

October 11, 1996  UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 95-2293

            ELIZABETH WILSON, INDIVIDUALLY AND AS
           MOTHER AND NEXT FRIEND OF AILSA DeBOLD,

                    Plaintiff, Appellant,

                              v.

            BRADLEES OF NEW ENGLAND, INC., ET AL.,

                    Defendants, Appellees.

                                         

                         ERRATA SHEET

The opinion  of  this Court,  issued  on  September 25,  1996,  is
amended as follows:

On  page 19,  2nd line  of  last  paragraph, replace  "court" with
"Court".

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 95-2084

                  ROBERT B. GRENIER, ET AL.,

                    Plaintiffs, Appellees,

                              v.

             VERMONT LOG BUILDINGS, INC., ET AL.,

       Defendants, Third-Party Plaintiffs, Appellants.

                              v.

         DAP, INC. and CHAMPION INTERNATIONAL CORP.,

             Third-Party Defendants, Appellees. 

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                 

                                         

                            Before

                    Torruella, Chief Judge,                                                      

              Boudin and Stahl, Circuit Judges.                                                          

                                         

Carol A. Griffin with whom Lawrence  F. Boyle, W. Joseph  Flanagan                                                                              
and Morrison, Mahoney &amp; Miller were on brief for appellants.                                      
Roger  D.  Matthews with  whom  Nick  K.  Malhotra  and Madan  and                                                                              
Madan, P.C.  were on  brief  for  appellees  DAP,  Inc.  and  Champion                   
International Corp.

                                         

                      September 25, 1996

                                         

     BOUDIN,  Circuit  Judge.    Joan Grenier  suffered  from                                        

chronic gastritis for several years, allegedly in reaction to

the wood preservative applied  to the walls of her  log home.

She and her family sued Vermont Log Buildings, Inc. ("Vermont

Log"), the manufacturer of  their home, claiming  negligence,

breaches  of warranty,  and  violation of  Mass. Gen.  L. ch.

93A.1   Vermont  Log in  turn filed  a  third-party complaint

against the  alleged manufacturers of the  preservative.  The

district   court    granted   summary   judgment    for   the

manufacturers,  rejecting  Vermont Log's  third-party claims.

Vermont Log appeals.  We affirm.

     Because the  case was  decided on summary  judgment, our

recitation  of the facts is  based primarily on  the facts as

alleged.   Snow v.  Harnischfeger Corp.,  12 F.3d  1154, 1157                                                   

(1st  Cir. 1993),  cert. denied, 115  S. Ct.  56 (1994).   In                                           

April 1975, Robert and  Joan Grenier purchased the components

of a log  house from  an authorized dealer  for Vermont  Log.

The logs were shipped  to the Greniers' lot in  Massachusetts

and  assembled there.  The  Greniers moved into  the house in

May 1975.  Vermont Log had treated the  logs with Woodlife, a

wood   preservative   containing   the    active   ingredient

pentachlorophenol.

                                                    

     1Chapter  93A outlaws  "[u]nfair methods  of competition
and unfair or deceptive  acts or practices in the  conduct of
any  trade  or  commerce,"  and permits  awards  of  multiple
damages and attorneys' fees.

                             -2-                                         -2-

     In early 1982, Joan Grenier began displaying symptoms of

gastritis,  and continued to  suffer intermittent stomach and

back pain  for several years.   A doctor who examined  her in

April 1987 suspected  that her condition  was caused by  wood

preservative in the logs of the Greniers' cabin.  Later tests

revealed an elevated level  of pentachlorophenol in her body.

When  she   moved   out   of  the   house,   her   level   of

pentachlorophenol dropped and her symptoms abated.

     At the  time the  Greniers bought their  cabin, Woodlife

was  registered  as a  pesticide as  required by  the Federal

Insecticide,  Fungicide,  and  Rodenticide  Act  ("FIFRA"), 7

U.S.C.     136-136y.  FIFRA  is one  of a  family of  federal

regulatory statutes  that are  concerned with  health, safety

and  (in this  case)  the  environment.    Two  of  its  main

components are a requirement of prior approval of the product

by the Environment Protection Agency, 7 U.S.C.   136a(a), and

of  EPA approval of  the labeling supplied  with the product,

id.   136a(c)(1)(C).               

