*2 59, 166a(c). DUGGAN, (Tex.1986); and 60 Before MIRABAL Tex.R.Civ.P. summary judg- in WILSON, appeal issue on a JJ. is met this ment action whether movant OPINION burden. Houston v. Clear Basin Creek 671, (Tex.1979). Auth., 589 S.W.2d 678 DUGGAN, Justice. judg may grant A trial court not Appellant, Energy Compa- Products LTV a cause of ment as matter law aon summary ny, appeals general judgment a summary judg in a action not addressed by appel- in favor of granted the trial court proceeding. ment v. Chessher Southwest lee, Chaparral Inspection Company. We 563, Co., ern Tel. 564 Bell affirm. (Tex.1983). The movant must establish inspecting Chaparral in the is business summary judgment that it is entitled to a in- casing, and a contract to oil well had expressly presented on issues to the Bonner, Inc. spect casing for Joe Bonner by conclusively proving all es trial court Chaparral inspected to casing that sold elements its defense as a matter sential LTV; turn, LTV, casing to in sold the Auth., Basin 589 law. Clear Creek Hughes drilling for in oil Eastern use summary judgment S.W.2d at 678. A downhole, failed When wells. presumed dispose only issues those in Hughes Eastern sued LTV and Bonner all in the expressly presented, not issues $615,- Mississippi. by paying LTV settled City Guillory, case. v. 751 Beaumont forgiving Hughes cash Eastern 000 491, (Tex.1988). S.W.2d debts; $213,472.36 in Bonner settled summary judg- Chaparral’s motion for $60,000 paying Hughes Eastern cash. only addressed LTV’s ment Thereafter, in brought LTV this action Chaparral asserts that the other claim. against Chaparral to recover full Texas pled to its LTV are “roads theories paid in the Mis- for the amount indemnity” from Cha- goal, ultimate that is sissippi Chaparral filed a motion lawsuit. parral. Chaparral proved claims that it summary judgment on March 1991. for summary hearing that LTV judgment petition nine LTV filed its first amended it the relief seeks—indemni- cannot obtain later, In its first days on March thus, ty; pled theories to show various petition, sought recovery LTV un- amended Chaparral’s part irrelevant. on are fault (1) (2) negligence; misrep- der six theories: in Insurance Co. This Court held resentation; (3) misrepresenta- negligent Insurance, Security North American tion; (5) (4) party third implied indemnity; [1st (6) beneficiary; warranty of implied 1990, writ), settling a tort- that inspection. workmanlike preserve a contri may not feasor error, point of LTV asserts In its first nonsettling tort- a bution summary judgment, for that the motion assignment of a by purchasing an feasor first LTV’s amend- which was filed before a (negligent settle action failure to cause of filed, petition is insufficient as ed limits) coverage claim insurance within support judgment matter of law to plaintiff. common Id. from a' recovery asserted in grounds of additional that rejected appellant's claim There we petition. third first amended negligence and was for cause of action error, Chaparral that urges contribution, are stating that the claims for judgment summary was not entitled Id. without a difference.” “distinctions or evidence to produced no law cause causes of action The five additional five claims other than refute LTV’s are petition in its first amended indemnity. implied showing Chaparral methods of that simply moving fault, party LTV can so that was somehow at hold to show that it seeks. We has the burden recover misrepre- negligence, of material fact exists that claims for genuine issue LTV’s sentation, misrepresentation, judgment as matter it is entitled war- beneficiary, implied Jones, MMP, Ltd. v. of law. ranty inspection Finally, agency of workmanlike are all chain. there is no sure- merely means to indemni- ty relationship between LTV and end— Therefore, ty. if showed that would allow LTV to assert a vicarious motion for that LTV theory. liability *3 indemnity not entitled to as matter of a Armco, In Alloy American Steel v. Inc. law, proper. the was (Tex.App [14th . —Houston Appellant’s points first and third of error 1989, writ), no the court faced was are overruled. quite with a similar situation. American point LTV asserts in its second of Alloy buy plating had a contract to steel indemnity error it is entitled to that from Alloy’s from When American Armco. sub Chaparral. Chapar It is upon incumbent sequent alleged buyer plating that the was ral, as defendant/movant defective, Alloy replaced it American and judgment, to show that LTV is from barred sued Armco reimbursement under an bringing indemnity an claim Cha indemnity theory. granted The trial court parral aas matter of law. summary judgment, Armco’s motion for appellate which the court affirmed. Supreme The Texas Court abolished com- indemnity mon law between tort- decision, reaching In its the Fourteenth B feasors in & B Supply Auto v. Central Appeals Court of stated: Lines, Inc., Freight 816-17 provision There is no contractual for in- (Tex.1980). The court’s decision was based demnity the case before us. There- upon adoption of a comparative neg- Texas’ fore, we must