Brettel v. Omron Scientific Techs., Inc.

302 F.Supp.3d 469

Kristen BRETTEL, Plaintiff,

v.OMRON SCIENTIFIC TECHNOLOGIES, INC. and Omron STI Machine Services, Inc., Defendants/Third Party Plaintiffs,

v.Madico, Inc., Third Party Defendant.

CIVIL ACTION NO. 14–13936–JGD

United States District Court, D. Massachusetts.

Filed March 27, 2018

Deborah M. Santello, Paul F. Leavis, Leavis & Rest, P.C., Boston, MA, for Plaintiff.

Marie E. Chafe, Julianne C. Fitzpatrick, Cornell & Gollub, Boston, MA, for Defendants/Third Party Plaintiffs.

Anthony E. Abeln, Austin D. Young, Lori K. Vaulding, Cornell & Gollub, Boston, MA, for Third Party Defendant.

MEMORANDUM OF DECISION AND ORDER ON MOTION OF THIRD–PARTY DEFENDANT, MADICO, INC., FOR SUMMARY JUDGMENT

Judith Gail Dein, United States Magistrate Judge

I. INTRODUCTION

The plaintiff, Kristen Brettell, was injured while working on a laminating machine at the facility of her employer, Madico, Inc. ("Madico"). She brought this action against the defendants, Omron Scientific Technologies, Inc. and Omron STI Machine Services, Inc. (collectively "Omron"), alleging that Omron had been negligent in its inspection, testing and/or servicing of the laminating machine. Omron brought a Third–Party Complaint against Madico for contractual indemnification (Count I) and breach of contract (Count II). This matter is presently before the court on "Third Party Defendant Madico, Inc.'s Motion for Summary Judgment" (Docket No. 75) pursuant to which Madico is seeking judgment in its favor on both counts of the Third–Party Complaint (Docket No. 48) ("Third–Party Compl."). For the reasons detailed herein, Madico's motion for summary judgment is DENIED.

II. STATEMENT OF FACTS ¹

Madico's Retention of Omron

Madico is a manufacturer of laminating and coating films for windows and other applications. It has a facility in Woburn, Massachusetts. Omron is a machine and safeguarding consulting company. SF ¶ 1. It is hired by manufacturing customers to, among other things, conduct safety training, evaluate equipment, and recommend, design and install safety improvements. Id.; OResp. ¶ 1. It is undisputed that on August 12, 2009, Omron sent a quotation to Madico to perform an assessment of the machinery at Madico (the "Quotation"). See SF ¶ 3; OResp. ¶ 3.² Included in the Quotation were "Terms and Conditions of Sale." SF ¶ 3; Ex. 3.

The Quotation provided in relevant part as follows:

OMRON STI Machine Services, Inc. is pleased to provide an estimate for the following machine and process safeguarding assessment services for the (2) line coaters, (3) slitters and (3) mixers at your facility in Woburn, MA:

• Perform on-site machine safeguarding assessment pursuant to relevant OSHA, ANSI, and NFPA standards and other applicable guidelines as identified by the customer for the equipment specified.

• Identify risk level based on intended operator interface and maintenance requirements and recommend commensurate risk reduction measures for the associated equipment. Reduction measures to comply with applicable guidelines.

• Provide a complete machine safeguarding assessment documentation package including identified risk levels, risk reduction recommendations, and plan-view drawings as well as line item spreadsheet including estimated cost to bring each machine or process into compliance.

Ex. 3. The "Terms and Conditions of Sale" attached to the Quotation included the following provision:

7. Indemnity. Omron will indemnify, defendant and hold Customer harmless from and against losses, damages, suits and related costs and expenses ("Losses") arising out of claims of third parties for bodily injuries (including death) ... to the extent such Losses are legally determined to result solely from a breach by Omron of its standard product warranty as set forth in the Standard Terms and Conditions or from the sole negligence of Omron ; provided that Omron's liability hereunder shall in no event exceed the price of individual Products or the Services provided as to which such liability is claimed. Notwithstanding any other provision, Customer shall indemnify, defend and hold harmless Omron Companies and their officers, directors, shareholders, affiliates, agents and employees harmless (sic) from and against all claims, liabilities, costs and expenses, including legal fees and costs (except those resulting from the willful misconduct or gross negligence of Omron), arising in any way in connection with (i) acts or omission of Customer or its employees or agents, (ii) Customer's use of the Products or System or the Services.

Id. (emphasis added). In response to this Quotation, on August 18, 2009, George Zanni of Madico sent Scott Brayton of Omron Purchase Order No. M01133 for a "machine guarding assessment report" and "[expenses for guarding assessment" in the amounts detailed in the Quotation. SF ¶ 4; Ex. 4.

