Owens & Minor, Inc. and Owens & Minor Medical, Inc. v. Ansell Healthcare Products, Inc. and Becton, Dickinson and Company

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════════

No. 06-0322

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Owens & Minor, Inc. and

Owens & Minor Medical, Inc., Appellants,

v.

Ansell Healthcare Products,

Inc. and Becton, Dickinson and Company,

Appellees

════════════════════════════════════════════════════

On Certified Question from the United

States

Court of Appeals for the Fifth

Circuit

════════════════════════════════════════════════════

Argued October 19,

2006

Justice Green delivered the

opinion of the Court, in which Chief

Justice Jefferson, Justice Hecht, Justice Wainwright , and Justice Brister joined.

Justice Brister filed a

concurring opinion.

Justice O’Neill filed a

dissenting opinion, in which J ustice Medina, Justice Johnson , and Justice Willett joined.

Section 82.002 of the Texas Civil Practice and Remedies Code entitles an

innocent seller to seek indemnity for litigation costs from the manufacturer of

a product alleged to be defective. The United States Court of Appeals for the

Fifth Circuit certified to this Court the following question concerning the

scope of the manufacturer’s indemnity obligation under Section 82.002:

When a distributor

sued in a products liability action seeks indemnification from less than all of

the manufacturers implicated in the case, does a manufacturer fulfill its

obligation under Texas Civil Practice and Remedies § 82.002 by offering

indemnification and defense for only the portion of the distributor’s defense

concerning the sale or alleged sale of that specific manufacturer’s product, or

must the manufacturer indemnify and defend the distributor against all claims

and then seek contribution from the remaining manufacturers?

Burden v. Johnson & Johnson Med. , 447 F.3d 371, 375 (5th

Cir. 2006). In Ansell Healthcare Products, Inc. v. Owens & Minor,

Inc. , the court of appeals concluded that the Section 82.002 indemnity duty

is not fulfilled by a manufacturer’s “offer to defend” only its own products.

189 S.W.3d 889 , 896–98 (Tex. App.—Texarkana 2006, pet. filed). We disagree.

Section 82.002 does not require a manufacturer to indemnify a distributor

against claims involving products other manufacturers released into the stream

of commerce. Therefore, a manufacturer that offers to defend or indemnify a

distributor for claims relating only to the sale or alleged sale of that

specific manufacturer’s product fulfills its obligation under Section

82.002.

I

Owens & Minor, Inc. and Owens & Minor Medical, Inc. (Owens,

collectively) distributed latex gloves manufactured by other companies. In

January 2000, Kathy Burden and members of her family filed a products liability

action in Texas state court. The plaintiffs alleged that

Burden had developed a Type I systemic allergy from defective latex gloves

manufactured and sold by Owens, Ansell Healthcare Products, Inc., Becton,

Dickinson and Company, and more than thirty other manufacturers and sellers of

latex gloves. It is undisputed that Owens was an innocent seller in the chain of

distribution of these products and that Ansell and Becton manufacture latex

gloves.

Owens rejected offers of defense and indemnity from both Ansell and

Becton and chose instead to hire outside counsel. In March 2000, Owens requested

that Ansell, Becton, and eleven other latex glove manufacturers defend it

pursuant to Section 82.002 of the Texas Civil Practice and Remedies Code. Ansell responded with an offer to defend Owens. The

offer limited Ansell’s defense to gloves it manufactured, and Owens rejected it.

Becton had made a similar offer to defend Owens in a latex glove case in July

1995. The offer said that Becton would “defend, indemnify and hold harmless”

Owens against claims involving gloves it manufactured until it was

determined that the plaintiff was not exposed to its gloves. Owens likewise

declined Becton’s offer. Four years later, Becton made a second offer to “defend

and indemnify” Owens in all latex glove cases on the same terms as the original

offer. But Owens again rejected Becton’s offer.

