas Holding, Inc., Bridgestone’s parent company. Therefore, when the tire in question was manufactured, Bridgestone’s predecessor in interest owned BFMX.
¶20 Queiser, however, further declared that BFMX was an “independent entity,” “solely responsible for the manufacture of tires fabricated” at its Mexican facility. He stated that BFMX produced and distributed the type of tire at issue in Mexico and had its own marketing organization. Moreover, neither Bridgestone nor BFS had ever imported the tires to the United States or sold them as original equipment on vehicles sold in the United States. Finally, Queiser stated that, although it “would not be unusual” for BFMX to use manufacturing specifications provided by Bridgestone, BFMX would “necessarily” have had to adapt such specifications to “the equipment and processes in place at its manufacturing facility.”
¶21 In rejecting Bridgestone’s argument and finding this case “substantially similar” to Torres, the trial court stated:
[Bridgestone] does not dispute that at the time of the Naranjo accident and tender of defense, [Bridgestone] was a trademark licensor to BFMX, that BFMX was a wholly owned subsidiary of [Bridgestone], that BFMX manufactured the tire in compliance with [Bridgestone]’s standards and specifications, and that the tire bore the Bridgestone/Firestone trademark. 6
The trial court further noted Bridgestone’s response to an earlier consumer warranty claim, submitted by A.P.S. and involving the same model of tire from the same vehicle. 7 Bridgestone had accepted the faded tire for inspection and, although it denied warranty coverage, had not rejected the claim because BFMX rather than it had manufactured the tire.
¶ 23 Bridgestone argues the evidence provided by Queiser falls short of the evidence presented in Torres and notes A.P.S. did not demonstrate that a licensor/licensee relationship existed between Bridgestone and BFMX or that the tire in question actually was manufactured according to Bridgestone’s standards and specifications. But this overlooks the essentially undisputed facts noted in ¶ 21, supra. And, as the court in Torres stated, the “realities of the marketplace” must be recognized in addition to technical corporate form and organization:
[W]e do not believe it is good law to allow multinational firms the freedom to compartmentalize strict liability____
The marketplaсe, as described by the facts of this case, indicates very clearly that we deal with a tire designed to be a Goodyear tire, produced, packaged, advertised, and sold as a Goodyear tire, and warranted by Goodyear. To hold, as we are asked, that when the product is defective and unreasonably dangerous it should not be considered a “Goodyear” tire but a “Goodyear GB” tire would be to espouse a doctrine that would no doubt surprise most Goodyear customers, and perhaps some officers of Goodyear itself.
Id.
at 92-93,
¶24 We agree with Bridgestone that the evidence produced in this case is less comprehensive than that produced in
Torres,
that the ruling in that case was based on its particular facts, and that our supreme court’s answer to the certified question there was “sometimes yes and sometimes no, deрending on the facts.”
Id.
at 90,
IV.
¶ 25 Bridgestone also contends the tender of defense was improper because a fundamental, inherent conflict of interest existed between itself and A.P.S. That conflict, Bridgestone further argues, “invalidated” the tender, prevented it from assuming A.P.S.’s defense in the Naranjo case, and “negates any indemnity obligation under [§ ] 12-684.”
¶26 Both sides agree that § 12-684 contemplates and implicitly requires a “proper” tender of defense, even though the statute does not expressly so provide. The parties further agree that A.P.S.’s tender of defense
¶27 In contrast, Bridgestone contends an otherwise sufficient tender should be deemed “improper” or “fatally deficient” if the indem-nitor’s acceptance of the tender would place the indemnitor and indemnitee in a conflict situation. In other words, Bridgestone argues, when an inherent conflict of interest exists between an indemnitee and indemnitor, the latter may reasonably refuse to accept the tender without being exposed to a potential statutory indemnity obligation based on that refusal. Relying primarily on Restatement (Second) of Judgments § 57 (1982) (hereafter Restatement § 57) and other common law principles, Bridgestone contends an inherent conflict of interest existed between itself and A.P.S.
¶28 In pertinent part, Restatement § 57 states:
(2) If there is a conflict of interest between the indemnitee and the indemnitor regarding the injured person’s claim against the indemnitee, so that the indem-nitor could not properly have assumed the defense of the indemnitee, a judgment for the injured person precludes the indemnitor only with respect to issues determined in that aсtion as to which:
(a) there was no conflict of interest between the indemnitee and the indemnitor; and
(b) the indemnitee conducted a defense with due diligence and reasonable prudence.
