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Brettell v. Omron Scientific Technologies, Inc.

United States District Court, D. Massachusetts

March 27, 2018

KRISTEN BRETTEL, Plaintiff,
v.
OMRON SCIENTIFIC TECHNOLOGIES, INC. and OMRON STI MACHINE SERVICES, INC., Defendants/ Third Party Plaintiffs,
v.
MADICO, INC., Third Party Defendant.

          MEMORANDUM OF DECISION AND ORDER ON MOTION OF THIRD-PARTY DEFENDANT, MADICO, INC., FOR SUMMARY JUDGMENT

          JUDITH GAIL DEIN UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         The plaintiff, Kristen Brettell, was injured while working on a laminating machine at the facility of her employer, Madico, Inc. (“Madico”). She brought this action against the defendants, Omron Scientific Technologies, Inc. and Omron STI Machine Services, Inc. (collectively “Omron”), alleging that Omron had been negligent in its inspection, testing and/or servicing of the laminating machine. Omron brought a Third-Party Complaint against Madico for contractual indemnification (Count I) and breach of contract (Count II). This matter is presently before the court on “Third Party Defendant Madico, Inc.'s Motion for Summary Judgment” (Docket No. 75) pursuant to which Madico is seeking judgment in its favor on both counts of the Third-Party Complaint (Docket No. 48) (“Third-Party Compl.”). For the reasons detailed herein, Madico's motion for summary judgment is DENIED.

         II. STATEMENT OF FACTS[1]

Madico's Retention of Omron

         Madico is a manufacturer of laminating and coating films for windows and other applications. It has a facility in Woburn, Massachusetts. Omron is a machine and safeguarding consulting company. SF ¶ 1. It is hired by manufacturing customers to, among other things, conduct safety training, evaluate equipment, and recommend, design and install safety improvements. Id.; OResp. ¶ 1. It is undisputed that on August 12, 2009, Omron sent a quotation to Madico to perform an assessment of the machinery at Madico (the “Quotation”). See SF ¶ 3; OResp. ¶ 3.[2] Included in the Quotation were “Terms and Conditions of Sale.” SF ¶ 3; Ex. 3.

         The Quotation provided in relevant part as follows:

OMRON STI Machine Services, Inc. is pleased to provide an estimate for the following machine and process safeguarding assessment services for the (2) line coaters, (3) slitters and (3) mixers at your facility in Woburn, MA:
• Perform on-site machine safeguarding assessment pursuant to relevant OSHA, ANSI, and NFPA standards and other applicable guidelines as identified by the customer for the equipment specified.
• Identify risk level based on intended operator interface and maintenance requirements and recommend commensurate risk reduction measures for the associated equipment. Reduction measures to comply with applicable guidelines.
• Provide a complete machine safeguarding assessment documentation package including identified risk levels, risk reduction recommendations, and plan-view drawings as well as line item spreadsheet including estimated cost to bring each machine or process into compliance.

         Ex. 3. The “Terms and Conditions of Sale” attached to the Quotation included the following provision:

Indemnity. Omron will indemnify, defendant and hold Customer harmless from and against losses, damages, suits and related costs and expenses (“Losses”) arising out of claims of third parties for bodily injuries (including death) ... to the extent such Losses are legally determined to result solely from from the sole negligence of Omron Customer shall indemnify, defend and hold harmless Omron from and against all claims, liabilities, costs and expenses, including legal fees and costs (except those resulting from the willful misconduct or gross negligence of Omron), arising in any way in connection with (i) acts or omission of Customer or its employees or agents, (ii) Customer's use of the Products or System or the Services.

Id. (emphasis added). In response to this Quotation, on August 18, 2009, George Zanni of Madico sent Scott Brayton of Omron Purchase Order No. M01133 for a “machine guarding assessment report” and “[e]xpenses for guarding assessment” in the ...


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