     In  early 1975,  the  Woodlife labeling,  which EPA  had

approved,  warned that the product was toxic and was not "for

use or  storage in or  around the home."   The labeling  also

included  a  section  describing  the uses  of  the  product:

"PRODUCT USES: Millwork, shingles, siding, structural lumber,

fences,  trellises, outside  furniture,  vacation homes,  all

lumber  and wood products."   On September 26,  1975, the EPA

                             -3-                                         -3-

approved a modified label for Woodlife.  On the new labeling,

the section listing product uses no longer included "vacation

homes" as a use  and added a further warning:  "Do not use on

interior surfaces which are not to be finished."

     The Greniers filed suit in  1990 against Vermont Log and

two  allegedly  related  corporate   entities  (collectively,

"Vermont Log"),  alleging that pentachlorophenol used  in the

log  home  caused  Joan  Grenier's illness.    The  claims as

ultimately amended comprised  ten different counts, including

bare bones  claims for  express and implied  warranty breach,

for negligence  in design,  manufacture and failure  to warn,

and under chapter 93A.   Joan Grenier sought damages  for her

injuries;  her  husband  and  the  Greniers'  three  children

claimed loss of consortium.

     In  1991,  Vermont  Log  filed a  third-party  complaint

against  DAP, Inc. and  Roberts Consolidated  Industries, the

alleged manufacturers, sellers, and distributors of Woodlife.

Thereafter,  Champion  International, Inc.,  was  added as  a

third-party  defendant (Roberts  was later  dropped  from the

case by  agreement).   As amended, Vermont  Log's third-party

complaint asserted  claims for contribution under  Mass. Gen.

L.  ch.  231B based  on  negligence by  the  manufacturers of

Woodlife,  and  claims  for  breaches of  warranty  by  those

manufacturers. 

                             -4-                                         -4-

     In August 1991,  DAP and Roberts  removed the action  on

diversity  grounds to  federal  district court  where it  was

assigned to Judge Zobel.  In  due course, Vermont Log and the

third-party  defendants  moved for  summary  judgment on  the

Greniers'  claims on the grounds that they were barred by the

statute of limitations and that they were preempted by FIFRA.

On November 4, 1992,  Judge Zobel ruled that Joan  and Robert

Grenier's warranty  and negligence claims were  barred by the

statute  of limitations,  but that  their chapter  93A claims

were timely under  its longer limitations  period.  She  also

held   that  none  of  the  children's  claims  for  loss  of

consortium was  barred, since the statute  of limitations was

tolled during their minority.

     Judge  Zobel further  held that  Vermont Log  could seek

contribution from DAP and  Champion (for convenience we refer

to them  hereafter as "the Woodlife  manufacturers"); but she

ruled  that  Vermont  Log  could  not  obtain indemnification

because  by selling  the  logs to  the  Greniers Vermont  Log

participated  in  the  conduct  that  allegedly  damaged  the

Greniers.     Finally,  Judge  Zobel  concluded   that  under

Wisconsin Pub.  Intervenor v.  Mortier, 501 U.S.  597 (1991),                                                  

none of the claims was preempted by FIFRA.

     After Judge  Zobel's November 1992 ruling,  the case was

reassigned to newly appointed Judge Gorton.  In May 1993, the

Woodlife   manufacturers  filed   new  motions   for  summary

                             -5-                                         -5-

judgment, this  time against Vermont Log;  they argued (based

on  intervening case law) that FIFRA preempted all of Vermont

Log's remaining  claims against them.   Then-Magistrate Judge

Ponsor, to whom the case had been referred, held a hearing on

the motion in September 1993.

     In  July  1994,  Judge   Ponsor,  having  recently  been

appointed a district judge, relinquished jurisdiction in this

case.  At the same time he issued a memorandum in a companion

case brought  by a  different plaintiff against  Vermont Log.

Judge  Ponsor  there ruled  that  FIFRA  preempted claims  of

failure to  warn  and breach  of  implied warranty,  but  not

claims of breach of express warranty and negligent design and

manufacture.   Jillson  v. Vermont Log  Bldgs., Inc.,  857 F.                                                                

Supp. 985 (D. Mass. 1994).

