AFFIRM; and Opinion Filed February 2, 2017.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-15-01377-CV

                         VRIDE, INC., F/K/A VPSI, INC., Appellant
                                           V.
                             FORD MOTOR CO., Appellee

                      On Appeal from the 116th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-14-11247

                             MEMORANDUM OPINION
                       Before Justices Bridges, Lang-Miers, and Stoddart
                                Opinion by Justice Lang-Miers
       This is an appeal from a summary judgment and involves a determination of whether the

underlying lawsuit was a “products liability action” for purposes of statutory indemnity under

Chapter 82 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN.

§§ 82.001–.008 (West 2011).

       Appellant vRide, Inc. sued Appellee Ford Motor Co. for indemnity under Chapter 82 for

damages that vRide paid to James Cernosek II and his wife to settle a lawsuit the Cernoseks filed

against vRide after Cernosek was injured in a Ford van leased by vRide. vRide contended that

the Cernoseks’ lawsuit was a products liability action and it was entitled to indemnity from Ford.

Although Ford contended the Cernoseks’ lawsuit did not allege a products liability action against

vRide, Ford offered to defend and indemnify vRide under certain conditions. vRide rejected

Ford’s offer, settled with the Cernoseks, and filed this lawsuit against Ford seeking indemnity.
Ford and vRide filed competing motions for summary judgment on threshold issues, including

whether the Cernoseks’ petition alleged a products liability action. The court granted Ford’s

motion and denied vRide’s motion without stating the ground for its ruling. vRide appeals the

granting of Ford’s motion and the denial of its own and argues that we should reverse and render

judgment that Ford owed a duty of indemnity to vRide. Because we conclude that the trial court

did not err, we affirm the trial court’s judgment.

                                           BACKGROUND

       vRide is a vanpool provider and leased a Ford E-350 van to the Bell Helicopter employee

ride-share program. Cernosek, a Bell Helicopter employee, was the front-seat passenger in the

van when it was struck by a drunk driver. Although Cernosek was wearing his seatbelt, he was

partially ejected from the van “and sustained serious and blinding injuries.”

       Cernosek and his wife sued the drunk driver and Ford and settled with both. A few

months later, the Cernoseks sued vRide, alleging in paragraphs 14, 15, and 16 that:

       14. [vRide] promised that it put “Safety First” and that its vehicles provide “Safe,
       Reliable Transportation.” These assertions and/or representations are untrue.

       15. Aside from the false statements of [vRide], [vRide’s] negligent acts and/or
       omissions include, but are not limited to, one [or] more of the following:

               (a) [vRide] failed to purchase and/or furnish vehicles with side curtain or
               side canopy airbag systems;

               (b) [vRide] failed to purchase a vehicle with all state of the art safety
               systems;

               (c) [vRide] failed to purchase a vehicle with the most technologically
               advanced occupant safety systems available; and/or

               (d) [vRide] knew, or should have known, that its vehicles would be
               involved in rollover accidents yet furnished no rollover curtains.




                                                –2–
            16. The foregoing acts and/or omissions of [vRide] were a producing and/or
            proximate cause of Plaintiffs’ injuries and damages.[ 1]

            vRide sought indemnity from Ford under Chapter 82 of the Texas Civil Practice and

Remedies Code governing a manufacturer’s duty to indemnify a seller for products liability. Id.

Chapter 82 states that “[a] manufacturer shall indemnify and hold harmless a seller against loss

arising out of a products liability action, except for any loss caused by the seller’s negligence,

intentional misconduct, or other act or omission, such as negligently modifying or altering the

product, for which the seller is independently liable.” Id. § 82.002(a) (West 2011). Chapter 82

defines a “products liability action” as

            any action against a manufacturer or seller for recovery of damages arising out of
            personal injury, death, or property damage allegedly caused by a defective
            product whether the action is based in strict tort liability, strict products liability,
            negligence, misrepresentation, breach of express or implied warranty, or any other
            theory or combination of theories.

