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Neil v. Shingle Care, LLC

Superior Court of New Jersey, Appellate Division

June 14, 2013

MARTIN NEIL AND REGINA NEIL, HIS WIFE, Plaintiffs,
v.
SHINGLE CARE, LLC, Defendant, and SPOTTS, INC., Defendant-Appellant/ Cross-Respondent, and ENTERPRISE MANAGEMENT UNLIMITED OF CENTRAL FLORIDA, INC., Defendant-Respondent/ Cross-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2013

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2830-10.

Patricia M. Henrich argued the cause for appellant/cross-respondent (Reilly, Janiczek & McDevitt, P.C., attorneys; Ms. Henrich and Chrystale B. Hewitt, on the brief)

Edward L. Thornton argued the cause for respondent/cross-appellant (Methfessel & Werbel, attorneys; Mr. Thornton, of counsel; James H. Foxen, on the brief).

Before Judges Harris and Hayden.

PER CURIAM

This appeal presents the aftermath of products liability litigation. Defendant Spotts, Inc. (Spotts) —— the operator of a hardware store and garden center, and the retail seller of containers of a roof shingle cleaning solution —— appeals from the Law Division's October 12, 2012 order denying its motion for indemnification of the costs to defend itself in this action. Defendant Enterprise Management Unlimited of Central Florida, Inc. (Enterprise) —— the manufacturer of the product —— cross-appeals from a separate October 12, 2012 order denying its motion for fees and sanctions. We affirm both orders.

I.

On July 25, 2009, plaintiff Martin Neil was injured while using Shingle Care Roof Cleaner Concentrate. Several months later, Neil and his spouse filed suit against Spotts as the seller, Enterprise as the manufacturer, and defendant Shingle Care, LLC (Shingle Care) as the owner of the formula for the injurious product.

The initial complaint consisted of five counts, asserting causes of action sounding in strict liability, breach of warranty, negligence, and gross negligence against Spotts and Shingle Care. An amended complaint was filed on May 17, 2010, which interposed the same claims against Enterprise.

On June 2, 2010, Spotts's attorney forwarded an affidavit to Neil's attorney, supposedly pursuant to N.J.S.A. 2A:58C-9, which explained Spotts's involvement in the purchase and resale of the product, and claimed that it did not "alter, re[-]label or change the product in any way prior to its sale to a prospective purchaser." Spotts insisted that Neil dismiss the case against Spotts, which demand was refused.

Meanwhile, the parties engaged in routine discovery.[1] On May 11, 2011, Spotts wrote to Enterprise demanding that Enterprise provide it a defense and indemnity because Spotts was being "sued . . . on a strict liability theory as a downstream seller of a product manufactured by [Enterprise]." The letter was ignored.

In November 2011, Spotts unsuccessfully moved for summary judgment, which sought to dismiss Neil's complaint. The Law Division concluded that Neil had sufficiently raised a factual dispute as to whether Spotts was negligent in "disregarding . . . and removing [DOT Corrosive 8 warning] labels without providing indicators of the product's corrosiveness on its retail floor." The court also determined that "this arguably falls under [N.J.S.A.] 2A:58C-[9](d)(2) if the seller was in possession of facts from which a reasonable person could conclude showed knowledge of the alleged defect on the part of the product ...


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