     After the present case was returned to Judge  Gorton, he

ruled that all of  Vermont Log's claims were "related  to the

labeling  and packaging" of  Woodlife.   While noting  that a

properly  supported  express  warranty  claim  might  not  be

preempted,  Judge  Gorton found  Vermont  Log's  claim to  be

"based  entirely on the label" because "[n]o other factual or

evidentiary  basis   for  the  claim  was   provided  in  the

pleadings."  Judge Gorton granted summary judgment to DAP and

Champion  and  entered a  separate  final  judgment in  their

favor.  See Fed. R. Civ. P. 54(b).                       

                             -6-                                         -6-

     On appeal,  Vermont Log  argues that the  district court

erred in finding that all  of its claims were preempted:   it

says that FIFRA preempts only those state-law claims based on

the labeling  or packaging of pesticides and  it asserts that

most of its claims are not based on the labeling or packaging

of Woodlife but rather  upon design and manufacturing defects

and upon failure to warn unrelated to labeling and packaging.

We review the district court's  grant of summary judgment  de                                                                         

novo, drawing reasonable inferences  in favor of Vermont Log.                

Brown v. Hearst Corp., 54 F.3d 21, 24 (1st Cir. 1995).                                 

     We  begin, in the classic fashion, by seeking to lay the

counts   allegedly  preempted   along   side  the   statutory

preemption clause and the cases that have interpreted it  and

similar language in other statutes.  Where, as here, Congress

has included an express preemption clause in the  statute, we

start  with the language of  that provision.  Medtronic, Inc.                                                                         

v.  Lohr, 116 S. Ct. 2240 (1996); Cipollone v. Liggett Group,                                                                         

Inc., 505 U.S. 504, 517 (1992).  FIFRA's preemption clause, 7                

U.S.C.   136v, reads as follows:

     (a) In general

               A State may regulate the sale or use
          of any federally registered  pesticide or
          device in  the State, but only  if and to
          the extent the regulation does not permit
          any  sale  or  use  prohibited   by  this
          subchapter.

     (b) Uniformity

                             -7-                                         -7-

               Such  State  shall  not   impose  or
          continue in effect  any requirements  for
          labeling  or packaging in  addition to or
          different from those required  under this
          subchapter.

     It  is apparent  from subsection (a),  as well  as other

statutory language, e.g., 7 U.S.C.    136w-1, that FIFRA does                                    

not wholly  oust the states  from pesticide regulation.   See                                                                         

generally Mortier, 501  U.S. at  612-13.  And  it is  equally                             

apparent  from subsection  (b)  that the  state cannot  apply

different  or  additional  "requirements" for  "labeling  and

packaging."  It was once an open question, but is now settled

by   the  Supreme   Court   in  Cipollone   and  Lohr,   that                                                                 

"requirements" in  this context presumptively  includes state

causes of  action as well as laws and regulations.  Lohr, 116                                                                    

S. Ct. at 2251-53  (plurality opinion), id., 2259-60 (Breyer,                                                       

J.,  concurring in  part  and concurring  in judgment),  id.,                                                                        

2262-63 (O'Connor, J., Scalia, J., and Thomas, J., concurring

in  part and dissenting in part); Cipollone, 505 U.S. at 521-                                                       

22 (plurality  opinion), id.,  548-49 (Scalia, J.  and Thomas                                        

J., concurring in judgment in part and dissenting in part).

     This court so held in  King v. E.I. Dupont de Nemours  &amp;                                                                         

Co.,  996 F.2d 1346 (1st  Cir.), cert. dismissed,  114 S. Ct.                                                            

490 (1993), which, unlike  Cipollone and Lohr, involved FIFRA                                                         

itself.  Other circuits are in accord.  E.g., Papas v. Upjohn                                                                         

Co., 985 F.2d 516 (11th  Cir.), cert. denied, 114 S.  Ct. 300                                                        

(1993).   Our  case involves  third-party claims--by  the log

                             -8-                                         -8-

supplier against the  chemical manufacturers--but nothing  in

the  preemption  clause  limits   its  effects  to  suits  by

consumers.   Indeed,  Vermont  Log itself  concedes that  its

claims based  on the inadequacy of EPA  approved labeling are

preempted by FIFRA; its objection,  as already noted, is that

most of its claims do not fit this rubric.