Id. § 82.001(2). vRide and Ford disputed whether the Cernoseks’ petition alleged a products

liability action, and each filed a motion for summary judgment on this threshold issue. 2

vRide’s Motion for Summary Judgment

            vRide argued in its motion that the Cernoseks’ allegations “fit within the statute’s

expansive definition of ‘products liability action.’” vRide compared the Cernoseks’ allegations

against it to the allegations they made against Ford and argued that many of the claims “were all




     1
         The Cernoseks also alleged in paragraphs 17 through 19:
            17. In the alternative and/or in addition to the other counts listed herein, Plaintiffs bring an action for fraud.
            18. Defendant made material and/or false representations or statements knowing they were false.
            19. Defendant’s false representations directly and proximately caused injury to [sic] and damages.
      In a footnote in its motion for summary judgment, vRide stated that the allegations in paragraphs 17 and 18 of the Cernoseks’ third
amended petition “are unclear but presumably based on the same purported misrepresentation alleged in Paragraph 14. . . . As such, these
allegations would also independently constitute a ‘products liability action.’” vRide does not address paragraphs 17 through 19 on appeal.
     2
       The parties also moved for summary judgment on the threshold issues of whether i) the settlement agreement between Ford and the
Cernoseks released vRide and eliminated Ford’s duty to defend and indemnify vRide, and ii) Ford’s offer to defend and indemnify vRide
complied with Chapter 82.



                                                                          –3–
based on the same alleged defects in the Ford van.” 3 vRide argued that it did not matter that the

Cernoseks’ allegations against it were “disguised under misrepresentation, fraud or negligence

theories.” For example, vRide contended that the Cernoseks could not allege “that vRide

misrepresented providing ‘Safe, Reliable Transportation’ without also alleging that the van was

unsafe and therefore defective.” And it contended that the Cernoseks’ negligence allegations

“necessarily included allegations of a defective product” by alleging the absence of safety

systems. vRide also contended that because the Cernoseks’ claims rely on defective product

allegations and the same injuries were alleged in both lawsuits, “it must follow that the identical

injuries . . . were caused by the same alleged defects (i.e. through the alleged omission of safety

features . . .).”

Ford’s Motion for Summary Judgment

           Ford argued in its motion, among other things, that the Cernoseks did not allege a

products liability action against vRide because the petition did not mention the terms “product,”

“defect,” “product liability action,” “unreasonably dangerous,” manufacturing, marketing, or

design defect, “safer alternative design,” lack of warnings, or similar terms that usually are

associated with a products liability claim. Ford also argued that it was improper to consider the

Cernoseks’ allegations in the lawsuit against Ford in determining whether the Cernoseks’

allegations against vRide asserted a products liability action. And it contended that vRide’s use

of phrases such as “‘disguised’ product claims” and “necessarily includes” supports Ford’s

argument that the Cernoseks’ allegations did not assert a products liability action against vRide.

           The trial court granted Ford’s motion and denied vRide’s motion.




    3
        In the lawsuit against Ford, the Cernoseks alleged that the van was defective and not crashworthy.



                                                                      –4–
                                                          STANDARD OF REVIEW

             The purpose of the summary-judgment rule is to provide a method of summarily

terminating a case when it clearly appears that no genuine issue of fact remains and only a

question of law is involved. Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627,

631–32 (Tex. App.—Dallas 2000, pet. denied). Here, the facts are undisputed, and the competing

summary-judgment motions present the threshold issue of whether Chapter 82 applies to the

case. When cross-motions for summary judgment deal with the application of a statute to

undisputed facts, we may determine the question presented as a matter of law. Gramercy Ins.

Co., Inc. v. Auction Fin. Program, Inc., 52 S.W.3d 360, 363 (Tex. App.—Dallas 2001, pet.

denied). And when the summary judgment does not state the ground for the court’s ruling, we

must affirm if any of the theories presented to the trial court and preserved for appellate review is

meritorious. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

                                                              APPLICABLE LAW

             The purpose of Chapter 82 is to protect innocent sellers by assigning responsibility for

the burden of products-liability litigation to the product’s manufacturer. Petroleum Solutions v.