On May 3, 2000, the underlying case was removed to the United States

District Court for the Southern District of Texas, which transferred the case to

the United States District Court for the Eastern District of Pennsylvania as

part of a broader multi-district litigation process. Because the plaintiffs were

unable to show that Owens sold any of the latex gloves that allegedly injured

Burden, they nonsuited their claims against Owens. The case was then returned to

the original federal district court in Texas, and thereafter the plaintiffs

voluntarily dismissed the case against all defendants for the same or similar

reasons. No court found any party acted negligently or caused Burden’s alleged

injuries. Owens filed cross-claims for indemnity against Ansell, Becton, Johnson

& Johnson Medical, Inc., and Smith & Nephew, Inc. Owens eventually

settled with Johnson & Johnson and Smith & Newphew , but it did not settle with Ansell or Becton. Ansell

and Becton moved for summary judgment on the adequacy of their offers to defend

and indemnify Owens. The district court granted the motion and terminated the

case, holding that Ansell and Becton had satisfied the Section 82.002

requirements when they offered to defend Owens against all claims involving

their own products. Burden v. Johnson & Johnson Med.,

Inc. , 332 F. Supp. 2d 1023, 1029 (S.D. Tex. 2004). Owens appealed to

the United States Court of Appeals for the Fifth Circuit, which in turn

certified to this Court the question before us. Burden, 447 F.3d at 375 .

Analysis

Our focus when construing a statute is the intent of the Legislature.

City of LaPorte v. Barfield , 898 S.W.2d 288, 292

(Tex.

1995). To give effect to the Legislature’s intent, we rely on “the plain

and common meaning of the statute’s words.” Liberty Mut . Ins. Co. v. Garrison Contractors, Inc. , 966 S.W.2d 482, 484 (Tex.

1998). “[I]t is a fair assumption that the Legislature tries

to say what it means, and therefore the words it chooses should be the surest

guide to legislative intent.” Fitzgerald v. Advanced Spine Sys., Inc. , 996 S.W.2d 864, 866 (Tex. 1999).

At common law, a seller was not entitled

to indemnification from a manufacturer unless and until there was a judicial

finding of negligence on the part of the manufacturer. Humana Hosp. Corp. v. Am. Med. Sys., Inc. , 785 S.W.2d 144,

145 (Tex.

1990). In 1993, the Texas Legislature supplemented the common law

by enacting Section 82.002, [1] which allows an innocent seller to seek

indemnification from the manufacturer of an allegedly defective product. Act of Feb. 23, 1993, 73d Leg., R.S., ch .

5, § 1, 1993 Tex. Gen. Laws 13 , 13; Tex. Civ. Prac. & Rem. Code § 82.002(a); see also Fitzgerald , 996 S.W.2d at

866 (“The duty [to indemnify] is a new, distinct statutory duty . . . .”).

Thus, under Section 82.002, the manufacturer is now liable to the seller

regardless of how the injury action is resolved. § 82.002(e )( 1). The manufacturer’s duty begins when it is given notice

that a seller has been sued. See Meritor Auto., Inc. v. Ruan Leasing Co. , 44 S.W.3d 86, 89 (Tex. 2001) (stating that

the plaintiff’s pleadings are sufficient to invoke the manufacturer’s duty under

Section 82.002).

Owens argues that Section 82.002 requires manufacturers to indemnify and

hold harmless innocent sellers from all losses arising out of a products

liability action. Owens thus contends that it may impose liability upon any

manufacturer for Owens’s costs in defending a products liability action, even

one that did not make the product. Owens argues that once this indemnity

liability is placed on a manufacturer, it then falls to the manufacturer to seek

contribution from other responsible parties. Ansell and Becton, on the other

hand, contend that Section 82.002 requires a manufacturer to indemnify a seller

only for claims related to the sale of that manufacturer’s product.

