       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2       Garland, et al. v. Triangle         Nos. 02-5096/5097/
    ELECTRONIC CITATION: 2003 FED App. 0225P (6th Cir.)           Enterprises, et al.                          5098/5216
                 File Name: 03a0225p.06

                                                                                                  -
                                                                                                  -
                                                                       v.
UNITED STATES COURT OF APPEALS
                                                                                                  -
                                                              TRIANGLE ENTERPRISES, INC.,
                                                                                                  -
                                                                    Defendant/Third-Party
                                                                                                  -
              FOR THE SIXTH CIRCUIT
                                                                       Plaintiff-Appellant,
                                                                                                  -
                _________________
                                                              OWENS CORNING FIBERGLAS
                                                                                                  -
                                                                                                  -
                                                              CORPORATION,
                                 X
                                                                                                  -
                                                                                Defendant.
                                  -
         No. 02-5096
HORACE GARLAND; MARTHA
                                  -                                                               -
                                  -                                                               -
GARLAND,                                                               No. 02-5098
                     Plaintiffs, -                                                                -
                                       Nos. 02-5096/          FRANCES DEE HALL,
                                                                                                  -
                                       5097/5098/5216
                                  ,
                                                              individually and as Executrix
                                                                                                  -
TRIANGLE ENTERPRISES, INC., >
                   Third-Party -
                                                                                                  -
                                                              of the Estate of Burl R. Hall,
         Defendant-Appellant, -
                                                                                                  -
                                                                                     Plaintiff,
                                  -                                       v.
                                                                                                  -
                                  -
           v.
                                                              OWENS CORNING FIBERGLAS             -
                                  -
TENNESSEE VALLEY
                                                                                                  -
                                  -
                                                              CORPORATION, et al.,
                                                                                                  -
AUTHORITY,
       Defendant/Third-Party -
                                                                                                  -
                                                                                  Defendants,
            Plaintiff-Appellee. -
                                                                                                  -
                                                              TRIANGLE ENTERPRISES, INC.,
                                  -                                   Defendant/Third-Party
                                                                                                  -
                                  -                                       Plaintiff-Appellant,
                                                                                                  -
                                  -
         No. 02-5097
                                                                                                  -
                                  -
                                                                          v.
                                                                                                  -
J. PAUL CARNEAL; MARY
                                  -
                                                              TENNESSEE VALLEY
                                                                                                  -
CARNEAL,
                     Plaintiffs, -
                                                                                                  -
                                                              AUTHORITY,
                                  -                                                               -
TENNESSEE VALLEY                                                                  Third-Party
                                  -                                     Defendant-Appellee.
                                                                                                  -
                   Third-Party -
AUTHORITY,
                                                                                                  -
          Defendant-Appellee, -                                                                   -
                                  -
                                                                     No. 02-5216
                                                                                                  -
                                  -
                                                              RONNIE D. BEAN,
                                                                                                  -
BADHAM INSULATION
                                  -                                                               -
COMPANY; BRAUER SUPPLY                                                           Plaintiff,
COMPANY,                          -                           TRIANGLE ENTERPRISES, INC.,
                                                                                                  -
                  Defendants, -                                     Defendant/Third-Party
                                                                                                  -

                            1
Nos. 02-5096/5097/              Garland, et al. v. Triangle         3    4    Garland, et al. v. Triangle         Nos. 02-5096/5097/
5098/5216                              Enterprises, et al.                    Enterprises, et al.                          5098/5216


                              -                                          Tennessee, for Appellee. ON BRIEF: Kathy P. Holder,
                              -
              Plaintiff-Appellant,
                                                                         Joseph B. Myers, Jr., Robert L. Steinmetz, FROST, BROWN
                              -
              v.                                                         & TODD, Louisville, Kentucky, for Appellant. Edwin W.
                              -                                          Small, Thomas A. Robins, TENNESSEE VALLEY
 OWENS CORNING FIBERGLAS      -                                          AUTHORITY, Knoxville, Tennessee, for Appellee.
 CORPORATION,                 -
                 Defendant, -
                                                                                             _________________
                              -
                              -
 TENNESSEE VALLEY                                                                                OPINION

