Collapsed Foot Stool Raises Indemnity And Defense Issues

July 1, 2004

Guy R. Gruppie, Tina D. Varjian and Robert R. Clayton successfully obtained a motion for summary judgment on behalf of 99 Cents Only Stores.

Plaintiff, a 76 year-old woman, purchased a foot stool from a 99 Cents Only Store and alleged that it collapsed while she was making coffee. The footstool was manufactured and then sold to 99 Cents Only Stores by another company pursuant to a purchase order. The purchase order provided that the manufacturer was required to defend and indemnify 99 Cents Only Stores for any claims arising out of the use of the footstool.

When the plaintiff sued 99 Cents Only Stores, the company tendered its defense to the manufacturer of the footstool. The manufacturer refused to indemnify and defend claiming that 99 Cents Only Stores, among other things, did not follow the manufacturer's internal protocol for tendering the defense. The manufacturer claimed that 99 Cents Only Stores was at fault for failing to warn customers that the footstool was suitable for children only. The defense filed a motion for summary judgment on the manufacturer's cross-complaint for equitable indemnity and a motion for summary adjudication on its own cross-complaint against the manufacturer for causes of action for breach of contract, express indemnity and equitable indemnity. The motion was filed on the grounds that the manufacturer expressly agreed pursuant to the terms of the purchase order to defend and indemnify 99 Cents Only Stores for actions involving its product.

The court granted the motion for summary adjudication finding that the purchase order was clear and unambiguous and that the manufacturer breached its contractual duty to defend and was expressly obligated to indemnify 99 Cents Only Stores.