Owens points to our decisions in Fitzgerald v. Advanced Spine Systems,

Inc. , 996 S.W.2d 864 , and Meritor Automotive, Inc. v. Ruan Leasing Co. , 44

S.W.3d 86 , as supporting its position that a manufacturer’s Section

82.002 obligation is not limited to defense or indemnification costs with

respect to its own products alone. In Fitzgerald , the issue was whether

manufacturers owe indemnification under Section 82.002 to sellers who are not in

the chain of distribution. 996 S.W.2d at 865 . We held

that the statute requires manufacturers to

indemnify a seller even if the seller did not sell the manufacturer’s product.

Id.

at 869. In Meritor , we again refused to limit the

indemnity obligation by holding that Section 82.002(a)’s exception to a

manufacturer’s general indemnity obligation is established only by a finding

that a seller’s independent conduct caused the plaintiff’s injury. 44 S.W.3d at 88–91. Until such a finding is made, a mere

allegation of negligence in the plaintiff’s pleadings is sufficient to invoke

the manufacturer’s duty to indemnify the seller for all theories properly joined

to a products liability claim. Id.

But our holdings in Fitzgerald and Meritor do little to

support Owens’s interpretation of Section 82.002. First, whereas Fitzgerald

involved the issue of to whom a manufacturer owes indemnification, 996

S.W.2d at 865 , this case concerns the scope of that duty of indemnification.

Second, we held in Meritor that “the manufacturer’s duty to

indemnify the seller is invoked by the plaintiff’s pleadings and joinder of the seller as defendant.” 44 S.W.3d at 91 ; see

also Gen. Motors Corp. v. Hudiburg Chevrolet, Inc. , 199 S.W.3d 249, 256

(Tex. 2006)

(“The duty to indemnify is triggered by the injured claimant’s pleadings.”).

Citing Meritor , Owens argues that the plaintiffs’ broad,

industry-wide allegations in their pleadings triggered an independent duty of

indemnification by each of the companies that manufacture the latex gloves sold

by Owens. But, while it is correct that the claimant’s petition triggers each

manufacturer’s duty to indemnify an innocent seller under Section 82.002, the

petition does not define the scope of that duty. Rather, to determine the scope

of the duty, we must turn to the text of the statute itself.

The essence of Owens’s argument is that, because Section 82.002(a)

requires a manufacturer to hold an innocent seller “harmless,” Ansell’s and

Becton’s respective offers to defend and indemnify Owens only for claims against

products each released into the stream of commerce did not go far enough.

Instead, Owens contends that a manufacturer must indemnify a seller for all

costs related to the entire products liability action. The only exception listed

in the statute, Owens points out, is for “any loss caused by the seller’s

negligence, intentional misconduct, or other act or omission” resulting in the

seller’s independent liability. Owens correctly recognizes that the lone

exception does not apply to this case.

But it is unmistakable that the duty under Section 82.002 is premised on

a nexus between a given manufacturer and its product. This nexus is inherent in

the statute that requires a “manufacturer” to hold a seller harmless against

loss arising out of a products liability action. Tex. Civ. Prac. & Rem.

Code § 82.002(a).

Section 82.001(4) defines the term “manufacturer” for purposes of chapter 82 as

“a person who is a designer, formulator, constructor, rebuilder, fabricator,

producer, compounder, processor, or assembler of any product or any component

part thereof and who places the product or any component thereof in the stream

of commerce.” Id. §

82.001(4). Thus, Ansell and Becton can be “manufacturers” under Section

82.002 only with respect to their own products. [2]

On at least two prior occasions, we have implied that requiring a

manufacturer to defend or indemnify a seller against claims related to the

products of its competitors is an absurd result that cannot have been the intent

of the Legislature. First, we touched on this issue in Fitzgerald when

responding to the dissent:

The

dissenting opinion contends that a literal reading of the statute would permit a

seller to obtain indemnity from “every other manufacturer sued,” not just the

manufacturer whose product the seller sold. Our construction of the plain

language of section 82.002(a) must avoid absurd results if the language will

allow.