The Assessment Report

Omron sent one of its consultants, David Semenchuk, to Madico from September 1, 2009 through September 3, 2009, where he performed a safety assessment of the machinery. See SF ¶ 6; OResp. ¶ 6. While there, Mr. Semenchuk inspected numerous machines, spoke with Madico employees, observed employees perform a cleaning of the laminating machine with a solvent on a cloth when the product needed to be cleaned, and, in general, performed his own assessments regarding the equipment. SF ¶¶ 6–8.

Consistent with the Quotation, on October 13, 2009, Omron emailed Mr. Zanni of Madico its "Machine and Process Safeguarding Assessment Report and Risk Reduction Proposal" (the "Safeguarding Proposal"). SF ¶ 10; OEx. 2. Therein, Omron identified various safety hazards with the machinery, made a risk evaluation of each hazard, and made risk reduction (safeguarding) recommendations. E.g., OEx. 2 at 19–26. In the Safeguarding Proposal, Omron included safeguarding options and an applicable pricing structure to entice Omron's customers to further retain Omron to do the work to implement the safeguarding recommendations. OResp. ¶ 13. Omron also included in the Safeguarding Proposal a copy of "Terms and Conditions for Services and Systems," which would be included in any contract for further implementation work by Omron. See OEx. 2 at 69. These Terms and Conditions included an indemnification provision identical to the one quoted above.

After its receipt of the Safeguarding Proposal, Omron and Madico discussed the report and its recommendations. SF ¶ 15; OResp. ¶ 15. As a result, on December 23, 2009, Omron sent Madico a "Detailed Summary Spreadsheet" and "Machine and Process Safeguarding Assessment Report and Risk Reduction Proposal" ("Revised Proposal"). OResp. ¶ 15; OEx. 3. Madico elected not to retain Omron to implement any of its safeguarding recommendations. SF ¶ 17; OResp. ¶ 17. According to Omron, it had no further contact with Madico until the instant litigation. OResp. ¶ 17.

The Litigation

Ms. Brettell was injured on April 4, 2013 while working at Madico. SF ¶ 18. She was working at the LC–3 laminating machine. OResp. ¶ 22. While the exact manner of her accident is in dispute, it appears that while attempting to clean a sheet on the back side of the roller, her hand got caught by the film and pulled between the idler roller system and the guide bar, crushing her right hand. See SF ¶ 22. The parties disagree as to whether either of Omron's Safeguarding Proposals identified the area where Ms. Brettell was injured as a potential area of injury. SF ¶ 16; OResp. ¶ 16.

Ms. Brettell brought suit against Omron STI on September 5, 2014, and added Omron Machine Services as a defendant on January 23, 2015. OResp. ¶ 25. She contends that the defendants were negligent "in the inspection, testing and/or service of the laminating line machine and/or its component parts[.]" Am. Compl. (Docket No. 24) ¶¶ 4, 8. She alleges further that Omron acted negligently by "failing to follow and comply with generally accepted industry standards, codes and practices[,]" by "causing or allowing a dangerous and hazardous condition to exist[,]" and by "failing to give adequate and effective warnings and proper instructions regarding safeguarding the said laminating line machine[.]" Id. Ms. Brettell has not brought suit against Madico, and any such suit would be barred by the Workers' Compensation Act.

Omron obtained leave of court to file a Third–Party Complaint against Madico, which was filed on May 17, 2016. (Docket No. 48). Therein, Omron has asserted a claim for Contractual Indemnification (Count I) and a claim of Breach of Contract (Count II) for failing to indemnify Omron and hold it harmless against Ms. Brettell's claims. Omron has not alleged any direct negligence claim against Madico. However, it contends that Ms. Brettell's injuries were caused by Madico's conduct. Briefly, Omron contends as follows:

The testimony and evidence in this case show clearly that Madico made independent decisions: to act in a manner contrary to Omron's recommendations and install a safety mat in the area of plaintiff's injury; to omit implementation of Omron's comprehensive recommendations; and to use parts, but not all, of Omron's machine safeguarding report. The evidence also shows that Mr. Malburg [a Madico engineer] made independent decisions about how his safety solutions would be integrated—physically, electrically, and functionally—into the equipment identified in Omron's assessment reports. As a result of those actions, omissions, and misuse of Omron's safeguarding assessment report by Mr. Malburg and other at Madico, the LC–3 machine was inadequately safeguarded, the risks identified by Omron were never reduced, and the hazardous conditions continued to exist for Madico's employees.

Omron's Opp. (Docket No. 87) at 11–12 (emphasis in original).

Additional facts will be provided below where appropriate.

III. ANALYSIS

A. Standard of Review—Summary Judgment

"The role of summary judgment is ‘to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ " PC Interiors, Ltd. v. J. Tucci...