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.