996 S.W.2d at 867 . However, because the plaintiff in

Fitzgerald did not sue multiple manufacturers, the Court did not reach

the issue. Id.

at 865, 867. Second, Hudiburg concerned the statutory duty of

a component-part manufacturer to indemnify a seller. 199

S.W.3d at 253–54. In our decision construing the manufacturer’s duty to

indemnify under Section 82.002, we stated that “the claimant’s pleadings must

fairly allege a defect in the component itself, not merely a defect in the

seller’s product of which the component was part.” Id.

at 257. While this case does not involve the duty of a manufacturer

of component parts, the principle we applied in Hudiburg remains the

same. There is no substantive difference between the position of the

component-part manufacturer in Hudiburg and the position of Ansell and

Becton in this case. In either case, the pleadings must properly allege that the

named defendant is a manufacturer of the product under the statutory definition

to establish a nexus between the defendant manufacturer and the product, and

thus trigger the protection of the statute. In both instances, it would be

contrary to the Legislature’s intent to require a defendant to indemnify a

seller for claims regarding products the defendant never manufactured.

At common law, the manufacturer was required to indemnify the seller only

for claims involving defects in its own products. See Restatement (Third) of Torts: Apportionment of

Liability § 22 cmt . c, illus. 1 (2000) (stating

that, where no contractual indemnity exists, the seller of a defective product

is not entitled to indemnity from the manufacturer if the seller is unable to

prove that the manufacturer placed the defective product into the stream of

commerce and therefore would itself have been liable to the injured third

party). The rationale behind the common law concept of indemnification is that a

party exposed to liability solely due to the wrongful act of another should be

permitted to recover from the wrongdoer. In other words, the theory is that

“[e] veryone is deemed responsible for the consequences

of his or her own acts.” Muldowney v. Weatherking Prods., Inc. , 509 A.2d 441, 443 (R.I.

1986). Accordingly, a wide array of courts have held that, absent

statutory language or an indemnification contract to the contrary, an innocent

seller can recover its attorney’s fees under the common law from a manufacturer

only if the manufacturer

“ was or would have been liable in the products liability suit.” [3] While these cases dealt specifically with

the manufacturer’s liability for attorney’s fees incurred by the supplier in

defending claims involving the manufacturer’s products, the concept is equally

applicable to other fees and costs incurred by the seller in defending such

claims. Thus, courts have concluded that the manufacturer is liable for the

supplier’s legal expenses in defending strict liability and negligence claims

only when the supplier occupied a place in the stream of commerce between the

manufacturer and the injured third party. See,

e.g. , Palmer v. Hobart Corp. , 849 S.W.2d 135, 144 (Mo. Ct. App. 1993)

(citing Hanover Ltd. , 758 P.2d at 447). In this case, however,

Owens asserts a right to indemnity under Section 82.002 from Ansell and Becton

for liability it incurred as a result of its place in the stream of commerce

between other manufacturers and the injured third party.

In the absence of language indicating that the Legislature intended for

one manufacturer to hold an innocent seller harmless for losses caused by

products made by another manufacturer, we decline to assign such broad

liability. Doing so would lead to absurdities and inequities the Legislature

certainly did not intend. See C & H Nationwide, Inc. v. Thompson , 903

S.W.2d 315 , 322 n.5 (Tex. 1994) (“Statutory provisions will not be so construed

or interpreted as to lead to absurd conclusions . . . if the provision is

subject to another, more reasonable construction or interpretation.”).

