Lampe v. Genuine Parts Com.

463 F.Supp.2d 928

Christopher LAMPE, Dannie Jo Lampe, Plaintiffs, v. GENUINE PARTS COMPANY, et al., Defendants.

Genuine Parts Company, Defendant/Third-Party Plaintiff, v. Nu-Way Transportation Services, Inc., Great West Company, and Exide Corp.,¹ Third-Party Defendants.

No. 04-C-0244.

United States District Court, E.D. Wisconsin.

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Victor E. Plantinga, Rose & De Jong, Brookfield, WI, for Plaintiffs.

Thomas P. Lyons, Bruce A. Ranta, Lyons & Ranta LLP,: Brookfield, WI, Thomas A. Vickers, Vanek Vickers & Masini PC, Chicago, IL, Daniel M. Pedriana, Lindner & Marsack SC, Milwaukee, WI, for Defendants.

Robert F. Johnson, Cook & Franke SC, Emily B. Di Ulio, Thomas N. Klug, Borgelt Powell Peterson & Frauen SC, C. Paul Snyder, Maria Delpizzo Sanders, Terry E. Johnson, Heidi M. Miller, Peterson Johnson & Murray SC, Milwaukee, WI, for Third-Party Defendants.

ORDER

STADTMUELLER, District Judge.

In this diversity action, plaintiff Christopher Lampe ("Lampe") was injured when a bag of sulfuric acid being carried as cargo ruptured in the truck that he was driving. Lampe alleges that defendant Genuine Parts Company ("Genuine Parts"), whose employees loaded Lampe's truck with the sulfuric acid, was negligent by failing to load the sulfuric acid in the trailer properly and by failing to provide Lampe with sufficient information regarding the sulfuric acid. Genuine Parts filed a third-party complaint, alleging that third-party defendants Exide, Nu-Way Transportation Services, Inc. ("Nu-Way"), and Great West Casualty Company ("Great West") are each obligated by contract to defend and indemnify Genuine Parts against the Lampe suit. Exide, Nu-Way, and Great West have filed separate motions for summary judgment seeking a declaratory judgment that they have no duty to defend or indemnify Genuine Parts against the Lampe suit. For the reasons stated below, the court will grant each motion and dismiss Genuine Parts' third-party complaint against each of the third-party defendants.

BACKGROUND

In August 2001, Lampe was employed by Nu-Way as a truck driver. On August 21, 2001, Lampe arrived at a NAPA warehouse owned and operated by Genuine Parts.² Genuine Parts loaded pallets of auto parts onto Lampe's truck, including a pallet that held a box which contained a five-gallon bag of sulfuric acid, an acid used in car batteries. Lampe's job was to deliver the auto parts to NAPA retail stores in Southeastern Wisconsin. When Lampe was making his first delivery, the bag of sulfuric acid ruptured, spreading five gallons of sulfuric acid throughout the bed of the trailer. Lampe was injured as a result of inhaling fumes from the sulfuric acid.

Lampe filed suit in Milwaukee County Circuit Court, alleging that defendant Genuine Parts was negligent by failing to load the sulfuric acid in the trailer properly and by failing to provide Lampe with sufficient information regarding the sulfuric acid. Specifically, Lampe alleges that Genuine Parts stacked many levels of auto parts on the box containing the bag of sulfuric acid. Lampe alleges that Genuine Parts failed to warn him that he was transporting sulfuric acid and failed to instruct him how to clean up sulfuric acid should there be a spill. Lampe seeks compensation for his injuries, and his wife, Dannie Jo Lampe, seeks compensation for loss of consortium due to Genuine Parts' negligence. Lampe does not allege that any party other than Genuine Parts was negligent.

Genuine Parts removed the action to this court based upon diversity jurisdiction and filed a third-party complaint alleging that third-party defendants Exide, Nu-Way, and Great West are each obligated by contract to defend and indemnify Genuine Parts against the Lampe suit. Genuine Parts' claims against the third-party defendants are based upon three contracts: (1) a trademark agreement with Exide, (2) a transportation contract with Nu-Way, and (3) an insurance policy issued by Great West to Nu-Way.