(3) A “conflict of interest” for purposes of this Section exists when the injured person’s claim against the indemnitee is such that it could be sustained on different grounds, one of which is within the scope of the indemnitor’s obligation to indemnify and another of which is not.
See also Cunningham v. Goettl Air Conditioning, Inc.,
¶ 29 Similarly, this court has observed, albeit in a case that involved neither a product liability claim nor § 12-684,
even if indemnification principles were applied there was no duty to defend in this case because of the conflict of interest between [the indemnitee] and [the indem-nitor] ____In these circumstances, a properly notified indemnitor need not defend and is free to contest the basis of its liability in a subsequent action.
Industrial Indem. Co. v. Beeson,
In such circumstances, it is to the interest of the indemnitee that, if liability be established against him, it be established on a ground within the indemnity obligation so that he can shift the loss to the indemnitor. It is to the interest of the indemnitor that, if liability be established against the indemnitee, it be on a ground outside the indemnity obligation. Neither of them could defend the action in a way that would fairly protect the interests of the other in all respects. Because of the conflict, the indemnitor cannot properly be called on to take control of the defense of the action, for he would be required either to sacrifice his own interests without a fair opportunity to litigate questions concern inghis liability or to commit a breach of his duty to conduct a vigorous defense of the indemnitee....
When, because of conflict of interest between the indemnitee and indemnitor, the indemnitor cannot properly take over the defense of the indemnitee, the situation is one оf a justified refusal by the indemnitor to defend the action.
Restatement § 57, cmt. c.
¶ 30 The trial court ruled that no conflict of interest actually existed between Bridge-stone and A.P.S. We disagree.
9
We first note that the plaintiffs in the Naranjo case were not concerned about how or when the defect in the tire arose — at the time of manufacture or sometime later in the chain of distribution. They had no obligation to present such evidence.
See Mineer v. Atlas Tire Co.,
¶ 31 In contrast, to secure its indemnity claim against Bridgestone, A.P.S. wanted to show that thе tire was defective when it left Bridgestone’s control.
See Dixon v. Fiat-Roosevelt Motors, Inc., 8
Wash.App. 689,
¶ 32 Although Bridgestone was not a party to the Naranjo case, its interest obviously would have been to minimize its liability by proving that the tire had neither a manufacturing nor design defect when Bridgestone placed it into the stream of commerce.
See Jimenez v. Sears, Roebuck & Co.,
¶ 33 In short, the divergent positions of Bridgestone and A.P.S. created an irreconcilable conflict of interest between them.
See Dixon,
¶ 34 First, the legislature has clearly mandated that a manufacturer that rejects a
¶ 35 Second, Bridgestone cites no authority, nor have we found any, for the proposition that a conflict of interest between indem-nitor and indemnitee invalidates the latter’s tender of defense or otherwise renders it “improper.” Restatement § 57(2) states that a conflict of interest might prevent the in-demnitor from “properly ... assum[ing] the defense of the indemnitee.” But that section does not suggest that the tender of defense itself is improper.
¶ 36 Third, as A.P.S. remarked at oral argument, if Bridgestone’s position were the law, it would essentially “gut” the statute in cases such as this involving used products. Despite the inherent conflict between the parties, we do not view this case as particularly unusual or anomalous. Product liability cases involving used products that detеriorate with age and usage might easily pit the ultimate seller against the manufacturer. That is particularly so when, as here, the product admittedly was defective at the time it was last sold or leased before the accident. Under such circumstances, both the manufacturer and ultimate seller would have an interest in and incentive to “point the finger” at each other. The manufacturer would seek to disprove any design or manufacturing defect in the product when it left its hands, and the ultimate seller would seek to establish such defect and disprove or minimize any independent negligence on its part.
¶ 37 Fourth, from a practical standpoint, the conflict of interest did not require Bridgestone to reject AP.S.’s tender of defense. Had Bridgestone instead accepted the tender, it presumably could and would have retained counsel of its choice to defend A.P.S. in the Naranjo ease. 10 And, in that event, neither the handling of the defense nor the outcome of that case necessarily would have been any different. Even if defended by counsel retained by Bridgestonе, A.P.S. still would have sought to decrease the percentage of fault allocated to the Naranjos’ negligence claim and increase the percentage allocated to their product liability claim.