Head, 454 S.W.3d 482, 494 (Tex. 2014). When a petition alleges that a manufacturer’s product

is defective, an innocent seller who suffers loss is protected under the indemnity provisions of

Chapter 82. 4 Id.

             Whether the plaintiff has asserted a products liability action so as to trigger the duty to

indemnify is determined from the allegations in the plaintiff’s petition. Id. at 492 (citing Gen.

     4
         Section 82.003(a)(5) states that a nonmanufacturing seller is not liable for harm caused by the product unless it is shown that

                        (A) the seller made an express factual representation about an aspect of the product;
                        (B) the representation was incorrect;
                        (C) the claimant relied on the representation in obtaining or using the product; and
                        (D) if the aspect of the product had been as represented, the claimant would not have been harmed by the
                        product or would not have suffered the same degree of harm[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 82.003(a)(5).



                                                                         –5–
Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 256 (Tex. 2006)). The duty is

triggered by allegations of a defect in the manufacturer’s product. Id. (citing Hudiburg, 199

S.W.3d at 256).

       Chapter 82 does not define “defective product.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 82.001. The Supreme Court of Texas has defined it to mean “a product unreasonably

dangerous because of a defect in marketing, design, or manufacturing.” Caterpillar, Inc. v.

Shears, 911 S.W.2d 379, 381–82 (Tex. 1995). A manufacturing-defect claim alleges that the

finished product deviated, in terms of its construction or quality, from the specifications or

planned output in a manner that rendered the product unreasonably dangerous. Ford Motor Co.

v. Ledesma, 242 S.W.3d 32, 41–42 (Tex. 2007) (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d

420, 434 (Tex. 1997)). A design-defect claim alleges that there was a safer alternative design that

in reasonable probability “would have prevented or significantly reduced the risk of the

claimant’s personal injury, property damage, or death without substantially impairing the

product’s utility.” TEX. CIV. PRAC. & REM. CODE ANN. § 82.005; Cooper Tire & Rubber Co. v.

Mendez, 204 S.W.3d 797, 807 (Tex. 2006). And a marketing-defect claim alleges a failure to

warn of a product’s potential dangers when there was a duty to warn. Grinnell, 951 S.W.2d at

426.

                                           DISCUSSION

       vRide contends on appeal that the Cernoseks’ petition “is a target-rich environment” of

allegations of a defective product—the Ford van—and if one of those allegations is based on a

claimed defective product, the lawsuit falls within the definition of a products liability action

under Chapter 82.




                                               –6–
vRide’s Arguments Concerning the Cernoseks’ Misrepresentation Claims

        We begin with vRide’s arguments about the allegations in paragraph 14 of the

Cernoseks’ petition. The Cernoseks alleged that vRide falsely “promised that it put ‘Safety First’

and that its vehicles provide ‘Safe, Reliable Transportation.’” vRide contends that proof of these

allegations depends on proof that the product, the Ford van, was defective. vRide argues that the

Cernoseks would have to show that the Ford van was unsafe and unreliable to prove that vRide’s

promise to provide “safe, reliable transportation” was false. vRide contends that “[a] claim that a

product is ‘unsafe’ sound[s] in either negligence or strict products liability” and both are

products liability actions. vRide also argues that the Cernoseks cannot prove that vRide’s

promise that it put “Safety First” was false without proving that the van was “unsafe (and

therefore defective) in some respect.” It argues that if the claim is that the injury was caused by

the unsafe product, it is a products liability action.

        Ford acknowledges that “whether a particular suit constitutes a ‘products liability action’

turns on whether the claimant alleged damages caused by a defective product, irrespective of the

legal theory alleged.” It argues, however, that “the allegations made against vRide do not amount

to claims that the vehicle itself was defective, but rather they are claims of vRide’s own

negligent actions, misrepresentation, and fraud regarding vRide’s consideration of safety features

when selecting vehicles to provide to its customers.” Ford also acknowledges that no “magic

words” are required by the statute to be included in the petition, but points out that the

Cernoseks’ “Petition contains no allegation that the vehicle contained a defect, was unreasonably

dangerous, presented an unreasonable risk of harm, or the like.” It argues that a claim is not a

products liability claim merely because it refers to a product and contends that “the allegations

focus on what vRide promised and on its failure to fulfill its promises.”




