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Click here for the full text of this decision FACTS:Janet McCabe found that the latex gloves she had been using in her occupation caused an allergic reaction. In January 2000, she sued more than 10 manufacturers of latex gloves supplied to her employers as well as the seller-distributor, O&M. That case settled, and all of the defendants were released by McCabe. O&M filed suit against five of the manufacturers, seeking indemnification for its attorneys fees and litigation costs. Claims against three of these were resolved, leaving O&M’s claims against Ansell and BD. Texas law provides by statute that the manufacturer must indemnify a seller for the seller’s losses, including attorneys fees, arising out of a products liability action. O&M alleged it is entitled to collect from the two manufacturers not only the more than $73,000 incurred in the original suit, but an additional $310,000 for the trial of this case and another $65,000 for the appeal. After several summary judgment and other hearings, as well as a bench trial, the trial court found that each of the two manufacturers had an independent obligation for the damages and awarded all of the above to O&M against the two manufacturers as indemnity as authorized by Texas Civil Practice & Remedies Code �82.002. Ansell and BD each appeal. HOLDING:The court affirms the judgment, conditioned on a remittitur of $33,500 of the $65,000 appellate attorneys fee award. In all other respects, the judgment is affirmed. In the event the remittitur is not filed with this court within 20 days from the date of this opinion, the case is remanded to the trial court for a new trial. Section 82.002 requires manufacturers to “indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.” This duty to indemnify sellers “applies without regard to the manner in which the action is concluded” and “is in addition to any duty to indemnify established by law, contract, or otherwise.” No particular product was determined to have actually caused the allergic reaction suffered by McCabe. Each manufacturer produced and sold latex gloves to O&M, which it in turn sold to others. McCabe alleged the latex gloves caused her injuries. Since the case was settled, it is impossible to determine the extent of damage caused by the different products. As a result, O&M was required to defend the case and incurred attorney’s fees. The damages incurred by O&M, like the damage to McCabe, cannot be traced to particular manufacturers. The statute does not require that the product be found defective to allow the seller to recover its losses from the manufacturer. So, even if it were established that one particular manufacturer’s gloves did not cause any damage to McCabe, that would not relieve that manufacturer of its indemnity obligation to O&M. In arriving at the determination of the extent of the duty to indemnify, the court believes the Meritor Auto. Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex. 2001), case is particularly pertinent. The manufacturers insist that they should only be required to indemnify or defend their particular latex gloves, not the entire case which included latex gloves from other manufacturers, even though the other manufacturers were joined in the underlying products liability action. The allegations made by the plaintiff in the underlying case were based on a products liability action. The statute requires indemnity by the manufacturer to the seller for a products liability action caused by a defective product. The Texas Supreme Court in Meritor concluded that this language meant the manufacturer must indemnify and defend the seller even from allegations that the seller was negligent. If the manufacturer must fully indemnify the seller in a products liability action even when it is alleged that the seller’s own negligence was a proximate cause of the plaintiff’s injury, it logically follows that the manufacturer must likewise fully indemnify a seller for a products liability action even when more than one manufacturer of a product allegedly contributed to the damages of the plaintiff. In each instance, the statute requires the manufacturer to indemnify the distributor for the costs incurred by the distributor in a products liability action without regard to the defective nature of the manufacturer’s product. The court concludes Ansell and BD had the duty to indemnify or defend O&M even though O&M distributed products of other manufacturers. Ansell and BD both moved for summary judgment in the trial court on the ground they had offered to defend O&M and, therefore, discharged their duty under �82.002. These motions were denied. Both appellants also maintain that they vigorously defended their respective products, which amounted to a defense of O&M. In support of this argument, Ansell and BD cite Burden v. Johnson & Johnson Med. Inc., 332 F.Supp.2d 1023 (S.D. Tex. 2004). That case involved many of the same manufacturers and O&M, and also stemmed from products liability litigation regarding latex gloves. In circumstances closely paralleling those presented here, the federal district court found that offers by BD and Ansell to defend O&M to the extent O&M was found to have sold BD or Ansell gloves amounted to an offer to defend O&M. After analyzing Meritor, the court disagrees with the holding in Burden. Because Ansell and BD had the duty to indemnify O&M for the products liability action against O&M and they never offered to defend the entirety of the products liability action, the court holds their limited offers to defend only their own products did not fulfill their indemnity duty under the statute. Ansell and BD argue that the trial court erred in finding them independently liable for O&M’s entire damages, thereby assigning joint and several liability to the two defendant manufacturers. “We acknowledge that there is no direct authority that manufacturers are jointly and severally liable for indemnity to the seller, but we believe the law supports this conclusion based on our consideration of a number of sources.” The trial court awarded a total recovery of $73,911.42 for services before June 13, 2002 (the date of O&M’s dismissal with prejudice from the products liability suit), and $310,627.90 for those afterward. This totaled $384,539.32, but the court deducted $32,811 for a settlement, leaving $351,728.32 for the attorney’s fees, paralegal fees, and expenses. The trial court also awarded $65,000 for appellate fees. “The trial court had extensive, detailed billing records from O&M’s attorneys. As pointed out above, the litigation over indemnification went on for two years, and all parties filed numerous, and in many cases voluminous pleadings, motions, and briefs. Common prudence instructs us that spending in excess of $300,000.00 in attorney’s fees to collect $73,911.42 does not make economic sense. However, we must consider the evidence in a light most favorable to O&M. After carefully reviewing the record, we are not persuaded that counsel for O&M specifically overbilled or overworked the case. It appears both sides to this controversy have been litigating this battle on many fronts for a number of years. Each appears willing to spare no expense to see that justice prevails. We find the evidence legally sufficient to support the trial court’s ruling on O&M’s attorney’s fees.” The court also concludes that the trial court’s conclusions and findings regarding attorneys fees are supported by factually sufficient evidence. However, the court finds that the only evidence to support an award for attorneys fees on appeal is $24,000 for an appeal to the court of appeals and an additional $7,500 for an appeal to the Texas Supreme Court. The trial court’s judgment for appellate fees is contrary to the evidence and was clearly wrong., the court concludes. The court concludes that the trial court did not abuse its discretion in overruling Ansell’s motion to join other manufacturers. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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