For example, Owens’s interpretation of the scope of Section 82.002’s duty to

indemnify could result in manufacturers such as Ansell and Becton being placed

in the awkward, if not impossible, position of defending someone else for

injuries caused by products they did not make. It is one thing to have to defend

a seller who has marketed your product and whose defense would therefore mirror

your own. But it is quite another to have to defend a seller who marketed your

competitors’ products rather than your own, and on top of that try to defend

that seller against allegations that your competitors’ products were defective

in manufacture or marketing. While the seller’s interest might be served in

either case, it is clearly not in the competing manufacturer’s interest that one

of its rivals is handed the task of defending its product. It is highly

unlikely, for example, that a competing manufacturer would be willing to share

its intellectual property with the indemnifying manufacturer, but absent that

discovery, the defense of the seller might be problematic. Moreover, a

manufacturer’s ability to insure its indemnity obligation would be extremely

impaired if its potential exposure was linked to some

other manufacturer’s product. For these reasons, a manufacturer’s indemnity

obligation only makes sense when its own product is implicated. While we

acknowledged in Fitzgerald that Section 82.002 gives preference to

innocent sellers, we also noted that it was designed to protect manufacturers.

996 S.W.2d at 868–69. It protects manufacturers by

“establishing uniform rules of liability” so they can “make informed business

decisions,” such as gauging exposure to liability and obtaining liability

insurance. Id.

In 1967, our decision in McKisson v. Sales Affiliates, Inc. established

a party’s strict liability for manufacturing or selling any type of defective

product. 416 S.W.2d 787, 789 (Tex. 1967). As Owens points out,

Section 82.002 was designed to remedy the fundamental unfairness inherent in a

scheme that holds an innocent seller liable for defective products manufactured

by another by requiring the manufacturer to indemnify the seller unless the

seller is independently liable for negligence, intentional misconduct, or any

other act or omission. Tex. Civ. Prac.

& Rem. Code §

82.002(a). Yet Owens argues that limiting the

manufacturer’s obligation under Section 82.002(a) to products the manufacturer

placed in the stream of commerce returns the seller to an unfair position by

requiring it to defend claims relating to another company’s products if that

company refuses to provide a defense. In this sense, Owens contends, an innocent

seller may be left in the same disadvantaged position Ansell and Becton seek to

avoid (i.e., defending a product it did not manufacture). Because we recognized

in Fitzgerald that Section 82.002 was designed to protect innocent

sellers above all, see 996 S.W.2d at 869 , Owens argues its formulation of

Section 82.002 should prevail.

But Owens’s argument is unconvincing for three reasons. First, the

Legislature’s intent that an innocent seller be held harmless is satisfied under

Ansell’s and Becton’s construction of Section 82.002 because a manufacturer

would either defend against claims relating to its own products or would later

indemnify the seller. § 82.002(a). To invoke the manufacturer’s obligation under

Section 82.002(a), the seller must pursue

its rights under the statute from each manufacturer by giving “reasonable notice

to the manufacturer.” Id. §

82.002(f). Should the seller be faced

with a recalcitrant manufacturer, it is entitled to recover its costs incurred

enforcing its indemnity rights. Id. §

82.002(g). [4] Second, in the event a seller ends up

defending a manufacturer’s products itself and thereafter seeks indemnity from

the manufacturer, the seller’s position is more favorable than that of the

manufacturer forced to defend products produced by a competing manufacturer. In

the former scenario, the seller, by virtue of its intermediary position in the

stream of commerce, has a business relationship with the manufacturer of the

product it sells. It stands to reason that such a pre-existing business

relationship is more likely to facilitate the sharing of proprietary information

that is necessary for a thorough products liability defense. Finally, we find

useful the Utah Supreme Court’s analysis in deciding an indemnification case

involving two innocent parties. In Bettilyon

Construction Co. v. State Road Commission , a road contractor sued the State

Road Commission of Utah to recover legal expenses the contractor had incurred in

connection with its successful defense of a lawsuit brought against it by a

property owner whose land abutted a road construction project. 437 P.2d 449 , 449–50 (Utah 1968). To facilitate the project,

the road commission had leased a right of way to the contractor.

