United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick United States District Judge
Wiese USA, Inc., seeks a declaratory judgment requiring
Defendant Haulotte Group / Bil-Jax, Inc. (âBil-Jaxâ), to
indemnify and defend Wiese in three state-court lawsuits
arising out of an alleged accident involving one of
Defendant's products and filed in Illinois. (Doc. No. 1).
Both Wiese and Bil-Jax have filed motions for summary
judgment. (Doc. No. 22; Doc. No. 27). The parties have
completed briefing on the motions. For the reasons stated
below, I deny Wiese's motion and grant Bil-Jax's
and Bil-Jax, in some capacity, have had a business
relationship dating back to early 2008. (Doc. No. 24-1 at
13-15). Bil-Jax designs and manufactures certain products for
use in construction fields, including an aerial boom lift
which allegedly in the genesis of this litigation. (Doc. No.
1 at 3). Wiese contracts with manufacturers to be an
authorized dealer of the products and equipment produced by
those manufacturers. (Doc. No. 22-1).
2012, Wiese and Bil-Jax negotiated an agreement, pursuant to
which Wiese would stock, rent, and service Bil-Jax products
within a given territory (the “Dealer
Agreement”). (Doc. No. 1-1). The Dealer Agreement
included an indemnification provision, which states, in part,
that Bil-Jax “shall indemnify and hold [Wiese] harmless
against and assume the full responsibility for the defense
and disposition of all claims or suits asserted against
[Wiese] in which it is alleged that death, bodily injury[, ]
or property damage has been suffered as a result of an
occurrence which is due in whole or in part from a producr
(sic) defect caused by Haulotte Group / BilJax in the design,
manufacture, containerization[, ] or identification of the
Products . . . .” (Id. at 7).
alleges that, in January 2016, a Bil-Jax aerial boom lift
malfunctioned while in use by two employees of a roofing
company, causing the employees to fall approximately 30 feet.
The roofing company, Sentry Roofing, Inc., had purchased the
aerial boom lift from Airworx Construction and Equipment
Supply, LLC, and had contracted with Wiese to inspect,
maintain, repair, and service the aerial boom lift. (Doc. No.
1 at 3). Following the accident, Sentry and the two employees
each filed suit against Airworx, Wiese, and Bil-Jax. Bil-Jax
refused Wiese's tender of defense for those lawsuits,
leading to this litigation.
judgment is appropriate if the movant demonstrates there is
no genuine dispute of material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
All evidence must be viewed in the light most favorable to
the nonmovant, White v. Baxter Healthcare Corp., 533
F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences
are drawn in the nonmovant's favor. Rose v. State
Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir.
2014). A factual dispute is genuine if a reasonable jury
could resolve the dispute and return a verdict in the
nonmovant's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A disputed fact is
material only if its resolution might affect the outcome of
the case under the governing substantive law. Rogers v.
O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).
and Bil-Jax have filed cross motions for summary judgment.
Wiese argues the indemnity provision of the Dealer Agreement
is enforceable and that it is entitled to a declaratory
judgment in its favor. (Doc. No. 22). Bil-Jax argues the
indemnification provision is not enforceable because the
Dealer Agreement does not contain the signature of an
individual authorized to sign on Bil-Jax's behalf, and
that Wiese's claim for common-law indemnification also
fails. (Doc. No. 27-1).
abandoned its claim for common-law indemnity, (Doc. No. 33 at
3 n.1), but argues the indemnification provision is
enforceable because it is excepted from the Statute of Frauds
under the leading-objection exception or because the Dealer
Agreement satisfies the Statute of Frauds. I conclude the
indemnity provision of the Dealer Agreement is unenforceable
because it does not comply with the Statute of Frauds.
requires that an indemnity agreement be in writing and signed
by the party who would be required to provide indemnity to
another party. Ohio Rev. Code § 1335.05 (“No
action shall be brought whereby to charge the defendant, upon
a special promise, to answer for the debt, default, or
miscarriage of another person . . . unless the agreement upon
which such action is brought, or some memorandum or note
thereof, is in writing and signed by the party to be charged
therewith or some other person thereunto by him or her
the Dealer Agreement fulfills the writing requirement, no
party has produced a copy of the Dealer Agreement which
contains the signature ...