     To appraise this objection requires a closer description

of Vermont Log's actual claims.  Here,  Vermont Log's amended

third-party complaint is structured so that, in four separate

counts, two  different categories  of claims are  directed at

DAP  and Champion.   In  parallel counts  III and  V, Vermont

Log's  complaint says  that DAP  and Champion  are or  may be

liable  to  Vermont  Log  for their  own  "negligent  design,

manufacture, and failures to  warn"; confusingly, Vermont Log

then  in the same counts  asserts these wrongs  simply as the

basis  for  a pro  rata  contribution claim  against  DAP and

Champion.2

     Then, in  two other parallel counts (IV and VI), Vermont

Log asserts that DAP  and Champion are or  may be liable  for

breach of  "express and implied warranties  that said product

[apparently  a reference  to  Woodlife]  was of  merchantable

                                                    

     2It is  unclear why  Vermont Log  sought  only pro  rata
contribution  since  the  negligent acts  alleged  might also
entitle it to full recovery absent  some bar like preemption.                              
Cf.  Fireside Motors, Inc. v. Nissan  Motor Corp., 479 N.E.2d                                                             
1386, 1389 (Mass. 1985) (citing Restatement (Second) of Torts                                                                         
  886B, cmt. c (1979)).

                             -9-                                         -9-

quality,  free   of  hazardous  defects,  and   fit  for  the

particular  purpose intended."   On  this claim,  Vermont Log

seeks not pro rata recovery  but compensation for whatever it

may have to pay to the Greniers plus its costs  in conducting

the  litigation.   It is  easiest to  discuss all  of Vermont

Log's  claims   functionally,  that  is,  in   terms  of  the

defendants' alleged wrongful conduct.  

     Failure to warn.  The  most obvious state-law claim  for                                

Vermont   Log,  preemption  aside,   is  that   the  Woodlife

manufacturers should  have warned Vermont  Life that Woodlife

was  not  suitable  for  residences.    This  claim,  whether

presented  as a  negligence claim  or a  claim for  breach of

implied warranty, is preempted by FIFRA as far as the present

case is concerned.  Vermont Log concedes this is so as to any

inadequacy in the labeling as approved by EPA.

     It argues, however, that FIFRA permits a failure to warn

claim so  far is it is not "based on labeling or packaging." 

Here  lurks a  potentially vexing  problem:  one  can imagine

claims  based  on   what  was   said  or   not  said   during

conversations, in correspondence, or  in point of sales signs

or the  absence of such  signs.  Whether  and to what  extent

these  kinds of  claims  should  be  preempted depends  on  a

                             -10-                                         -10-

reading of section 136v  and related judgments.   The answers

are far from clear.3

     But  the  structure  of  FIFRA  indicates  that Congress

intended the pesticide labeling to bear the primary burden of                                                               

informing the buyer of dangers and limitations.  See 7 U.S.C.                                                                

  136a(c); 40  C.F.R.   156.10.   If  the plaintiff wants  to

premise a failure to warn claim on a communication or failure

to  communicate by some other  means, it is  incumbent on the

plaintiff to set forth a coherent specific claim.  On appeal,

Vermont  Log does not even attempt to explain how its failure

to warn claim  is based  on anything other  than the  alleged

inadequacy of the labeling approved by EPA.

     Affirmative misstatement.   Under Massachusetts law,  an                                         

express warranty  may be created  where the seller  makes any

"affirmation  of  fact or  promise"  or  "description of  the

goods"  and this statement becomes  part of the  basis of the

bargain.  Mass.  Gen. L.  ch. 106,    2-213.   An  inaccurate

statement  might also  support a  recovery under a  theory of

negligent misrepresentation.  Cf. Danca v. Taunton Sav. Bank,                                                                        

429 N.E.2d  1129, 1133-34  (Mass. 1982).   Such claims  could

conceivably  be  based  either  on  statements  made  in  the

                                                    

     3Compare  Chemical  Specialties  Manufacturers Ass'n  v.                                                                     
Allenby, 958 F.2d  941, 946-47 (9th Cir.),  cert. denied, 113                                                                    
S.  Ct.  80  (1992)  (state  statute requiring  point-of-sale
warnings not  preempted), with Taylor AG  Industries v. Pure-                                                                         
Gro, 54 F.3d 555, 561 (9th Cir. 1995) (failure to warn claims               
based on inadequacy of point-of-sale signs preempted).

