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GONZALEZ v. ARMAC INDUSTRIES

February 13, 1991

MARVIN GONZALEZ, PLAINTIFF,
v.
ARMAC INDUSTRIES, LTD., DEFENDANT. ARMAC INDUSTRIES, LTD., THIRD-PARTY PLAINTIFF, V. GENERAL THERMOFORMING CORP., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

The third-party defendant in the underlying action for personal injuries, General Thermoforming Corp. ("GTC"), a New York corporation, has moved to dismiss or in the alternative for summary judgment dismissing the claims against it pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P. For the reasons set forth below, the motion with respect to the contribution claim of defendant/third-party plaintiff Armac Industries ("Armac"), a Massachusetts Corporation is granted, and the motion with respect to its indemnification claim is denied at this time.

The Parties

The plaintiff in this action is Marvin Gonzalez ("Gonzalez"), a citizen of Honduras employed by third-party defendant at the time of the alleged injury that is the basis for this action. Armac manufactured the equipment upon which Gonzalez allegedly injured himself.

Prior Proceedings

On July 7, 1989, Gonzalez filed his complaint. After filing a third-party complaint, Armac moved to amend it. That motion was granted on March 16, 1990. On October 18, 1990, GTC filed this motion to dismiss or for summary judgment, and oral argument was heard on November 5.

The Facts

Armac designs, manufactures and sells thermoforming machines. On September 29, 1983, one of its machines was shipped to GTC, pursuant to a contract of sale (the "Sale Agreement"). The Sale Agreement included an indemnification provision (the "Indemnification Provision") which stated that:

  Purchaser shall use and shall require its
  employees to use all safety devices and guards
  and maintain the same in proper working order.
  Purchaser shall use and require its employees to
  use safe operating procedures in operating the
  equipment. If purchaser fails to observe the
  obligations contained in this paragraph,
  purchaser agrees to indemnify Armac to persons
  injured directly or indirectly in connection with
  the operation of the equipment.

The machine was designed without any type of guard located in front of the die mechanism on the machine. After the installation of the thermoforming machine, GTC installed a guard in front of the die mechanism on the machine.

Gonzalez began his employment with GTC on May 5, 1988. On December 21, 1988, Gonzalez attempted to remove a piece of plastic that had lodged in the upper die area of the machine. He raised the guard and reached into the die area of the machine. The die press came down on his right hand, causing injury to Gonzalez's hand, including the amputation of several fingers.

During the discovery phase of this action, Armac and Gonzalez entered into the following stipulation ("the Stipulation"):

  It is hereby stipulated and agreed by and between
  the attorneys for the plaintiff and the defendant
  that the defendant hereby admits liability for
  two percent of any damages sustained by the
  plaintiff and as may be awarded by the jury
  herein, and that the pleadings be deemed amended
  accordingly.
  It is further stipulated and agreed that the
  plaintiff shall not enforce any judgment against
  the defendant in excess of two percent of any
  total damages awarded by the jury to the
  plaintiff herein, except as loan arrangements may
  be necessary to permit the plaintiff to collect
  any monies from the third-party defendant in the
  event ...

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