Genuine Parts' Trademark Agreement with Exide

Exide supplies sulfuric acid to Genuine Parts. On June 26, 1996, Genuine Parts and Exide entered into a NAPA Manufacturers' Trademark Agreement ("trademark agreement"). (See Genuine Parts' Third-Party Compl. Ex. C). The trademark agreement was in effect in August 2001. The trademark agreement contains the following indemnification provision:

18. Exide Corporation agrees to protect and indemnify NAPA and each NAPA Member Company, Distribution Center and NAPA Jobber from and hold each of the foregoing harmless against all liability, loss, damage, cost or expense (including but not limited to attorneys fees) which each of the foregoing may incur or be required to pay by reason of injury or death to persons or damage to property or bon caused by or arising out of any claim that any products manufactured and/or sold by Exide Corporation to NAPA Distribution Centers were defective in design, packaging, labeling, materials or workmanship, or fail to comply with any applicable law or regulation at the time of delivery to the NAPA Distribution Center or direct shipment delivery to the NAPA Jobber, excepting, however, any labels or packaging trademarks or formulations provided by or directed to be used by NAPA. Exide Corporation agrees to defend any action, suit or proceeding brought against NAPA or any NAPA Member Company, NAPA Distribution Center or NAPA Jobber insofar as such action, suit or proceeding is based on a claim that any products manufactured and/or supplied by aide Corporation were defective in design, packaging, labeling, materials or workmanship, or fail to comply with any applicable law or regulation at the time of delivery to the NAPA Distribution Center or direct shipment delivery to the NAPA Jobber, except for those matters stated above.

(See Genuine Parts' Third-Party Compl. Ex. C ¶ 18.) In other words, the trademark agreement requires Exide to defend and indemnify Genuine Parts against "a claim that any products manufactured and/or supplied by Exide Corporation were defective in design, packaging, labeling, materials or workmanship, or fail to comply with any applicable law or regulation at the time of delivery to [Genuine Parts]." (Id.) Lampe does not allege that the sulfuric acid was defective in any way or failed to comply with any applicable law.

Genuine Parts' Transportation Contract with Nu-Way

On August 28, 2000, Genuine Parts and Nu-Way entered into a Transportation Contract ("transportation contract") whereby Nu-Way agreed to transport Genuine Parts' property. (See Genuine Parts' Third-Party Compl. Ex. A.) The transportation contract was in effect in August 2001. The transportation contract requires Nu-Way to procure and maintain various types of insurance, including "Comprehensive General Liability ("CGL") Insurance, including blanket contractual coverage, in the amount of $2,000,000.00 combined single limit per occurrence." (Id. ¶ 6.2.) The transportation contract contains the following indemnification provision:

9. Indemnification. In addition to and not in lieu of the insurance responsibilities set forth in Paragraph 6 above and the cargo loss responsibilities set forth in Paragraph 7 above, [Nu-Way] hereby agrees to defend, indemnify and hold [Genuine Parts] harmless from and against:

A. any and all claims, lawsuits, actions or causes of action for damages, expenses (including attorneys' fees), costs, interest, compensation, loss of use, lost profits, punitive damages, or any other claim of any type for bodily injury, including death, to any persons (including [Genuine Parts'] employees or agents) or loss, theft, destruction or damage (including environmental damage) to any property, arising out of [Nu-Way's] performance of its obligations under this Agreement, including the use, maintenance or operation of any motor vehicle by [Nu-Way] pursuant to this Agreement.

B. any and all fines, citations, penalties or assessments for any violation of any federal, state or local law, regulation or ordinance arising out of or in connection with the use, maintenance or operation of any motor vehicle operated by [Nu-Way] in connection with the performance of [Nu-Way's] obligations under this Agreement.

C. [Genuine Parts] is responsible to provide accurate cargo information such as, but not limited too [sic], description and quantities of items being transported including all DOT required Hazardous material labeling and indentification [sic][.]

(See Genuine Parts' Third-Party Compl. Ex. A ¶ 9.) Genuine Parts and Nu-Way agreed to interpret the transportation contract under Georgia law. (Id. ¶ 17.) Lampe does not allege that Nu-Way was negligent in any way, including in the use, maintenance or operation of any motor vehicle.

Great West's Insurance Policy

Great West issued an insurance policy to Nu-Way for the period of July 1, 2001 to July 1, 2002 ("insurance policy"). (See Genuine Parts' Third-Party Compl. Ex. B.) Although the insurance policy does not name Genuine Parts as an insured, Genuine Parts alleges that it is an additional insured under the policy. Genuine Parts alleges that Great West is required to defend and indemnify it against the Lampe suit. Genuine Parts also alleges that Great West has not articulated a basis for its denial of coverage despite Genuine Parts' repeated requests.

* * * * * *

Exide, Nu-Way, and Great, West filed separate motions for summary judgment seeking a declaratory judgment that they have no duty to defend or indemnify Genuine Parts against the Lampe suit. On September 28, 2006, the court ordered the parties to file supplemental memoranda regarding the court's jurisdiction. The court also denied the pending motions for summary judgment without prejudice, noting that if the court determined that it has jurisdiction over this action, the court would consider the motions without requiring the parties to re-file their materials. The parties have filed supplemental memoranda, and with...