¶38 In short, had Bridgestone accepted A.P.S.’s tender of defense in the Naranjo case, A.P.S. presumably would have done precisely what it actually did — present a defense that in essence blamed the accident on a manufacturing or design defect in the tire, rather than on any independent negligence on A.P.S.’s part. That scenario, however, would have precluded Bridgestone’s indemnity liability under § 12-684(A) because that statute premises any indemnity obligation on the manufacturer’s “refus[al] to accept a tender of defense.” Thus, had Bridgestone ac
cepted
¶ 39 Although A.P.S. still might have pursued a common law claim for indemnity, Bridgestone would have been entitled to raise any available common law defenses and fully litigate that claim, for example, by presenting evidence that the tire had no design or manufacturing defect when it left Bridge-stone’s control. 11 Thus, had Bridgestone accepted AP.S.’s tender and assumed its defense, it would have preserved its right to litigate the nature and extent of any indemnity obligation owed to A.P.S., but arguably not issues as to which there was no conflict of interest between them (for example, the Nar-anjos’ damages). See Restatement § 57(2)(a), cmt. c and Illustration 5. In sum, the conflict between Bridgestone and A.P.S. did not invalidate or negate the latter’s tender of defense.
y.
¶ 40 Bridgestone also argues AP.S.’s “utter and complete failure to defend the strict liability claim” in the Naranjo case forecloses indemnity. In support of that proposition, Bridgestone relies on Restatement § 57(2)(b),
Cunningham,
and
Falcon v. Beverly Hills Mortgage Corp.,
¶41 The record clearly supports Bridge-stone’s contention that A.P.S. not only failed to diligently defend against the product liability claim in the Naranjo case, but also “affirmatively blamed [Bridgestone] for the defect in the tire and the underlying accident.” A.P.S. does not suggest otherwise. Nonetheless, as the trial court correctly noted, § 12-684 does not condition indemnity rights on an indemnitee having diligently defended the product or the manufacturer’s interests, particularly when the manufacturer rejects a tender of defense. If Bridgestone ‘“was of the view that it could defend the case better with its own lawyers, it had full opportunity to do so but declined.” ’
Litton Sys., Inc. v. Shaw’s Sales & Serv., Ltd.,
¶ 42 As A.P.S. points out, “[i]f a manufacturer declines a tender and leaves the seller to fend for itself, it gambles on its ability to later prove one of the statutory exceptions” under § 12-684(A). And, as A.P.S. also observes, after Bridgestone failed to accept its
VI.
¶43 Bridgestone also argues that saddling it with a statutory indemnity obligation based on a strict construction of § 12-684(A) would contravene other well-established common law principles and be “fundamentally unfair.” As noted in ¶ 32,
supra,
under common law, a manufacturer may be held strictly liable in tort only if its product is defective and unreasonably dangerous at the time the product left the manufacturer’s control.
See Jimenez; Piper; Jordan; see also
A.R.S. § 12-683(2). A defect that existed when the product left the manufacturer’s control would render both the manufacturer and seller strictly hable.
See Rocky Mountain Fire & Cas. Co. v. Biddulph Oldsmobile,
¶ 44 A manufacturer’s indemnity obligation, Bridgestone contends, should be no greater than its primary duty to the person injured by the allegedly defective product. Thus, Bridgestone further argues, a manufacturer should not be required to indemnify a seller for a “defect that arose after the produсt left the manufacturer’s control.” To do so, it argues, “render[s] a manufacturer derivatively liable for indemnity in situations where the manufacturer would have no primary habihty to the injured party” and “would transform manufacturers into absolute insurers against defects causing injury.”
¶45 Based on the foregoing common law principles, Bridgestone contends it is entitled to its “day in court on APS’s claim for indemnity” to litigate ah relevant issues bearing on that claim, including the nature, cause, and time of origination of the tire defect. According to Bridgestone, the law should not require it to indemnify A.P.S. based on its reasonable refusal to accept AP.S.’s tender of defense, and without affording Bridge-stone an opportunity to htigate the indemnity-related issues.
¶ 46 Although we find Bridgestone’s arguments somewhat persuasive, we cannot accept them. Section 12-684(A) does not condition a seller’s indemnity rights on any of the common law factors Bridgestone cites. For example, as A.P.S. points out, “the statute does not require proof that the product was defective or that the defect originated with the manufacturer.” Contrary to Bridgestone’s argument, the statute does not condition a manufacturer’s indemnity obligation on the seller’s “showing that the defect arose from the manufacturing process itself.” In that same vein, Bridgestone contends “an otherwise innocent seller is entitled to indemnity from the manufacturer, both at common law and under [§ ] 12-684, if the seller can actually show that the defect existed when the product left the manufacturer’s hands.” But even if common law supports that proposition, § 12-684(A) has no such condition.
