                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                  UNITED STATES CO URT O F APPEALS
                                                      October 11, 2007
                                                 Elisabeth A. Shumaker
                      FO R TH E TENTH CIRCUIT        Clerk of Court




SAM UEL D . ED W ARD S,

            Plaintiff,

v.                                              No. 06-7036
                                          (D.C. No. 04-CV-96-W )
PEPSICO , INC., a North Carolina                (E.D. Okla.)
corporation,

            Defendant,
            Cross-Claimant,
            Cross-D efendant,
            Third-Party-Plaintiff-
            Appellee,

PEPSI-COLA COM PANY, a N orth
Carolina corporation,

            Defendant,
            Cross-Claimant,
            Cross-Defendant-
            Appellee,

B.W . SINCLAIR, INC., a Texas
corporation,

            Defendant,
            Cross-Defendant,
            Cross-Claimant,
            Third-Party-Plaintiff-
            Appellant.
                           OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




      This diversity action arises from injuries sustained by Samuel D. Edwards

when, at his place of employment, he reached into a jam med machine with his

dominant hand to ascertain the cause of the jam. M r. Edwards lost two fingers

and a third was severed. He subsequently brought suit against multiple

defendants, asserting claims for manufacturer’s product liability, negligence, and

recklessness. Judgment was entered on a jury verdict— as is relevant to this

appeal— in favor of plaintiff Edwards and against defendant PepsiCo, Inc.,

defendant Pepsi-Cola Company (collectively, Pepsi), and defendant B.W .

Sinclair, Inc. (Sinclair). Pepsi and Sinclair’s cross-claims for indemnity and

contribution, having been previously bifurcated from the trial, remained

outstanding. The district court then instructed Pepsi and Sinclair to file their

proposed findings of fact and conclusions of law. After reviewing the post-trial


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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submissions and all of the evidence presented at trial, including live testimony,

depositions, exhibits, and stipulations of the parties, the court entered findings of

fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a). Applying the

substantive law of New York, which the parties agree is applicable to the

warranty and indemnity provision at issue (referred to as the “Pepsi Terms”), the

district court ruled in favor of Pepsi on its claim for contractual indemnity.

Sinclair appeals that decision, asserting that the Pepsi Terms do not clearly show

the parties’ “unmistakable intent” that Sinclair w ould indemnify Pepsi for its

“own [proportional] share of fault assessed by the jury;” consequently, argues

Sinclair, the district court erroneously granted judgment in favor of Pepsi. Aplt.

Opening Br. at 7; see also id. at 24.

      Our jurisdiction in this diversity case arises under 28 U.S.C. § 1291.

Because the interpretation of a contract is a question of law in New York, our

review is de novo. See Gulf Ins. Co. v. Transatlantic Reinsurance Co.,

788 N.Y.S.2d 44, 45 (N.Y. App. Div. 2004); see also Salve Regina Coll. v.

Russell, 499 U.S. 225, 231 (1991) (concluding “that a court of appeals should

review de novo a district court’s determination of state law”).

      The district court provided a detailed summary of the facts and procedural

history involved in this case, and we need not restate that material here. Having

reviewed the briefs, the record, and the applicable law pursuant to the

above-mentioned standard, we hold that Sinclair has not identified any reversible

                                          -3-
error in this case. W e therefore AFFIRM the judgment of the district court for

substantially the same reasons stated in its order dated M arch 26, 2006.


                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




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