                                                  –7–
       Ford cites Martin Product Sales, LLC v. Bominflot Bunker Oil Corp., No. 14-13-00003-

CV, 2014 WL 3051227, at *2–3 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (mem.

op.), to support its argument that while no “magic words” are required, there must be allegations

of a defective product. The Houston 14th Court of Appeals analyzed the petition in the

underlying lawsuit involved in that case and noted the absence of words such as “defective” or

“unreasonably dangerous” and the lack of identification of any defect in marketing, design, or

manufacturing. Id. at *3. The court concluded that, as a result, the petition did not “show as a

matter of law that the loss arose from a product liability action.” Id.

       vRide also cites several cases, both federal and state, to support its arguments that this is

a products liability action. In one of those cases, Hassell v. Mo. Pac. Ry. Co., 880 S.W.2d 39

(Tex. App.—Tyler 1994, writ denied), the plaintiff was a railway worker who developed a

hearing impairment in his work with the railroad. Id. at 41. He sued the railroad and two

manufacturers of railway equipment alleging the equipment was “unsafe” and caused his hearing

loss. Id. It was clear that the plaintiff’s lawsuit involved an allegation of unsafe equipment that

he claimed caused his damages. Id. But there was no similar allegation in the Cernoseks’ petition

that the Ford van was unsafe or unreliable; the allegations were directed at vRide’s

representations about its vehicles in general.

       vRide also contends that the Cernoseks’ allegations are similar to those in Gill v.

Michelin North America, Inc., 3 F. Supp. 3d 579, 583–84 (W.D. Tex. 2013). In that case, the

plaintiffs sued Michelin for damages sustained when an allegedly defective tire exploded.

Michelin removed the lawsuit to federal court, and Gill filed a motion for leave to add the seller

of the truck as a defendant. Id. at 581. Gill also moved to remand the lawsuit to state court

because if he was allowed to add the seller, a non-diverse defendant, it would defeat the federal

court’s jurisdiction. Id. In the motion for leave, Gill alleged that the seller “made express factual

                                                 –8–
representations that the truck at issue, with the tire in question, was a good vehicle and could be

used in a manner that Plaintiffs was [sic] intending for its use.” Id. at 584. It was undisputed in

that case that the plaintiffs alleged their damages were caused by a defective component of the

truck, the tire, and the seller’s alleged representations concerning the product thereby fell within

the definition of a products liability action. See id. Instead, the question in Gill was whether the

plaintiff’s purpose for adding the nonmanufacturing seller as a defendant was to defeat federal

jurisdiction. Id. at 583–84. This required the court to look at the theory under which Gill sued the

seller and determine whether it stated a cognizable claim. Id. Gill contended that the allegations

against the seller fell within one of the exceptions to the nonliability of a nonmanufacturing

seller found in section 82.003(a). Id. at 584. Unlike in Gill, however, the dispute here is whether

the Cernoseks’ petition alleged a products liability action in the first instance, not whether one of

the exceptions to the nonliability of a nonmanufacturing seller applies.

       vRide also argues that the Cernoseks’ allegations are “substantively indistinguishable”

from the allegations in In re Yamaha Motor Corp. Rhino ATV Products Liability Litigation, No.

3:09-MD-2016-JBC, 2009 WL 939279 (W.D. Ky. Apr. 6 2009), where the court said the claims

fell within the Chapter 82 definition of a products liability action. In that case, a woman was

injured when the Yamaha Rhino in which she was riding rolled over. Id. at *1. She sued the

manufacturer of the Rhino alleging design and manufacturing defects. Id. She also sued the

sports center that sold her the Rhino alleging that the salesperson made false representations

about its safety when he told her it was “safer than a four wheeler.” Id. at *3. As in the Gill case,

it was undisputed that the plaintiff in Yamaha alleged a products liability action, and the issue

was whether the plaintiff stated a claim that fell within one of the exceptions to the nonliability

of a nonmanufacturing seller. Id. at 3–4. And as we stated with regard to the Gill case, the issue




                                                –9–
here is whether the Cernoseks alleged a products liability action in the first instance, not whether

one of the exceptions applies.