VII.
¶ 47 In sum, the various common law principles and defenses on which Bridgestone relies are unavailing under § 12-684(A). Neither the conflict of interest between A.P.S. and Bridgestone nor AP.S.’s handling of its defense in the Naranjo case invalidated AP.S.’s tender of defense or negated Bridge-stone’s statutory obligation to indemnify A.P.S. Because of its refusal to accept the tender of defense, Bridgestone was obligated to “indemnify the seller for any judgment rendered against the seller,” unless either of
¶48 In support of a contrary conclusion, Bridgestone argues that we should superimpose the various cоmmon law principles discussed above, including those embodied in Restatement § 57, on § 12-684 and interpret and apply the statute consistently with those principles. According to Bridgestone, “[t]he scope of a manufacturer’s indemnity obligation under [§ ] 12-684 must be construed in light of common-law rules of indemnity.”
¶ 49 Bridgestone relies primarily on A.R.S. § 12-682 for that argument. That statute provides: “The previously existing common law of products liability is modified only to the extent specifically stated in this article and § 12-551.”
See also Torres,
¶ 50 We are not persuaded by Bridge-stone’s argument. Although § 12-684(A) clеarly does change some aspects of the common law relating to indemnity claims by sellers against manufacturers, the legislature apparently intended such change. And, insofar as § 12-684(A) alters the common law of products liability,
13
§ 12-682 expressly permits that “to the extent specifically stated” in the statutes. As our supreme court noted in
Torres,
§ 12-684 expressly “provide[s] for indemnification between manufacturers and sellers.”
¶ 51 Absent any constitutional infirmity, therefore, the statute controls and is unaffected by common law principles.
14
Were we to interpret § 12-684(A) by importing Bridgestone’s common law and policy arguments into the statute, “[s]uch an interpretation in effect [would] amend[ ] the statute to require proof of elements not set forth by the legislature.”
Sepahi,
VIII.
¶ 52 Bridgestone further contends the record contains triable issues of fact on one or both of the statutory exceptions in § 12-684, thereby precluding summary judgment. We
¶ 53 We first note that the manufacturer bears the burden of proving one of the exceptions under § 12-684(A)(1) or (2).
See Desert Golf Cars,
¶ 54 We also note that both exceptions specifically refer to “[t]he seller,” rather than more broadly to any party in the chain of distribution that might have handled, marketed, or sold the product after it left the manufacturer’s hands and before the ultimate sellеr obtained it. § 12-684(A)(1), (2). Thus, that some party in the chain of distribution other than the final seller might have known of the defect or might have altered, modified, or installed the product does not relieve the manufacturer of its indemnity obligation to the final seller under § 12-684. We therefore disagree with Bridgestone’s unsupported contention that § 12-684(A)(2) “forecloses indemnity in situations where the underlying injuries resulted from an alteration of the product for which the seller is responsible,” even if the seller itself did not alter, modify, or install the product.
¶ 55 In support of that proposition, Bridge-stone relies on dicta in
Jordan.
In holding that sellers of used goods may be subject to strict liability in tort, Division One of this court noted that, “whether the product is new or used,” “the dealer will not be able to obtain indemnity from the manufacturer if there has been a substantial change in the product since it left the manufacturer.”
¶ 56 We also reject Bridgestone’s assertion, based on dicta in
Western Agricultural Insurance Co. v. Chrysler Corp.,
¶57 We agree with the trial court that Bridgestone failed to establish either of the two exceptions and that the record does not reflect a triable issue of fact on those. We also agree with the trial court that the first exception requires evidence of the seller’s actual “knowledge of the defect in the product.” § 12-684(A)(1). According to Bridgestone, the record presents disputed issues of fact on “whether APS had reason to know of the alleged defect at the time that it rented the van to the Naranjos.” Contrary to Bridgestone’s argument, however, mere constructive knowledge does not suffice.
¶58 In construing a statute, “[w]e give words their usual and commonly understood meaning unless the legislature clearly intended a different meaning.”
