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Torts No. 05-02-01398-CV, 5/7/2003. Click here for the full text of this decision FACTS: Freeman Financial Investment Co. d/b/a Freeman Toyota challenges the summary judgment granted in favor of Toyota Motor Corp. and Toyota Motor Sales U.S.A. Inc. on Freeman’s claims for indemnity pursuant to Texas Civil Practice and Remedies Code Chapter 82 and Texas Motor Vehicle Commission Code article 4413(36), �5.02(b)(11). HOLDING: Reversed and remanded. The trial court erred in granting summary judgment on the indemnity issue under Texas Civil Practice and Remedies Code �82.002(a). The Toyota defendants claimed that Freeman was not sued for a products liability claim because the plaintiff’s second amended original petition eliminated that claim and Freeman was not the seller. The petition continued to describe Freeman as the seller of the 1994 Toyota 4-Runner and included Freeman in the strict liability count. Thus, the petition invoked the Toyota defendants’ duty to indemnify, and the inclusion of other negligence claims does not establish the exception to the indemnity provision. Nevertheless, the Toyota defendants argue that because the evidence establishes Freeman did not actually sell the 1994 Toyota 4-Runner, �82.002(a) does not apply. Whether Freeman actually sold the 1994 Toyota 4-Runner is not determinative of the duty to indemnify under this provision. Accordingly, neither the pleadings nor the proof that Freeman did not sell the 1994 Toyota 4-Runner relieved the Toyota defendants of their duty to indemnify under this statute. Freeman complains that the trial court erred in granting the summary judgment because the Toyota defendants did not address Freeman’s claims for indemnity under Texas Motor Vehicle Commission Code article 4413(36) �5.02(b)(11). Freeman had amended its pleading when it filed its response to the motion for summary judgment, but the Toyota defendants did not amend their motion for summary judgment. The Toyota defendants argue that the Texas Motor Vehicle Commission Code applies only to the sale of new vehicles and that they proved that Freeman was not involved in the sale of the 1994 Toyota 4-Runner. However, the Toyota defendants did not move for summary judgment on grounds that the sale was of a used vehicle. Thus, the trial court could not have granted summary judgment on the ground that indemnity under this provision was precluded because the sale was of a used vehicle. The Toyota defendants’ only allegation and evidence was that Freeman was not the seller of the vehicle. They argue that, if Freeman was not a seller, the indemnity provision of the Texas Motor Vehicle Commission Code does not apply. Article 4413(36) �5.02(b)(11) provides that “the manufacturer or distributor shall reimburse the dealer for all loss incurred by the dealer, including legal fees, court costs, and damages, as a result of the dealer having been named a party in a product liability action.” Texas Revised Civil Statutes article 4413(36) �5.02(b)(11). Under this code, a “dealer” is a “franchised dealer,” which means: any person who holds a franchised motor vehicle dealer’s license issued by the [Texas Department of Transportation] pursuant to the terms of Chapter 503, Transportation Code, and who is engaged in the business of buying, selling, or exchanging new motor vehicles and servicing or repairing motor vehicles pursuant to the terms of a franchise and a manufacturer’s warranty at an established and permanent place of business pursuant to a franchise in effect with a manufacturer or distributor. The Texas Motor Vehicle Commission Code requires the party seeking the indemnity to be a dealer named as a party. The pleading named Freeman as a party in a products liability action. The Toyota defendants’ evidence that Freeman was not a seller of the 1994 Toyota 4-Runner did not disprove as a matter of law that Freeman was not a dealer or any other element of the Texas Motor Vehicle Commission Code’s indemnity provision. Freeman was a defendant in a products liability action. Freeman was required to defend the strict liability and negligence claims. Freeman’s indemnity claim includes attorney’s fees and costs for the entire litigation. Thus, simply proving that Freeman was not the seller of the 1994 Toyota 4-Runner was not sufficient as a matter of law to prove the attorney’s fees were unreasonable. Therefore, the trial court erred in granting summary judgment denying Freeman attorney’s fees. OPINION: Rosenberg, J.; Francis, Farris and Rosenberg, JJ.

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