determine whether the re- scheme, ligence precludes the which total lationship Alloy between American shifting ultimate from responsibility one such Armco is that either in law or in to supreme tortfeasor another. The court equity, may right a imply we to indemni- comparative neg- stated that under the new ty Alloy’s on American behalf. More scheme, ligence longer any “there is no implied specifically, obligation does an requiring basis for to one tortfeasor indem- indemnity arise out the contractual nify another tortfeasor when both have relationship companies? between the two per- been found a assessed centage jury.” of fault at the Id. relationship ... The between American expressly The court stated that hold- Alloy per- Armco not one is that ing was not a bar in cases where there is a right to imply suades us a to contractual basis for indemnity, where Alloy’s on American behalf. party’s liability purely one vicarious. Id. Id. at 175-76. exception The court carved a out bar, In LTV and case abolition common law relationship have a than far more tenuous Aircraft, Duncan v. Cessna parties Alloy, in American where the There, (Tex.1983). the court held that mere a contractual rela- fact of business comparative causation does not affect the held tionship parties was not between right of a retailer or other of the member give obligation to an rise marketing chain to from obtain indemnity. We conclude from American product the manufacturer of the defective Alloy parties situation in which two when the retailer or other of the member dealings have no contractual business —in marketing chain is for the conduit fact, dealings no direct business whatsoev- product independently defective improper place imply er—is obli- an an culpable. Id. at 432. appel- gation indemnity. We overrule The before does not within case us fall lant’s of error. second exceptions. of the three and Cha- trial court is af- parral providing had contract for indem- firmed. Chaparral, as inspector nification. an upstream suppli- for LTV’s well
er, MIRABAL, J., marketing not a of the dissents. was member
MIRABAL, Justice, dissenting.
proved
allegations,
all of its factual
it could
Chaparral,
not obtain indemnification from
I respectfully dissent.
granted
as a matter of
The trial court
law.
if
majority holds that even LTV was
summary judgment,
and the
retailer,
innocent
it has
opinion
majority
affirms.
indemnification from the
Supply
In B
& Auto
Central
actually
my opinion, major-
at fault.
In
Lines, Inc.,
(Tex.
Freight
joint). Accordingly, is entitled to who is conduit for a defective expendi- from product, to indemnification restricted discharge properly made in of such tures defective the of the manufacturer from liability. product. Although supreme it is true in- only court mentioned that instance of Chaparral filed a motion that, asserting liability, even if LTV demnification I see no reason co-tortfeasor, breaching could of con- to a tortfeasor suit breach 1. The warranties, tract, express for indem- be held liable to the other tortfeasor breach of misrep- i.e., products liability, negligence, nity, strict of the dam- for total reimbursement Auto, ages paid plaintiff. resentation. 603 B & S.W.2d at 816. 2212(a), repealed art. 2. Tex.Rev.Civ.Stat.Ann. 959, 17, 1985, 9(1) May Leg., ch. § 69th Act of dis 4.A for the defendant 3242, Now codified Laws Tex.Gen. 1985 if, only posing proper as a of the entire case is (Vernon 33.001 § Rem.Code Tex.Civ.Prac. Ann. & law, upon plaintiff matter could not succeed Supp.1992). pleaded. Rung, 717 v. theories Dodson 385, indemnity, [14th S.W.2d law doctrine 3. Under common 1986, writ). duty owed has breached one tortfeasor when supreme believe the court meant to exclude
recovery by FISHER, an innocent retailer under Appellant, Thomas present involved in the case. facts Bonni- well, Duncan, which written after Texas, Appellee. The STATE generalized language more uses than Dun- “An analogous indemnity right can: sur- No. 04-90-00108-CR. products liability protect vives cases to Appeals Texas, Court of retailer in chain of innocent distri- San Antonio. Bonniwell, bution.” at 819. Later, in Aviation v. Alexander & Office March
Alexander, (Tex.1988), supreme put way: court “The it this only remaining vestiges law of common liability purely involve vicarious situation,” product
or the innocent retailer
citing Bonniwell. majority also relies American *5 Armco, Inc.,
Alloy Steel v. 1989, no [14th Dist.]
writ). summary Armco involved judg
ment a retailer sued indemnity,
steel manufacturer for after the replaced
retailer had defective steel it had
sold to customer. The court held that
the manufacturer/retailer “is relationship persuades imply right one that us to
to indemnity_” The Armco court
reached mentioning this conclusion without Supreme
the Texas Court decisions B & Duncan, Supply, Bonniwell, Auto In my opinion,
Aviation the Arm- Office. holding co court’s particular point
was incorrect. stated,
For the reasons I would sustain points
LTV’s of error one and two. Ac-
cordingly, I would reverse the
judgment and remand the case to the trial
court.