United States District Court, S.D. Indiana, Indianapolis Division
DIRECT ENTERPRISES, INC., OLYMPUS SEED TREATMENT FORMULATOR, INC., Plaintiffs,
SENSIENT COLORS LLC, Defendant. SENSIENT COLORS LLC, Third Party Plaintiff,
SPECTRA COLORANTS, INC., Third Party Defendant.
JANE MAGNUS-STINSON, CHIEF JUDGE
Direct Enterprises, Inc. (“DEI”) and
Olympus Seed Treatment Formulator, Inc.
“Plaintiffs”) are companies that
specialize in blending and selling treatment mixtures for
seeds. As is relevant here, Defendant and Third-Party
Plaintiff Sensient Colors LLC
(“Sensient”) sells colorants that are
used as additives in seed treatment blends, and Defendant and
Third-Party Defendant Spectra Colorants, Inc.
(“Spectra”) manufactures colorants. This
matter arises primarily from a dispute among the parties
regarding a batch of allegedly defective colorants
manufactured by Spectra that Plaintiffs purchased from
Sensient. Plaintiffs and Sensient have reached a settlement
agreement, and the only issue remaining for the Court's
resolution is Sensient's claim against Spectra for
contractual duties of indemnification and defense. Sensient
has moved for summary judgment on that claim, and for the
reasons described below, the Court denies that motion.
market and distribute farming inputs and agricultural
products, including seed treatments such as fungicides and
pesticides. [Filing No. 189-1 at 3-4.] By federal
regulation, seeds that are treated with compounds that are
poisonous to humans and animals must be colored, so that
persons handling the seeds are aware of their potential
toxicity. [Filing No. 189-1 at 5.] Several of
Plaintiffs' seed treatments contain compounds that have a
degree of toxicity to humans and animals, and in 2012,
Plaintiffs sought to purchase colorants to add to their
treatment blends. [Filing No. 189-1 at 6-7.]
Sensient is a supplier of colorants, which it promotes for
use in food, cosmetic, and industrial applications.
[Filing No. 189-4 at 3.] Plaintiffs made their first
purchase of colorants from Sensient in May 2012, followed by
more purchases in subsequent months. [See, e.g., Filing
No. 95-3; Filing No. 95-6; Filing No.
95-7; Filing No. 95-8; Filing No.
189-6.] Plaintiffs mixed those colorants into their seed
treatments to create the final blends sold to customers.
[Filing No. 189-1 at 3.] The colorants that
Plaintiffs purchased from Sensient were manufactured by
Spectra.[Filing No. 190 at 12.]
in the spring of 2013, Plaintiffs received complaints from
customers that their seed treatments had
“hardened” and become unusable. [Filing No.
189-1 at 25-26.] After investigating those complaints,
Plaintiffs became convinced that Sensient's colorants
were the source of the problem, and they notified Sensient of
the issue. [Filing No. 189-1 at 25-26.] Sensient
claims that after learning of the complaints from Plaintiffs,
it investigated by speaking to Spectra. [Filing No.
190 at 12 (citing Filing No. 189-14 at 16).]
After conducting its own examination, Spectra discovered that
some of the red colorants it sold to Sensient “had a
greater level of ammonia than originally contemplated.”
[Filing No. 195 at 2; Filing No. 189-14 at
15.] As a result of the customer complaints, Plaintiffs
provided credits and/or replacements to some of their
customers. [Filing No. 189-1 at 28-29.]
filed suit in this Court against Sensient, raising six
claims: (1) fraud and constructive fraud; (2) breach of
contract; (3) breach of express warranty; (4) breach of the
implied warranty of merchantability; (5) breach of the
implied warranty of fitness for a particular purpose; and (6)
violation of the Indiana Products Liability Act
(“IPLA”). [Filing No. 95.]
Sensient then filed a third-party complaint against Spectra,
alleging that Spectra owes Sensient a duty to defend and a
duty to indemnify Sensient against Plaintiffs' claims.
[Filing No. 44 at 12-13.]
moved for summary judgment both on Plaintiffs' claims
against it and on its claims against Spectra, [Filing No.
189], which Plaintiffs and Spectra opposed, [Filing
No. 195; Filing No. 197]. After the
parties' summary judgment briefing was complete,
Plaintiffs and Sensient reached a settlement on
Plaintiffs' claims, and the parties have filed a
stipulation of dismissal as to those claims. [Filing No.
253; Filing No. 254.] Accordingly, the only
issue remaining for resolution on summary judgment is whether
Spectra is required to defend and indemnify Sensient.
[Filing No. 253.] That issue is now ripe for the
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). As the current version of Rule 56 makes clear, whether
a party asserts that a fact is undisputed or genuinely
disputed, the party must support the asserted fact by citing
to particular parts of the record, including depositions,
documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party
can also support a fact by showing that the materials cited
do not establish the absence or presence of a genuine dispute
or that the adverse party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact disputes that are irrelevant
to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). The moving party is
entitled to summary judgment if no reasonable fact-finder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court
views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit
Court of Appeals has “repeatedly assured the district
courts that they are not required to scour every inch of the
record for evidence ...