       In the lawsuit against vRide, the Cernoseks did not allege that vRide made

representations specifically about the Ford van. Instead, they alleged generally that vRide

misrepresented the presence of safety features on the vehicles it provides in its lease programs

and promised that its vehicles had certain safety features when they did not. The Cernoseks did

not allege that the Ford van was defective without those safety features. We conclude that the

Cernoseks’ misrepresentation claims did not allege a products liability action.

vRide’s Arguments Concerning Negligence Claims

       vRide also argues that the allegations in paragraph 15 of the Cernoseks’ petition alleged a

products liability action. In that paragraph, which we quoted earlier, the Cernoseks alleged that

vRide was negligent by failing to purchase vehicles with certain safety features for its lease

programs. vRide argues that these allegations “are more than sufficient to provide fair notice”

that the Cernoseks were asserting a products liability action, regardless of the legal theory. vRide

contends that the “logical interpretation” of these allegations is that the Cernoseks’ injuries were

caused by a defective product, the Ford van, because it did not have those safety features. And it

argues that “[c]ourts have had little difficulty in concluding that these types of vehicle faults” are

products liability actions, citing for support Garcia v. Nissan Motor Co., No. M-05-59, 2006 WL

869944 (S.D. Tex. Mar. 30, 2006), and Benavides v. Chrysler Group LLC, No. 7:14-CV-518,

2014 WL 5507716 (S.D. Tex. Oct. 9, 2014). Again, we do not find these cases persuasive.

       In Garcia, the plaintiff sued Nissan and the company that sold him an Altima for

damages his minor son sustained in an automobile accident. 2006 WL 869944, at *1. The

plaintiff claimed the Altima was defective because it did not have electronic stability control,

was not crashworthy in foreseeable side-impact collisions, and did not have a side-curtain airbag,

                                                –10–
among other things. Id. at *2. The essence of the allegations in Garcia was that the vehicle was

defective without those features. See id. The allegations of a defective product were sufficient to

bring the lawsuit within Chapter 82. See id. at *2–3. The Benavides case also involved

allegations of a defective vehicle, specifically that a 2002 Dodge Ram pickup was defective in

design and manufacture that made it unsafe in rollover incidents, and that a safer alternative

design existed that would have prevented or significantly reduced the rollover and injury to the

plaintiff. 2014 WL 5507716, at *1. Unlike the plaintiffs in Garcia and Benavides, however, the

Cernoseks did not allege that the Ford van was defective because it did not have the various

safety systems as allegedly represented by vRide. We conclude that the Cernoseks’ negligence

claims did not allege a products liability action.

vRide’s General Arguments

       vRide also contends that the Cernoseks’ allegations are “quintessential ‘products liability

actions’ even under [a] narrower common-law definition of that term.” Citing Marrs v. Ford

Motor Co., 852 S.W.2d 570, 577–78 (Tex. App.—Dallas 1993, no writ), and Caterpillar, Inc.,

911 S.W.2d at 381, vRide argues that these types of “allegations are so common that they have

their own legal moniker: ‘no-airbag cases.’”

       In Marrs, the plaintiff’s wife, a passenger in a 1986 Ford Taurus, was killed in a head-on

collision. 852 S.W.2d at 572. Her husband sued Ford alleging that the Taurus was unreasonably

dangerous because it did not have a passenger-side airbag. Id. We characterized the claim as a

common law products liability action; there was no question that the plaintiff contended the

Taurus was defective. Id. The question on appeal, however, was not whether the claim was a

products liability action, but whether federal safety regulations preempted the state law claim. Id.

