Unarco material handling

Court Description: MEMORANDUM OPINION AND ORDER: 1) Unarco's motion for summary judgment [R. 843] is GRANTED; 2) Atlas's motion for summary judgment [R. 842] is DENIED. Signed by Judge Amul R. Thapar on 7/26/2011.(RC)cc: COR Download PDF UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON ) ) ) Plaintiffs, ) Civil No. 06-548-ART ) v. ) ) MEMORANDUM OPINION UNARCO MATERIAL HANDLING, ) AND ORDER INC., et al., ) ) Defendants. ) ) v. ) ) LEXINGTON INSURANCE CO., ) ) Intervening Defendant. ) *** *** *** *** WILLIAM H. ASHER, et al., The parties have settled, the plaintiffs have received compensation, and only the defendants are left. One last question remains: Is the contractor Unarco entitled to indemnification from the subcontractor Atlas? Based on the language of the applicable agreements, the answer is yes. As a result, Unarco is now entitled to summary judgment. BACKGROUND Carbon monoxide that odorless, colorless, and toxic gas could not be seen in the Wal-Mart distribution center in London, Kentucky; the employees working in the area nonetheless felt its effects. Between November and December of 2005, a number of employees claimed that they suffered injuries after being exposed to this dangerous gas. These employees worked in and around the distribution center s freezer, which happened to be the site of on-going rack installation and repair work. Wal-Mart contracted with Unarco Material Handling, Inc., to provide and install these rack systems. Unarco, in turn, subcontracted with Atlas Material Handling, Inc., to perform the actual work. R. 843-4. And Atlas further subcontracted the work to Rack Conveyor Installation, Inc. ( RCI ). As part of this work, RCI operated at least two large generators inside the building, which emitted carbon monoxide and caused the injuries suffered by the Wal-Mart employees. The Wal-Mart employees subsequently filed suit against Unarco and Atlas. R. 1-1. Unarco then cross-claimed against Atlas seeking contractual and common law indemnity. R. 67. While Atlas and Unarco eventually settled the claims with the Wal-Mart employees i.e., the Asher plaintiffs, R. 470, R. 706 Unarco s indemnity claims against Atlas remain pending.

Annotate this Case Download PDF NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0272n.06 Nos. 09-5182 & 09-5183 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT WILLIAM HARRIS ASHER, et al., Plaintiffs, ATLAS MATERIAL HANDLING, INC., a California Corporation, Defendant/Third Party Plaintiff-Appellant, v. RACK CONVEYOR INSTALLATION, INC., Third Party Defendant-Appellee, and UNARCO MATERIAL HANDLING, INC., a Tennessee Corporation, Intervening Plaintiff/Defendant-Appellant, v. RACK CONVEYOR INSTALLATION, INC., Third Party Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) BEFORE: KENNEDY, COLE, and GRIFFIN, Circuit Judges. GRIFFIN, Circuit Judge. FILED May 03, 2010 LEONARD GREEN, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY Nos. 09-5182 & 09-5183 Asher, et al. v. Rack Conveyor Installation, Inc., et al. In this diversity action, plaintiffs, who are past and present Wal-Mart employees and their spouses, sued defendant Unarco Material Handling, Inc. ( Unarco ), and its subcontractor, defendant Atlas Material Handling, Inc. ( Atlas ), alleging injuries caused by exposure to carbon monoxide gas in the enclosed freezer section of a Wal-Mart Distribution Center during a two-week period in November and December 2005. Thereafter, Atlas filed a third-party complaint for common law indemnity or apportionment of liability against its subcontractor, Rack Conveyor Installation, Inc. ( RCI ), alleging that RCI was responsible for the release of the carbon monoxide. Unarco asserted crossclaims for contractual and/or common law indemnity

Of the injurycausing carbon monoxide at the Distribution Center, RCI was not liable to Atlas under Kentucky law because Atlas retained the right to control the work done at the location in issue and RCI s employees acted as loaned servants to Atlas[.] In so holding, the district court rejected Atlas s arguments that (1) disputed issues of material fact precluded summary judgment in RCI s favor, and (2) RCI performed the work at the Distribution Center as an independent contractor. Approximately two weeks later, the district court granted summary judgment in favor of Unarco and Atlas against certain plaintiffs (the untimely plaintiffs ) whose claims it held were barred by the applicable statute of limitations. Subsequently, Unarco and Atlas reached settlement agreements with the remaining, timely plaintiffs, and the district court dismissed the timely plaintiffs claims with prejudice pursuant to the parties January 2009 stipulations of dismissal. The untimely plaintiffs unsuccessfully appealed the district court s dismissal of their claims to this court in related case no. 09-5158. See Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir. 2010). Unarco timely appeals the district court s Rule 12(b)(6) dismissal of its crossclaims against -5- Nos. 09-5182 & 09-5183 Asher, et al. v. Rack Conveyor Installation, Inc., et al. RCI, but it stipulated during briefing and at oral argument that its present appeal should proceed only if we reversed the district court s dismissal of the untimely plaintiffs claims in case no. 09-5158. Atlas timely appeals the district