In Jack Papineau and Holly Papineau v. Brake Supply Company, Inc., et al., the Court recently granted a third-party defendant’s motion to dismiss a third-party complaint. Plaintiff Jack Papineau (“Papineau”) alleged that he developed malignant mesothelioma from exposure to asbestos from his employment at Smith Coal, and sued four defendants. After the action was filed, one defendant filed a third-party action against Rudd Equipment for common law indemnity and apportionment under K.R.S. Section 411.182. In its motion to dismiss the third-party complaint, Rudd Equipment argued that the defendant failed to allege any facts supporting a claim for indemnity against it. In its opinion, the Court held that the defendant had to demonstrate that Rudd equipment was the primary, active tortfeasor, and that the defendant was the secondary, passive tortfeasor.
The defendant put forth allegations that Papineau worked at Smith Coal, a company who purchased heavy equipment and parts from Rudd Equipment’s facility in Evansville, IN, which in the early part of Papineau’s career, would have included friction products which may have contained chrysotile asbestos as a component part. Based on this information, the defendant alleged that to the extent Papineau was ever exposed to asbestos from friction products during his work at Smith Coal, some of that exposure was to friction products, equipment, or components sold by Rudd Equipment to Smith Coal. The Court held that these allegations were devoid of any factual basis to support that Rudd Equipment was the primary, active tortfeasor, and that the defendant was the secondary, passive tortfeasor. Thus, the Court dismissed the common law indemnity claim.
Rudd Equipment further moved to dismiss the third-party complaint because K.R.S. Section 411.182 does not provide an independent cause of action for apportionment. The Court agreed with Rudd Equipment for purposes of its motion to dismiss, but also held that the defendant had asserted claims against Rudd Equipment sufficient to preserve its right to an apportionment instruction under K.R.S Section 411.182 if the evidence supported such an instruction at trial.
Nonetheless, the Court granted Rudd Equipment’s Motion to Dismiss the Third-Party Complaint.