The opinion of the court was delivered by: Sweet, District Judge.
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 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.
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.
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
During the discovery phase of this action, Armac and
Gonzalez entered into the following stipulation ("the
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
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