United States District Court, W.D. Virginia, Roanoke Division
ROBERT J. COLLIER, Plaintiff,
LAND & SEA RESTAURANT CO., LLC d/b/a FRANKIE ROW LAND'S STEAKHOUSE, Defendant/Third-party Plaintiff,
PERFORM ANCE FOOD GROUP, INC. d/b/a PERFORM ANCE FOOD SERVICE-VIRGINIA, Third-party Defendanf Crossclaim Plaintiff,
SAM RUST SEAFOOD, INC., Third-party Defendant/ Crossclaim Defendant/ Fifth-party Plaintiff,
CADE CODE SHELLFISH & SEAFOOD COM PANY, Fifth-party Defendant/ Sixth-party Plaintiff,
NORM BLOOM AND SON, LLC, Sixth-party Defendant
GLEN E. CONRAD, District Judge.
Pending before the court is a motion for summary judgment filed by third-part defendant Sam Rust Seafood, Inc. ("Sam Rust"), in which it seeks summary judgment against Count VII of the second amended third-party complaint. The motion has been fully briefed, the parties argued the motion at a June 12, 2014 hearing, and it is now ripe for disposition.
Plaintiff Robert Collier alleges that he suffered serious injuries as the result of eating "unwholesome food" at Frankie Rowland's Steakhouse on April 14, 2011. In the count at issue here-Count VII-third-party plaintiff Land & Sea Restaurant Company, LLC d/b/a Frankie Rowland's Steakhouse ("Land & Sea") seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201, that Sam Rust is required to defend and indemnify Land & Sea against Collier's claims.
Sam Rust seeks summary judgment on two grounds. Its primary argument is that Land & Sea failed to give it timely and reasonable notice of plaintiff's claim and thus that Sam Rust is under no obligation to either defend the claim or indemnify Land & Sea. Second, Sam Rust argues that it is entitled to summary judgment because neither of Land & Sea's corporate designees was able to identify specifically which product of Sam Rust is supposed to have made the plaintiff ill or to identify any specific defect in that product. ECF No. 102 at 13.
For the reasons discussed below, the court concludes that neither of these arguments entitles Sam Rust to summary judgment. Accordingly, Sam Rust's motion for summary judgment will be denied.
Although this case involves a number of pleadings brought against various parties, and although there have been several opinions already written by the original judge assigned to this case,  the motion presently before the court is a straightforward one that involves only a single claim. The court nonetheless will provide some general background first to help orient the reader and then turn to more specific facts relevant to the issues raised in the summary judgment motion.
I. General Background
As noted, plaintiff in this case alleges that he suffered damages, including severe bodily damage, due to food poisoning after consuming "unwholesome food, " at Frankie Rowland's Steakhouse on April 14, 2011. ECF No. 1 at 1. His original complaint did not identify any specific food item as the cause of his illness, but did make reference to him suffering from "paralytic shellfish poisoning" and stated that he consumed a meal that "included shellfish, among other things." ECF No. 1 at 2. At his March 17, 2014 deposition, plaintiff clarified that in addition to the meal he ordered, which consisted of "[i]ceberg lettuce, salad, steak, a baked potato, asparagus, two Budweiser[s], bread pudding, and a coffee[, ]" he also tried some of the appetizers others in his party had ordered. ECF No. 110-1 at 5, Collier Dep. at 56. Specifically, he ate two or three oysters, one or two scallops, and perhaps half a shrimp. Id. In reports dated May 2014, two of plaintiff's experts have now opined that his injuries were caused by his "ingestion of saxitoxin tainted oysters" at Land & Sea. See ECF No. 140 at 18; ECF No. 141 at 12-13.
Land & Sea had several suppliers from which it purchased food, and one of its primary suppliers was Performance Food Group, Inc. ("PFG"). According to the deposition of Jennifer Mika, one of PFG's employees, PFG supplied the oysters, the scallops, and the shrimp to Land & Sea, and PFG bought at least the oysters and scallops from Sam Rust. ECF No. 110-8 at 3-4, Mika Dep. at 54, 102. Additionally, certain shellfish tags obtained by the Virginia Department of Health ("VDH") during its investigation of Land & Sea after Collier became ill, indicate that the oysters served to Collier's table were supplied by Sam Rust. See, e.g., ECF No. 102-1 at 71.
After Collier filed suit against Land & Sea, Land & Sea sued PFG in a third-party complaint. PFG initially brought Sam Rust into the suit by way of a fourth-party complaint, see ECF No. 29. In its fourth-party complaint, PFG alleged both a common law indemnification claim against Sam Rust, as well as a claim for indemnification pursuant to a Foodservice Products Supplier Agreement ("the Agreement") between PFG and Sam Rust, executed in 2009. See ECF No. 110-9. When Land & Sea amended its third-party complaint to add the declaratory judgment count against Sam Rust, it, too, relied on the Agreement's indemnification provision. In pertinent part, the provision states:
14. Indemnification: Insurance
A. Indemnification. Supplier [i.e., Sam Rust] will indemnify, defend, and hold PFG, its affiliates and subsidiaries and their officers, directors, employees and agents, as well as any customers of PFG and its subsidiaries harmless from and against any allegations asserted or damages, liabilities, losses, costs or expenses (including reasonable attorneys' fees) sought in any claim, action, lawsuit or proceeding connected with or arising out of any of the following (collectively, "Claims"):
2) Death of or injury to any person, damage to any property, or any other damage or loss resulting or claimed to have resulted, in whole or in part, from any quality or other defect in the Product, whether latent or patent, or failure of the Product to comply with any express or implied warranties or any claims of strict liability in tort relating to the Product...
Notwithstanding the foregoing, [Sam Rust] shall not be liable to PFG to the extent PFG's damages are determined to result from PFG's own gross negligence or willful misconduct. [Sam Rust] shall use counsel reasonably satisfactory to PFG in the defense of such Claims. PFG shall, within thirty (30) days after receipt of notice of a Claim against PFG, notify [Sam Rust] thereof; provided, however, that failure of PFG to provide such notice to [Sam Rust] shall not limit the defense or indemnification ...