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Surber v. Shanghai Zhenhua Heavy Industries Co., Ltd.

United States District Court, W.D. Washington, Tacoma

February 13, 2015

MAXINE SURBER, Plaintiff,
v.
SHANGHAI ZHENHUA HEAVY INDUSTRIES CO., LTD., Defendant.

ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE

RONALD B. LEIGHTON, District Judge.

I. INTRODUCTION

THIS MATTER is before the Court on Plaintiff's Motion to Strike Defendant Shanghai Zhenhua Heavy Industries Co.'s third-party claims against Hemlock and Evergreen. [Dkt. #21].

Jeffrey Surber was crushed and killed while maintaining a Shanghai ship-to-shore container crane's "trolley cable" in 2013. Jeffrey's wife, Maxine, is his estate's personal representative. She sued Shanghai for wrongful death and violations of the Washington Product Liability Act (WPLA) (RCW 7.72), claiming that the crane was unreasonably unsafe in design and construction.

Shanghai's Answer asserts third-party claims against Hemlock Equipment (which owns the crane), and Evergreen Marine (which leases the crane from Hemlock and operates it at the Pierce County Terminal, where the accident occurred). Shanghai seeks equitable indemnity from both companies, claiming that they failed to instruct Surber how to safely inspect the trolley cable without placing himself in the way of pinching and crushing hazards, and generally failed to maintain a safe workplace.

Surber asks the Court to strike Shanghai's third-party equitable indemnity claims (or, at least, to sever them) from her claim against Shanghai. She argues primarily that Shanghai's claims against Hemlock and Evergreen are not permitted under Rule 14 because they are not derived from or dependent on Surber's WPLA claims against Shanghai. She argues that Shanghai's "them, not me" claims are not claims that Hemlock and Evergreen may be liable to Shanghai, but are instead claims that they may be liable to Surber.

Shanghai argues that its claims against Hemlock and Evergreen are derivative of Suber's claims against Shanghai; it's third-party complaint expressly claims that, if it is liable to Surber, Hemlock and Evergreen are liable to it.

II. BACKGROUND

Jeffrey Surber was part of a three person crew (one crane operator and two inspectors) inspecting and maintaining the Shanghai ship-to-shore crane trolley cable at the Pierce County Terminal in Tacoma, Washington. Surber put himself in the way of a crushing hazard and he was killed. His Estate sued (only) Shanghai for wrongful death and violations of the WPLA.

Shanghai seeks to implead Hemlock Equipment and Evergreen Marine as third-party defendants. It claims that Hemlock and Evergreen are at least partially responsible for Surber's damages, and that they are equitably obligated to at least partially indemnify Shanghai for any sums it pays Surber. It claims that Hemlock and Evergreen failed to instruct Surber how to inspect the trolley cable without placing himself in the way of the pinching and crushing hazards, and that that failure caused Surber's death. Shanghai also claims generally that Surber's death was caused by Hemlock and Evergreen's failure to maintain a safe workplace-a claim that Surber does not and could not allege against it as a manufacturer.

Surber asks the Court to strike Shanghai's third-party complaint, arguing primarily that its third-party claims are not derivative of Surber's WPLA claims. Instead, Shanghai's third-party "them, not me" claims allege that Hemlock and Evergreen (and not Shanghai) caused Surber's death by failing to instruct him or failing to maintain a safe workplace. Surber argues that Shanghai may not implead third-party defendants merely because they might be liable to Surber; instead, they are permitted to assert only a claim that Hemlock and Evergreen are liable to Shanghai, which they have not done.

Surber also argues that Shanghai's "equitable indemnity" claims fail because Shanghai faces only proportionate, not joint and several, liability. Thus, Shanghai faces no risk of paying damages for which someone else is liable. Surber further argues that Shanghai's "equitable" indemnity claims are not properly in this case, because it has not pled any facts or theory that would plausibly lead to the conclusion that Hemlock or Evergreen have a contract or tort-based obligation to indemnify Shanghai if it is determined to be liable to Surber.

Shanghai argues that its third-party claims against Hemlock and Evergreen are derivative of Suber's WPLA claims mostly because Shanghai expressly claims that they are. Shanghai does not identify an affirmative claim against Hemlock or Evergreen, but does suggest that it faces at least the possibility of joint and several liability. Shanghai apparently argues that Hemlock and Evergreen should be in the case so that it can seek contribution from them if it is required to pay more than its proportionate share of damages. Finally, Shanghai claims ...


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