Id.

at 449. The property owner alleged the right of way encroached on his

property. Id. In holding that the contractor was

not entitled to common law or contractual indemnity from the road commission for

its legal expenses, the Utah Supreme Court reasoned:

One

of the hazards of life which everyone is exposed to is the possibility of being

required to defend a lawsuit. . . . But the fact that the party charged may be

innocent of the claimed wrong and can successfully defend against such a suit

does not entitle him to pass the burden on the [sic] some equally innocent third

party.

Id. at

450. Here, as well, there is no basis for extending Ansell’s and Becton’s

obligations under Section 82.002 to claims involving another manufacturer’s

products.

Owens argues that interpreting Section

82.002 in this manner reverts to the common law by reinserting a “chain of

distribution” requirement. But we conclude that the Legislature never altered

this portion of the common law. [5] The Legislature specifically incorporated

that requirement into the statute by defining a manufacturer as a person who

“places the product or any component part thereof in the stream of

commerce .” Tex. Civ. Prac. & Rem. Code §

82.001(4). If the Legislature intended to change the common

law by establishing liability for another manufacturer’s product, it would have

done so expressly. [6]

Conclusion

The Fifth Circuit asks whether a manufacturer can fulfill its indemnity

obligations under Section 82.002 when the manufacturer offered to indemnify and

defend an innocent seller only for claims related to the sale of products the

manufacturer released into the stream of commerce. We conclude that the statute

does not extend a manufacturer’s obligations under Section 82.002 to claims

related to the sale of other manufacturers’ products. When an innocent seller is

forced to defend itself in a products liability action, its remedy under the

statute is to seek indemnity from the product manufacturer. But where the

plaintiff has sued multiple manufacturers, the statute does not authorize a

seller to simply select one or more manufacturers and thereby obligate the

chosen manufacturers to fully indemnify the seller’s costs regardless of whether

any connection to the product at issue exists. Rather, the product manufacturers

satisfy their statutory duty to the seller by offering to indemnify and defend

it only for any costs associated with their own products. And if, as in this

case, there is no finding as to which manufacturer, if any, is liable for the

plaintiff’s injury, the innocent seller, like an innocent manufacturer, must

assume responsibility for recovering the costs of its own defense. Our

interpretation of the scope of a manufacturer’s obligation under Section 82.002

comports with the Legislature’s intent, as indicated by the plain language of

the statute, the policy behind it, and its practical application. Accordingly,

Ansell and Becton are not required to indemnify and defend Owens against all

claims relating to all products.

___________________________

PAUL W. GREEN

JUSTICE

OPINION DELIVERED: March 28,

2008

[1]

Section 82.002 provides:

(a) A manufacturer shall indemnify and hold harmless a

seller against loss arising out of a products liability action, except for any

loss caused by the seller’s negligence, intentional misconduct, or other act or

omission, such as negligently modifying or altering the product, for which the

seller is independently liable.

(b) For purposes of this section, “loss” includes

court costs and other reasonable expenses, reasonable attorney fees, and any

reasonable damages.

(c) Damages awarded by the trier of fact shall, on final judgment, be deemed reasonable

for purposes of this section.

(d) For purposes of this section, a wholesale

distributor or retail seller who completely or partially assembles a product in

accordance with the manufacturer’s instructions shall be considered a

seller.

(e) The duty to indemnify under this section:

(1) applies without regard to

the manner in which the action is concluded; and

(2) is in addition to any duty

to indemnify established by law, contract, or otherwise.

(f) A seller eligible for indemnification under this

section shall give reasonable notice to the manufacturer of a product claimed in

a petition or complaint to be defective, unless the manufacturer has been served

as a party or otherwise has actual notice of the action.

(g) A seller is entitled to recover from the

manufacturer court costs and other reasonable expenses, reasonable attorney

fees, and any reasonable damages incurred by the seller to enforce the seller’s

right to indemnification under this section.

Tex. Civ. Prac. & Rem. Code §

82.002.