State v. Korzep,
¶ 59 In general, when the legislature has chosen to employ a standard of actual or constructive knowledge, it has expressly so stated. See, e.g., A.R.S. §§ 4-241(B) (liquor licensee who fails to obtain proof of age “is deemed to have constructive knowledge of the person’s age”); 44-1531 (wilful violation of consumer fraud statute occurs when party “knew or should have known” conduct was prohibited); cf. A.R.S. § 13-107(B) (limitations period commences on state’s actual discovery or discovery that should have occurred with exercise of reasonable diligence). That the legislature supposedly rejected a proposed amendment in 1978 to add the word “actual” before the word “knowledge” in § 12-684(A)(1) and has chosen to use the phrase “actual knowledge” in some other statutes does not alter our conclusion. 16 See A.R.S. §§ 14-3714; 29-319(D). The legislature might well have deemed the proposed amendment superfluous. Absent any meaningful legislative history to suggest that the legislature intended the word “knowledge” in § 12-684(A)(1) to include either actual or constructive knowledge, =wе decline to interpret the statute in that manner. 17 Rather, we give the word “knowledge” in (A)(1) its common, understood meaning — that the seller actually knew of the product’s defect.
¶ 60 Bridgestone points to evidence presented in the Naranjo case but also included in this record that A.P.S. had known of the prior failure in the van’s right front tire, had submitted that tire for inspection, had declined a request to inspect the remaining tires, and had rented the van to the Naranjos before obtaining the results from Bridgestone of the first tire inspection. Bridgestone also emphasizes that seventy percent of the jury’s verdict in the Naranjo case was based on its finding of independent negligence against A.P.S. That negligence, Bridgestone asserts, included A.P.S.’s failure to inspect the tire, to warn the Naranjos of the prior incident involving the other tire, and to replace all of the tires after the prior incident. According to Bridgestone, all of the foregoing facts or implicit findings “show that APS acted negligently by introducing a product that it knew or should have known to be defective into the stream of commerce.”
¶ 61 None of those facts, however, permits a finding or inference that A.P.S. actually knew of any defect in the van’s right rear tire
¶ 62 The same is true with respect to the exception in § 12-684(A)(2). The trial court referred to “uncontested evidence at the Naranjo trial” that “A.P.S. did not misuse, alter or modify the [Bridgestone] tire in any way.” Bridgestone challenges the trial court’s having taken judicial notice of the entire record in the Naranjo case for substantive purposes, including the foregoing evidence. We need not address that issue, however, because, unlike the manufacturer in Desert Golf Cars, Bridgestone failed to present any triable issues of fact on the (A)(2) exception, on which it bore the burden of proof.
¶ 63 In sum, the record does not present any genuine issue of material fact on either exception. In his affidavit attached to Bridgestone’s motion for reconsideration below, Bridgestone’s tire expert оpined that the tire in question had failed as a result of previous punctures that had been improperly repaired. Assuming that evidence was timely presented below and properly before us, however, Bridgestone’s expert did not state that A.P.S. (rather than some other entity) had known of the tire defect or had altered, modified, or installed the tire. Nor does any other evidence in the record support a finding or inference of those facts. Accordingly, the trial court did not err in granting summary judgment in favor of A.P.S. on its indemnity claim under § 12-684(A).
CONCLUSION
¶ 64 Because Bridgestone was statutorily obligated to indemnify A.P.S. under § 12-684(A), we do not address A.P.S.’s alternative claims for common law vouching in and indemnity or contribution, on which the trial court also granted summary judgment in favor of A.P.S. See Foremost-McKesson; Litton Sys.; Dixon. The trial court’s summary judgment in favor of A.P.S. based solely on § 12-684(A) is affirmed,
Notes
. Although A.P.S. actually leased rather than sold the product, lessors and sellers are treated the same for product liability purposes.
See
A.R.S. § 12-681(7) ("'Seller”’ includes a "lessor, engaged in the business of leasing any product ... for ... use[] or consumption.”);
Torres v. Goodyear Tire & Rubber Co.,
. Although the record contains A.P.S.’s notice naming Bridgestone as a non-party at fault, the verdict form submitted to the jury in the Naranjo case did not include Bridgestone. Nonetheless, the parties in that case essentially treated Bridge-stone as a non-party at fault throughout the trial.
See Bridgestone/Firestone North America Tire, L.L.C. v. Naranjo,
. The Naranjos’ negligence claim, and presumably the seventy percent portion of the verdict the jury allocated to that claim, rested on allegations that A.P.S. had failed to inspect the subject tire, warn the Naranjos of a prior incident involving another virtually identical tire on the same vehicle, or replace the other tires after that prior incident. See n.7, infra.