It was also undisputed in Caterpillar that the plaintiff asserted a products liability action. The

plaintiff alleged that the front-end loader that injured him was unreasonably dangerous because it

                                                –11–
was designed to allow the rollover protection system to be removed and because the defendants

failed to warn him of the danger of operating the loader without the rollover protection. 911

S.W.2d at 380. Unlike the plaintiffs in Marrs and Caterpillar, however, the Cernoseks did not

allege that the Ford van was unreasonably dangerous or defectively manufactured or designed

because it lacked certain safety features.

       In these cases upon which vRide relies, the parties did not dispute that the claimant

alleged damages caused by a defective product and that, consequently, the lawsuits fell within

the definition of “products liability action.” Here, however, Ford and vRide do disagree about

whether the Cernoseks’ petition alleged a products liability action. In resolving that question, we

have examined the statute defining “products liability action” and cases interpreting that

definition. And although the definition has been interpreted broadly, Centerpoint Builders GP,

LLC v. Trussway, Ltd., 496 S.W.3d 33, 36 (Tex. 2016), it nevertheless requires allegations of

damages that arose from personal injury, death, or property damage allegedly caused by a

defective product, TEX. CIV. PRAC. & REM. CODE ANN. § 82.001(2). See Head, 454 S.W.3d at

492; Ford Motor Co. v. Miles, 141 S.W.3d 309, 317 (Tex. App.—Dallas 2004, pet. denied)

(“The concept of defect is considered central to any products liability action, whether the alleged

defect occurs in the design, manufacturing, and/or marketing of the product.”) (quoting

Rodriguez ex rel. Rodriguez v. Hyundai Motor Co., 944 S.W.2d 757, 769 (Tex. App.—Corpus

Christi 1997), rev’d on other grounds, 995 S.W.2d 661 (Tex. 1999)).

       Allegations of a defective product include allegations that the product was unreasonably

dangerous by manufacture or design, that there was a safer alternative design, or that the

defendant failed to warn about the dangers of the product. See, e.g., Ledesma, 242 S.W.3d at 41–

43 (explaining manufacturing and design defects); Hyundai Motor Co. v. Rodriguez ex rel.

Rodriguez, 995 S.W.2d 661, 664–66 (Tex. 1999) (explaining defect of uncrashworthiness); see

                                              –12–
also Martin Prod. Sales, 2014 WL 3051227, at *3 (statute requires more than allegation that

damage was caused by product; statute requires allegation that damage was caused by defective

product, and petition that did not use words “defective,” “unreasonably dangerous,” or identify

marketing, design, or manufacturing defect did not, as a matter of law, allege loss was caused by

defective product).

       The Cernoseks’ petition did not allege that the Ford van was unreasonably dangerous,

was defective by manufacture or design, was rendered defective because it lacked certain safety

features, or was otherwise defective. Instead, the petition alleged that vRide represented its

vehicles had certain safety features when in actuality the vehicles did not have those safety

features and that vRide failed to furnish vehicles with those safety features. In short, the

Cernoseks’ petition did not contain allegations that the damages arose out of personal injury,

death, or property damage allegedly caused by a defective product.

                                            CONCLUSION

       We conclude that the allegations in the Cernoseks’ petition did not satisfy Chapter 82’s

definition of a products liability action. As a result, the trial court did not err by granting Ford’s

motion for summary judgment and denying vRide’s motion. Because our resolution of this issue

is dispositive of the appeal, we do not need to reach vRide’s remaining issues. We affirm the trial

court’s judgment.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE


151377F.P05




                                                –13–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

VRIDE INC., F/K/A VPSI, INC., Appellant              On Appeal from the 116th Judicial District
                                                     Court, Dallas County, Texas
No. 05-15-01377-CV         V.                        Trial Court Cause No. DC-14-11247.
                                                     Opinion delivered by Justice Lang-Miers.
FORD MOTOR CO., Appellee                             Justices Bridges and Stoddart participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Ford Motor Co. recover its costs of this appeal from
appellant vRide Inc., f/k/a VPSI, Inc.


Judgment entered this 2nd day of February, 2017.




                                              –14–