                Third-Party -
 AUTHORITY,                                                                                  _________________
                             N                                             WILLIAM W SCHWARZER, Senior District Judge.
         Defendant-Appellee.
                                                                         Third-party Triangle Enterprises, Inc. (“Triangle”) appeals
                                                                         from the dismissal of its third-party complaints for indemnity
         Appeal from the United States District Courts                   against third-party defendant Tennessee Valley Authority
              for the Western District of Kentucky                       (“TVA”). In the four underlying cases, consolidated on
                   at Paducah and Owensboro.                             appeal, the plaintiffs asserted that they were injured as a
        Nos. 01-00260; 01-00254; 01-00191; 01-00249—                     result of exposure to asbestos and alleged claims for damages
         Thomas B. Russell; Joseph H. McKinley, Jr.;                     based on strict liability, negligence, and breach of implied
             Edward H. Johnstone, District Judges.                       warranty. Their complaints alleged, in substance, that
                                                                         Triangle was negligent in removing and installing asbestos-
                     Argued: June 10, 2003                               containing products and failing to protect workers against
                                                                         asbestos exposure. In addition, the Garland complaint alleged
                Decided and Filed: July 9, 2003                          failure to warn workers and to follow guidelines for safe
                                                                         handling of asbestos. Triangle filed third-party complaints
        Before: MOORE and GIBBONS, Circuit Judges;                       against TVA for apportionment of fault based on allegations
             SCHWARZER, Senior District Judge.*                          that TVA distributed and installed asbestos products at the
                                                                         work site. In its amended third-party complaints, Triangle
                      _________________                                  further sought indemnity, alleging that TVA was negligent in
                                                                         failing to provide a safe place of employment and safeguards
                           COUNSEL                                       necessary to protect its employees, that any negligence on
                                                                         Triangle’s part was secondary and passive, and that the active
ARGUED: Kathy P. Holder, FROST, BROWN & TODD,                            and primary negligence was TVA’s.
Louisville, Kentucky, for Appellant. Edwin W. Small,
TENNESSEE VALLEY AUTHORITY, Knoxville,                                     TVA moved to dismiss the third-party complaints pursuant
                                                                         to Rule12(b)(6) and the district courts granted the motions.
    *
                                                                         Fed. R. Civ. P. 12(b)(6). They held that if there is proof of
     The Honorable William W Schwarzer, Senior United States District    fault on the part of TVA, an apportionment instruction is
Judge for the Northern District of California, sitting by designation.
Nos. 02-5096/5097/           Garland, et al. v. Triangle         5   6    Garland, et al. v. Triangle         Nos. 02-5096/5097/
5098/5216                           Enterprises, et al.                   Enterprises, et al.                          5098/5216

appropriate. An indemnity claim, however, was not available            The pleadings disclose that Triangle is an independent
because wrongful acts of TVA, if any, will not expose                contractor who installed and tore out asbestos products on the
Triangle to liability. It is only the wrongful acts of Triangle      premises of power plants in Kentucky owned and operated
which will expose it to liability. This appeal followed. The         by the TVA. TVA is alleged to have provided asbestos-
district courts had jurisdiction under 28 U.S.C. § 1442(a)(1),       containing products and to have failed to furnish a safe
and we have jurisdiction of the appeal under 28 U.S.C.               workplace and to take proper precautions. The four plaintiffs
§ 1291. Because we find the record to be insufficient at this        who worked at those power plants allegedly contracted
stage to determine whether Triangle may be entitled to               asbestos-related diseases as a result of their occupational
indemnity, we vacate the judgments and remand for further            exposure to asbestos at the TVA worksite.
proceedings.
                                                                       A complaint may not be dismissed for failure to state a
                       DISCUSSION                                    claim “unless it appears beyond doubt that the plaintiff can
                                                                     prove no set of facts in support of his claim which would
  Kentucky law recognizes indemnity claims between                   entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
tortfeasors. The leading case of Brown Hotel Co. v.                  (1957). The skeletal pleadings, which constitute the entire
Pittsburgh Fuel Co., 224 S.W.2d 165 (1949), states:                  record before us, do not enable us to determine as a matter of
                                                                     law that Triangle could not establish that TVA’s fault, if any,
  Where one of two parties does an act or creates a hazard           was “the primary and efficient cause of the injury.” Thus, we
  and the other, while not concurrently joining in the act,          cannot say, based on the current state of the pleadings, that
  is, nevertheless, thereby exposed to liability to the person       Triangle can prove no set of facts entitling it to indemnity.
  injured, or was only technically or constructively at fault,
  as from the failure to perform some legal duty of                                        CONCLUSION
  inspection and remedying the hazard, the party who was
  the active wrongdoer or primarily negligent can be                   For the reasons stated, we VACATE the judgments below
  compelled to make good to the other any loss he                    and, without passing on the merits, REMAND for further
  sustained.                                                         proceedings consistent with this decision.
224 S.W.2d at 167. The Kentucky Supreme Court only
recently reaffirmed the Brown Hotel principle in Degener v.
Hall Contracting Corp., 27 S.W.3d 775, 780 (2000), holding
that the right to indemnity is available “where both parties
have been at fault, but not in the same fault, towards the party
injured, and the fault of the party from whom indemnity is
claimed was the primary and efficient cause of the injury”
(quoting Louisville Ry. Co. v. Louisville Taxicab & Transfer
Co., 77 S.W.2d 36, 39 (1934)).