. The Naranjos, whom Bridgestone also named as defendants in this DRA, counterclaimed against Bridgestone for negligence and strict liability in tort based on the defective tire. We previously affirmed the trial court’s summary judgment in favor of Bridgestone on the Naran-jos’ counterclaim.
Bridgestone/Firestone North America Tire, L.L.C. v. Naranjo,
. Both below and on appeal, Bridgestone agreed that the judgment in the Naranjo case "would define the amount at stake” on any indemnity or contribution claim by A.P.S. And, A.P.S. implicitly agrees that its indemnity claim is limited to that portion of the Naranjo judgment that was allocated to their product liability claim, that is, thirty percent (or $2,861,951.40) of the total judgment.
. The hearing on the parties’ cross-motions for summary judgment was not reported. But when specifically asked at oral argument in this court about the facts set forth in V 21 above, Bridge-stone only questioned the finding that BFMX had manufactured the tire in compliance with Bridgestone’s standards and specifications, correctly noting that the record did not clearly establish that. In any event, in the absence of a transcript of the hearing below, we presume the record supports the trial court's recitation of undisputed facts.
See In re Estate of Mustonen,
. Several months before the Naranjo accident, the right front tire on the same rental van suddenly failed. A.P.S. took that tire to a local Bridgestone service center and, at its direction, later sеnt it to Bridgestone headquarters in Tennessee for inspection. Bridgestone denied warranty coverage, claiming that the tire had failed because an old puncture had damaged the tread and allowed moisture to enter the tire.
. The letter in which A.P.S. tendered its defense was sufficient because it detailed the substance of the Naranjos' allegations, enclosed a copy of their complaint (which alleged the tire was defective), and quoted A.R.S. § 12-684(A) in its entirety.
See, e.g., Cunningham v. Goettl Air Conditioning, Inc.,
. At oral argument, A.P.S. acknowledged that its interests and Bridgestone’s probably did conflict. But A.P.S. argued that conflicts of interest between the manufacturer and ultimate seller typically would arise in cases such as this involving used products, and that any such conflicts are irrelevant under § 12-684. The trial court agreed with the latter proposition but also erroneously found no conflict of interest existed between Bridgestone and A.P.S.
. In that situation, of course, the manufacturer will bear the cost of defending the seller in the underlying action and might be unable to recoup that cost should the manufacturer ultimately prevail in a subsequent indemnity action. But that cost often will pale in comparison to the amount of the manufacturer's ultimate indemnity liability if the manufacturer refuses to accept the tender and later cannot establish one of the two exceptions under § 12-684(A). In addition, as Bridge-stone acknowledges, a manufacturer might be required to indemnify (or reimburse) the seller for defense costs incurred in the underlying tort action even when no product defect was proven.
See Desert Golf Cars v. Yamaha Motor Co.,
. The trial court implicitly ruled that the jury in the Naranjo case had found a "design or manufacturing defect in the product." But we agree with Bridgestone that no such determination was made on either “the nature of the tire defect or the time at which it arose.” Accordingly, in any common law indemnity action, Bridgestone would have been entitled to litigate those issues, even had it assumed A.P.S.’s defense.
See
Restatement § 57(1)(b), (2), cmt. a (indemnitor only precluded from relitigating issues “determined” in underlying action against indemnitee whether or not parties had conflict of interest);
see also SCAC Transport (USA) Inc. v. SS Danaos,
. A manufacturer can also be held strictly liable in tort for "informational defects encompassing instructions and warnings,” but no such claim is at issue here.
Gosewisch v. Am. Honda Motor Co.,
. A.P.S. argues § 12-682 is inapplicable here because § 12-684 does not purport to change “[t]he prеviously existing common law of products liability.” § 12-682 (emphasis added); see also A.R.S. § 12-681(3) (defining "[p]roduct liability action” but not encompassing indemnity action by seller against manufacturer). We do not necessarily agree with that distinction and, in any event, do not decide this issue on that basis.
. To the extent Bridgestone contends § 12-684(A) violates due process, we find no merit to the argument and no support for it in
Desert Golf Cars,
on which Bridgestone relies.
See Litton Sys.,
. We note, however, that the statutory scheme is not necessarily unfair or impractical. Under § 12-684, a manufacturer may avoid the dire consequences Bridgestone postulates by either accepting the seller’s tender of defense or later proving one of the statutory exceptions. See ¶¶ 37-39 and nn.10-11, supra.
. The record does not contain the proposed, legislative amendment to which Bridgestone refers.
. At common law, courts have expressed differing views on this subject.
Compare Hales v. Green Colonial, Inc.,