Document Type

Article

Publication Date

12-21-1990

Abstract

W.R. Grace and Co.-Conn. ("Grace"),[1] fourth-party-defendant-appellant, appeals from a summary judgment entered in the United States District Court for the Eastern District of New York (Korman, J.), dismissing its counterclaim against fourth-party-plaintiff-appellee Kalex Chemical Products, Inc. ("Kalex"). In its counterclaim, Grace sought indemnification from 455*455 Kalex for sums paid out in settlement of a personal injury suit in which it was impleaded. In its fourth-party complaint, Kalex alleged that Ronald Haynes, a Kalex employee, was injured while using a negligently modified precision calender machine that had been sold to Kalex "AS IS" as part of a 1978 Sale and Purchase Agreement ("Sales Agreement") by Grace. Grace's claim for indemnification was based on the assumption of liabilities clause contained in the Sales Agreement. The district court found that Grace failed to establish that it was the "unmistakable intent" of the parties that Kalex would indemnify Grace for Ronald Haynes' injury resulting from Grace's own negligence. Consequently, the district court dismissed Grace's counterclaim for indemnification.

We hold that the district court did not err in finding that the agreement between the parties did not include the indemnity obligation urged by Grace.

Comments

921 F.2d 453 (1990)

Ronald HAYNES and Keisha Haynes, Plaintiffs,

v.

KLEINEWEFERS AND LEMBO CORPORATION, Defendants. LEMBO CORPORATION, Third-Party-Plaintiff, v. KALEX CHEMICAL PRODUCTS, INC., Third-Party-Defendant. KALEX CHEMICAL PRODUCTS, INC., Fourth-Party-Plaintiff-Appellee,

v. W.R. GRACE AND CO., Fourth-Party-Defendant-Appellant.

No. 134, Docket 90-7381. United States Court of Appeals, Second Circuit.

Argued September 12, 1990.

Decided December 21, 1990.

New York Law School location: File #1055, Box #126

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