MEMORANDUM OPINION
Plaintiffs filed this action in 1978 against Appellant Stauffer Chemical Company and Farmers Cooperative Association
1
seeking damages for рersonal injuries allegedly sustained as a result of their use of Cyth-ion 5-E (Malathion). The trial court granted summary judgment in favor of both Defendants based upon the running of the statute of limitations. Plaintiffs appealed. The Supreme Court in
Daugherty v. Farmers Co-op. Association,
On remand the trial court granted Appellant’s motion to join as an additional third party defendаnt, the Appellee herein, American Cyanamid. A principal ingredient in the allegedly defective product was Malathion, sold by Appellee under its registered trademark of Cythion. Appellant alleged in its third party complaint that it purchased Malathion from Appelleе and that it was simply a distributor of the product. It further alleged that if it was held responsible or liable to Plaintiffs under the breach of warranty theory, thеn it was entitled to indemnity over and against Ap-pellee for any and all damages suffered.
Appellee filed a motion for summary judgment arguing lаck of notice under the UCC, 12A O.S.1981 § 2-607(3)(a). That section provides:
(3) Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy;
Becаuse Plaintiffs originally filed their complaint in 1978 Appellee alleged under the above statute it was entitled to judgment, as it had no notice of аny claims against it until Appellant filed the third party action. That length of time, it submits, is unreasonable as a matter of law. The trial court agreed with Aрpellee and granted its motion.
Appellant appeals and argues the § 2-607(3)(a) notice provisions have no applicatiоn to its action for indemnity. 2 It contends it had no valid action against Ap-pellee until remand of the casé by the Oklahoma Supreme Court in that thе trial court had dismissed Plaintiffs’ entire claim leaving Appellant free from any liability upon which to base indemnity.
On the other hand, Appellee urges us to uphold the trial court’s application of § 2-607 and hold that Appellant was obligated to notify Appellee, as a component manufacturer of the final product, of any claim of breach of warranty.
Whether the notice provisions of the UCC may be interposed as a defense to a
Other jurisdictions have addressed similar problems involving notice provisions of Article 2 of the UCC. We are persuaded by the reasoning set forth in
Hill v. Joseph T. Ryerson & Son, Inc. v. United States Steel Corporation,
Under the principles of implied indemnity, notice to the indemnitor is not required unless the indemnitee seeks tо bind the indemnitor to the original judgments.
The West Virginia Supreme Court specifically addressed use of the UCC in an indemnity action. It clearly believed the UCC had no relevance to the products liability field, where the injured buyer was not seeking to rescind a sales contract and avoid pаying the purchase price for the product, but rather was attempting to recover damages for personal injuries caused by the product. That Court further stated:
“Nor is it particularly applicable where the seller has been sued by the injured buyer and the seller seeks to recover from the manufacturer of the defective product on an implied indemnity theory. We believe that the notice requirement оf [§ 2-607(3)(a) ] is applicable to the ordinary commercial transaction where the buyer is seeking to avoid the contract price because the goods are not acceptable, and this Code section should not be extended into the product liability field.”
The right to indеmnity is not limited to cases where there is an express agreement to that effect. A right to implied indemnity may arise out of a contractuаl or a special relationship between parties and from equitable considerations. In the case of implied or noncontractual indemnity, the right rests upon fault of another which has been imputed or constructively fastened upon he who seeks indemnity.
Central National Bank of Poteau v. McDaniel,
A claim for indemnity may arise from an action either in strict liability in tort, or breach of implied warranty of fitness. Originally both were judicially created causes of аction.
See Henningsen v. Bloomfield Motors, Inc.,
A cause of action fоr indemnity does not arise until the former judgment is paid. Central National Bank of Poteau v. McDaniel, supra at p. 1317. We decline to hold a third party plaintiff in such a suit to the “reasonable notice” rеquirements provided by the UCC for commercial settings. 3 The trial court erred in granting summary judgment to Appellee based on the notice requirements of 12A. O.S.1981 § 2-607(3)(a).
Appellant secondly argues the trial court erred in denying its application to amend its third party petition against Ap-pellee to include claims for negligence, products liability and contribution. This argument is without merit. The Supreme Court affirmed the trial court’s order dismissing the рlaintiffs’ action based on these theories. Thus, no caúse of action remained on remand based on negligence or products liability. Por a person to seek contribution under the Uniform Contribution Among Tortfeasors Act, 12 O.S.1981 § 832, the parties must be jointly or severally liable. An allegation that the party against whom contribution is sought is solely liable to the plaintiff, or that the
It is within the sound discretion of a trial court to grant amendments to pleadings and in the absence of abuse of discretion, we will not disturb its ruling.
Wilkinson v. Chicago Rock Island and Pacific R. Co.,
The trial court’s judgment is therefore AFFIRMED IN PART AND REVERSED IN PART and REMANDED for further prоceedings consistent with this decision.
Notes
. Neither Plaintiffs nor Farmers Cooperative Association are parties to this appeal.
. Although it dоes not appear in the record, Appellant apparently has settled with Plaintiffs. It seeks indemnity in the amount of the settlement plus costs and attorney fees from Appel-lee.
. C.f.
Ashley v. Goodyear Tire and Rubber Co. v. Bethlehem Steel,