Horace Garland ; Martha Garland v. Tennessee Valley Authority

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0225P (6th Cir.)
File Name: 03a0225p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
No. 02-5096
HORACE GARLAND ; M ARTHA
GARLAND ,
Plaintiffs,
TRIANGLE ENTERPRISES, I NC .,
Third-Party
Defendant-Appellant,
v.
TENNESSEE VALLEY
AUTHORITY ,
Defendant/Third-Party
Plaintiff-Appellee.
No. 02-5097
J. PAUL CARNEAL ; M ARY
CARNEAL ,
Plaintiffs,
TENNESSEE VALLEY
AUTHORITY ,
Third-Party
Defendant-Appellee,
BADHAM I NSULATION
COMPANY ; BRAUER SUPPLY
COMPANY ,
Defendants,
X---->
,-----------------------
Nos. 02-5096/
5097/5098/5216
2 Garland, et al. v. Triangle
Enterprises, et al.
Nos. 02-5096/5097/
5098/5216
v.
TRIANGLE ENTERPRISES, I NC .,
Defendant/Third-Party
Plaintiff-Appellant,
OWENS CORNING FIBERGLAS
CORPORATION ,
Defendant.
No. 02-5098
FRANCES DEE HALL ,
individually and as Executrix
of the Estate of Burl R. Hall,
Plaintiff,
v.
OWENS CORNING FIBERGLAS
CORPORATION , et al.,
Defendants,
TRIANGLE ENTERPRISES, I NC .,
Defendant/Third-Party
Plaintiff-Appellant,
v.
TENNESSEE VALLEY
AUTHORITY ,
Third-Party
Defendant-Appellee.
No. 02-5216
RONNIE D. BEAN ,
Plaintiff,
TRIANGLE ENTERPRISES, I NC .,
Defendant/Third-Party
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Nos. 02-5096/5097/
5098/5216
Garland, et al. v. Triangle
Enterprises, et al.
3
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
Plaintiff-Appellant,
v.
OWENS CORNING FIBERGLAS
CORPORATION ,
Defendant,
TENNESSEE VALLEY
AUTHORITY ,
Third-Party
Defendant-Appellee.
----------
N
Appeal from the United States District Courts
for the Western District of Kentucky
at Paducah and Owensboro.
Nos. 01-00260; 01-00254; 01-00191; 01-00249—
Thomas B. Russell; Joseph H. McKinley, Jr.;
Edward H. Johnstone, District Judges.
Argued: June 10, 2003
Decided and Filed: July 9, 2003
Before: MOORE and GIBBONS, Circuit Judges;
SCHWARZER, Senior District Judge. *
_________________
COUNSEL
ARGUED: Kathy P. Holder, FROST, BROWN & TODD,
Louisville, Kentucky, for Appellant. Edwin W. Small,
TENNESSEE VALLEY AUTHORITY, Knoxville,
4 Garland, et al. v. Triangle
Enterprises, et al.
Nos. 02-5096/5097/
5098/5216
Tennessee, for Appellee. ON BRIEF: Kathy P. Holder,
Joseph B. Myers, Jr., Robert L. Steinmetz, FROST, BROWN
& TODD, Louisville, Kentucky, for Appellant. Edwin W.
Small, Thomas A. Robins, TENNESSEE VALLEY
AUTHORITY, Knoxville, Tennessee, for Appellee.
_________________
OPINION
_________________
WILLIAM W SCHWARZER, Senior District Judge.
Third-party Triangle Enterprises, Inc. (“Triangle”) appeals
from the dismissal of its third-party complaints for indemnity
against third-party defendant Tennessee Valley Authority
(“TVA”). In the four underlying cases, consolidated on
appeal, the plaintiffs asserted that they were injured as a
result of exposure to asbestos and alleged claims for damages
based on strict liability, negligence, and breach of implied
warranty. Their complaints alleged, in substance, that
Triangle was negligent in removing and installing asbestos-
containing products and failing to protect workers against
asbestos exposure. In addition, the Garland complaint alleged
failure to warn workers and to follow guidelines for safe
handling of asbestos. Triangle filed third-party complaints
against TVA for apportionment of fault based on allegations
that TVA distributed and installed asbestos products at the
work site. In its amended third-party complaints, Triangle
further sought indemnity, alleging that TVA was negligent in
failing to provide a safe place of employment and safeguards
necessary to protect its employees, that any negligence on
Triangle’s part was secondary and passive, and that the active
and primary negligence was TVA’s.
TVA moved to dismiss the third-party complaints pursuant
to Rule12(b)(6) and the district courts granted the motions.
Fed. R. Civ. P. 12(b)(6). They held that if there is proof of
fault on the part of TVA, an apportionment instruction is

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Nos. 02-5096/5097/
5098/5216
Garland, et al. v. Triangle
Enterprises, et al.
5
appropriate. An indemnity claim, however, was not available
because wrongful acts of TVA, if any, will not expose
Triangle to liability. It is only the wrongful acts of Triangle
which will expose it to liability. This appeal followed. The
district courts had jurisdiction under 28 U.S.C. § 1442(a)(1),
and we have jurisdiction of the appeal under 28 U.S.C.
§ 1291. Because we find the record to be insufficient at this
stage to determine whether Triangle may be entitled to
indemnity, we vacate the judgments and remand for further
proceedings.
DISCUSSION
Kentucky law recognizes indemnity claims between
tortfeasors. The leading case of Brown Hotel Co. v.
Pittsburgh Fuel Co., 224 S.W.2d 165 (1949), states:
Where one of two parties does an act or creates a hazard
and the other, while not concurrently joining in the act,
is, nevertheless, thereby exposed to liability to the person
injured, or was only technically or constructively at fault,
as from the failure to perform some legal duty of
inspection and remedying the hazard, the party who was
the active wrongdoer or primarily negligent can be
compelled to make good to the other any loss he
sustained.
224 S.W.2d at 167. The Kentucky Supreme Court only
recently reaffirmed the Brown Hotel principle in Degener v.
Hall Contracting Corp., 27 S.W.3d 775, 780 (2000), holding
that the right to indemnity is available “where both parties
have been at fault, but not in the same fault, towards the party
injured, and the fault of the party from whom indemnity is
claimed was the primary and efficient cause of the injury”
(quoting Louisville Ry. Co. v. Louisville Taxicab & Transfer
Co., 77 S.W.2d 36, 39 (1934)).
6 Garland, et al. v. Triangle
Enterprises, et al.
Nos. 02-5096/5097/
5098/5216
The pleadings disclose that Triangle is an independent
contractor who installed and tore out asbestos products on the
premises of power plants in Kentucky owned and operated
by the TVA. TVA is alleged to have provided asbestos-
containing products and to have failed to furnish a safe
workplace and to take proper precautions. The four plaintiffs
who worked at those power plants allegedly contracted
asbestos-related diseases as a result of their occupational
exposure to asbestos at the TVA worksite.
A complaint may not be dismissed for failure to state a
claim “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The skeletal pleadings, which constitute the entire
record before us, do not enable us to determine as a matter of
law that Triangle could not establish that TVA’s fault, if any,
was “the primary and efficient cause of the injury.” Thus, we
cannot say, based on the current state of the pleadings, that
Triangle can prove no set of facts entitling it to indemnity.
CONCLUSION
For the reasons stated, we VACATE the judgments below
and, without passing on the merits, REMAND for further
proceedings consistent with this decision.

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