Justice Scott Brister's Concurring Opinion
Ownes & Minor, Inc. v. Ansell Healthcare Products, Inc., No. 06-0322 (Tex. Mar 28,
2008) (
Majority Opinion by Justice Green)

(product liability, indemnification for litigation costs) (cert. question from U.S. Court of Appeals for the 5th Cir.)

motion to consolidate denied
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Green delivered the opinion of the Court [pdf file], in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, and Justice Brister joined.
Brister delivered a concurring opinion [pdf file].
O'Neill delivered a dissenting opinion [pdf file], in which Justice Medina, Justice Johnson, and Justice Willett





Argued October 19, 2006

     Justice Brister, concurring.

     The two opinions here appear to be ships passing in the night — each assuming the other means something it
does not actually say. I write separately to indicate what I believe is common ground.

     First, the dissent is correct that statutory indemnity is triggered by a plaintiff’s pleadings, not actual proof. We
recently said as much in a unanimous opinion,[1] and the Court says so explicitly again today.[2] Thus, a retailer is
not required to prove that a defendant’s product caused the plaintiff’s injury (and thus its own defense costs), only
that a plaintiff’s allegation about the defendant’s product did so. It is unclear why the dissent thinks this is an
“impossible burden.”

     Second, I agree with the Court that a manufacturer’s statutory duty of indemnity is limited to its own products. A
nexus between the plaintiff’s pleadings and the defendant’s product is required not due to common law, but to
common sense. Nothing in the statute suggests a retailer can get indemnity from A and B for costs incurred in
defending products made by X, Y, and Z; as we recently noted in Hudiburg, a truck seller cannot claim indemnity
from a hubcap manufacturer if nothing in the pleadings suggests the hubcaps were defective. Only one conclusion
can follow from this: defendants defend their own products, not somebody else’s. If the dissent truly believes that no
nexus is necessary, nothing would prevent the retailer here from suing General Motors or Gucci for indemnity. Of
course, the plaintiff never alleged Gucci made the latex gloves she used, but a plaintiff’s pleadings need not name
a particular manufacturer for indemnity to follow.[3]

     Burden’s pleadings here were industry-wide and very general, but they cannot be fairly read to allege that
Ansell or Becton made any latex gloves except their own. Making them provide indemnity for other gloves would
make them indemnify a claim the plaintiff never made. That is beyond what the statute requires.[4]

     The retailer here admits as much in its brief, conceding that if Burden dropped her claims against Ansell and
Becton, then they would have no duty to defend Owens & Minor any longer.[5] The same would be true when a
manufacturer is dismissed on special exceptions or summary judgment — if the plaintiff no longer has a pending
claim against a product, its manufacturer cannot be liable for any further indemnity.

     We did not hold in Meritor that manufacturers must indemnify retailers regardless of the circumstances or the
pleadings.[6] Although we held manufacturers must cover defense costs relating to a retailer’s own negligence, that
was because statutory indemnity covers “loss arising out of a products liability action” and excludes only “loss
caused by the seller’s negligence.”[7] A claim based on a retailer’s independent culpability arises in a plaintiff’s
pleadings but does not cause loss until there is a judgment to that effect.[8] By contrast, no claim that Ansell and
Becton made gloves for other manufacturers ever arose in this case.

     The dissent is also correct that the statute gives innocent retailers broad protection, and the Court’s opinion
could spell out more clearly why that will still be the case. As we recently noted in Tony Gullo Motors v. Chapa,
when a case involves multiple claims, “many if not most legal fees in such cases cannot and need not be precisely
allocated to one claim or the other”:

Many of the services involved in preparing [one] claim for trial must still be incurred if [other] claims are appended
to it; adding the latter claims does not render the former services unrecoverable. Requests for standard
disclosures, proof of background facts, depositions of the primary actors, discovery motions and hearings, voir dire
of the jury, and a host of other services may be necessary whether a claim is filed alone or with others. To the
extent such services would have been incurred on a recoverable claim alone, they are not disallowed simply
because they do double service.[9]

     Here, no one disputes that if Burden had alleged injuries solely from Ansell’s gloves, it would have been
responsible for 100 per cent indemnity. Nothing in the statute suggests this responsibility dropped to 50 per cent
when Burden added another manufacturer; Ansell still had to pay for sending and responding to standard
disclosures, producing documents, deposing the plaintiff, and attending MDL hearings in Pennsylvania. In most
toxic tort cases, the costs incurred solely because of an added defendant are marginal, and it is those alone that
Ansell would not have to pay.      Thus, I disagree with the dissent that the Court’s opinion places “an impossible
burden” on innocent retailers; they are still entitled to every dime incurred as if the manufacturer from whom they
seek indemnity had been the only one sued — which in most cases will be most of the dimes. If several
manufacturers have become insolvent (as appears to be the case here), an innocent retailer is not required to
squeeze indemnity from those turnips; rational litigants rarely spend much money pursuing penniless defendants,
so an innocent retailer can still recover almost all its costs from the manufacturers the plaintiff actually pursues. And
as Burden’s pleadings against Ansell and Becton remained viable until she nonsuited her case, their duty to
indemnify continued until that date.

     I disagree with Becton’s argument that the statute requires an innocent retailer to pursue indemnity from each
and every manufacturer, rather than picking one or a few. The statute says nothing about how many manufacturers
a retailer must sue for indemnity, or about limiting indemnity pro rata. When legal work has to be done whether
there are 1 or 100 defendants, the one manufacturer from whom they are sought can hardly claim most of the work
was not reasonable, necessary, and due under the indemnity statute. I share Becton’s concern that an innocent
retailer might arbitrarily saddle a disfavored manufacturer with all indemnity costs, and that the dissent may (or may
not) be mistaken in assuming one manufacturer can get contribution from others. But today’s decision provides a
disincentive to such favoritism: if a retailer seeks indemnity from less than all manufacturers, it will be entitled to less
than all its costs.

     In closing, I would also mention that none of this is how the statute was intended to work. The whole idea was
that innocent retailers would not be sued at all in products cases, as the Legislature made clear in its 2003
amendments.[10] That goal is not advanced by encouraging manufacturers to refuse indemnity except for some pro
rata part of the case (as the dissent fears), or to hire duplicative attorneys for the retailer (as the dissent
advocates). As we have said many times in other mass-tort contexts, the best plan is to decide early on which
defendants are really involved, and discharge those that are not. As I believe the Court’s opinion today moves in
that direction, I join in it.


     Scott Brister




[1] 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.”).

[2] ___ S.W.3d at ___ (“[T]he 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.”).

[3] Hudiburg Chevrolet, 199 S.W.3d at 257 (“[W]e do not agree with Rawson-Koenig that a claimant’s pleadings
must actually name a manufacturer to invoke a right of indemnity under section 82.002.”).

[4] See id. (“It is one thing to give a seller indemnity for defending unproved claims that a product is defective; it
would be quite another to give a seller indemnity for defending unproved claims that were never even made.”).

[5] “Had plaintiff Burden amended her Petition to delete product claims against Ansell or [Becton], then [they] would
have no duty to defend Owens & Minor.”

[6] Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001).

[7] Tex. Civ. Prac. & Rem. Code § 82.002(a) (emphasis added).

[8] Meritor Auto., 44 S.W.3d at 91.

[9] 212 S.W.3d 299, 313 (Tex. 2006).

[10] See Tex. Civ. Prac. & Rem. Code § 82.003; Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 5.02, 2003 Tex.
Gen. Laws 847, 860 (eff. Sept. 1, 2003).