Concluding trial court erred in denying indemnity claim where such claim was not set forth in pre-trial order

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Third-Party Plaintiffs/Defendants/Appellants Rust-Oleum Corporation and ROC Sales, Inc. (collectively “Rust-Oleum”) appeal the trial court’s entry of summary judgment in favor of Third-Party Defendant/Appellee United States Can Company (U.S. Can).  Rust-Oleum presents two issues for our review which we restate as:

(1) Whether the trial court erred by granting summary judgment in favor of U.S. Can.

(2) Whether the trial court erred by denying summary judgment for Rust-Oleum.


Conclusion
(slip op. at 9):  We conclude that the trial court erred in granting summary judgment in favor of U.S. Can. We also conclude that the trial court properly denied summary judgment in favor of Rust-Oleum.  Reversed in part, affirmed in part and remanded.


Key Analysis
(slip op. at 5, 9):  The trial court did not allow the indemnity claim to be litigated at the trial of the underlying cause because the claim was not set forth in the pre-trial order. However, we do not believe this equates to a waiver of Rust-Oleum’s third-party indemnity claim. The issue of indemnity was still a viable claim that was merely in a dormant state until the conclusion of the underlying action . . . When indemnity ceased to be an issue at trial of the underlying cause, U.S. Can’s role as a party in that trial also ceased. Therefore, because U.S. Can was removed from the prior litigation, U.S. Can should not now be precluded from litigating these issues.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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