[2]

The plaintiffs in this case alleged that Ms. Burden’s allergic reaction was

caused by the latex protein inherent in all rubber latex gloves, but the

manufacturers argued during discovery that not all latex gloves contain equal

amounts of latex protein. Owens contends that the plaintiffs’ petition merely

alleged that latex gloves are defective and did not segregate any manufacturer’s

product from any other, but it does not deny that different manufacturers

produce gloves containing different amounts of latex protein. However,

regardless of whether one manufacturer’s gloves are distinguishable from the

gloves of another, for the reasons stated herein, we do not construe Section

82.002 to require a manufacturer to indemnify a seller for claims relating to

products it did not produce.

[3]

1 Robert L. Rossi, Attorney’s Fees § 8:4 (3d ed. & Supp. 2006)

(citing Safeway Rental & Sales Co. v. Albina

Engine & Mach. Works, Inc. , 343 F.2d 129 (10th Cir. 1965); Merck

& Co. v. Knox Glass, Inc. , 328 F. Supp. 374 , 376–78 (E.D. Pa. 1971);

D.G. Shelter Prods. Co. v. Moduline Indus., Inc. , 684

P.2d 839, 841 (Alaska 1984); Trails Trucking, Inc. v.

Bendix -Westinghouse Auto. Air

Brake Co. , 108 Cal. Rptr . 30, 34

(Cal. Ct. App. 1973); Maple Chair Co. v. W. S. Badcock Corp. , 385

So. 2d 1036, 1038 (Fla. Dist. Ct. App.

1980); Rauch v. Senecal , 112 N.W.2d 886, 888

(Iowa 1962);

Cent. Motor Parts Corp. v. E.I. duPont de Nemours & Co. , 596 A.2d 759 , 761–62 (N.J. Super.

Ct. App. Div. 1991); Krasny -Kaplan Corp. v.

Flo- Tork , Inc. , 609 N.E.2d 152, 154 (Ohio 1993);

Kamyr , Inc. v. Boise Cascade Corp. , 519

P.2d 1031 , 1032–34 (Or. 1974); Hanover Ltd. v. Cessna Aircraft Co. , 758

P.2d 443, 448 (Utah Ct. App. 1988); Thomas Malia ,

Annotation, Attorneys Fees in Products Liability , 53 A.L.R. 4 th 414 § 19 (1987)).

[4]

The dissent claims that in cases such as this, where no determination was made

as to which product was at fault, the Legislature intended for the

manufacturers, not the seller, to bear the burden of determining how the parties

should distribute the costs of providing the seller with indemnity. ___ S.W.3d at ___. But Section 82.002(g) specifically

entitles the seller to recover costs incurred in enforcing his indemnity rights.

If, as the dissent maintains, the burden should fall to a manufacturer to seek

contribution from other manufacturers, then Section 82.002(g) would have

provided that manufacturers as well as sellers could recover such

costs.

[5]

The dissent suggests that today’s holding

results in the Court reading the phrase “ plac [ es ] [the] product . . . in the stream of commerce”

differently in the definitions of manufacturer and seller. ___

S.W.3d at ___. In Fitzgerald , we held that Section 82.002 does not

require a seller to be proven to have been in the chain of distribution for the

product at issue. 996 S.W.2d at 867 . But the

question in this case is not whether the seller stood in the chain of

distribution. Instead, our decision in this case concerns only the legal

question of whether a manufacturer’s defense or indemnity obligation in Section

82.002 extends beyond its own products.

[6]

The dissent asserts that our holding “creates an exception to the indemnity

obligation that does not exist in the text.” ___S.W.3d at

___. We disagree. We merely recognize the scope of indemnity obligation

imposed by the Legislature. Under the statute, an innocent seller is guaranteed

indemnity from any person who qualifies as a manufacturer under Section

82.001(4). Naming a party as a manufacturer in a lawsuit does not automatically

trigger an unlimited indemnity obligation under Section 82.002. A party’s

indemnity obligation is limited by the definition of manufacturer, which relates

specifically to a person’s own products that have been placed in the stream of

commerce.