                             -11-                                         -11-

labeling  or elsewhere;  and the  statements might  be either

consistent with FIFRA requirements or in violation of them.

     These variations  give rise to  different and  difficult

preemption questions.  The circuits are not unanimous even as

to FIFRA itself,  see generally Lowe v.  Sporicidin Int'l, 47                                                                     

F.3d  124, 128-29 (4th Cir. 1995),  let alone other statutes.

As  Lohr illustrates, the signals  from the Supreme Court are                    

blurred by  disagreements  within the  Court.   But, in  this

case, the only affirmative misstatement identified by Vermont

Log is the statement  in the original labeling  that Woodlife

was  suitable  for  application   to  "all  wood  and  lumber

products."

     This unqualified statement may  have been inaccurate, as

its later revision suggests, but it was a statement contained

in  EPA-approved  labeling.    To premise  liability  on  the

inaccuracy of the statement is in substance to determine that

a different statement should have been made  in the labeling.

Yet the  statute itself prohibits  a state requirement  as to

labeling that is "different"  than that prescribed by federal

law.  7 U.S.C.   136v.  See  Lowe, 47 F.3d at 129.  Thus  the                                             

only  express  warranty   claim  specifically  identified  by

Vermont Log is preempted.

     Misdesign  or manufacture.    Whether on  a warranty  or                                          

negligence theory, recovery might  be premised on mistakes in

the   design  or   manufacture  of   the  product,   and  the

                             -12-                                         -12-

manufacturing defect might be generic or a defect in a single

item. E.g., Hayes v.  Ariens Co., 462 N.E.2d 273,  277 (Mass.                                            

1984).   Whether such claims are preempted may depend both on

their precise  make-up and on the underlying  statute.  Under

FIFRA,  the situation  is complicated  by the  fact that  the

preemption clause refers only to labeling and packaging while

the statute empowers  the agency to  regulate the product  as

well as the description.  7 U.S.C.   136a(a).

     In all  events, merely  to call  something  a design  or                                                

manufacturing  defect  claim  does  not  automatically  avoid

FIFRA's explicit  preemption clause.    In re  DuPont-Benlate                                                                         

Litigation, 859  F. Supp. 619,  623-24 (D.P.R. 1994).   Here,                      

Vermont  Log's only  elaborated claim  under this  heading is

that  Woodlife  was  defectively  designed   or  manufactured

because  it  was  foreseeable  that  it  would  be   used  on

residences and it was unfit for this use.  But  this claim is                                                    

effectively no more  than an  attack on the  failure to  warn

against residential use and therefore is a preempted claim.

     This  certainly does  not mean  that every  misdesign or

mismanufacturing claim would be debarred by section 136v.  In

a  batch  of  properly  made  products,  one  item  might  be

defective  or  tainted;    or  perhaps  one  might  design  a

pesticide that,  while  properly approved  and  labeled,  was

unduly dangerous for any legitimate use.  In the former case,

it  is hard  to  see  why  FIFRA  preemption  would  even  be

                             -13-                                         -13-

arguable;  in the latter, there  would be at  most an implied                                                                         

preemption  claim, based  not on  section  136v but  on EPA's

approval of  the product; and  it is  by no means  clear that

such a preemption claim would prevail.4

     However, in  this instance, Vermont Log  has provided no

hint  whatever  of  how  Woodlife  has  been  misdesigned  or

mismanufactured  beyond  Vermont  Log's suggestion--which  we

regard as  a disguised  labeling claim--that the  product was

not  fit  for  residential  use.    Vermont  Log's  position,

implicit  in its brief and explicit in oral argument, is that

no  such  disclosure or  elaboration  was  required.   It  is

enough, it contends, that its complaint alleged misdesign and

mismanufacture in general terms and that not every such claim

is automatically preempted.

     If the Woodlife manufacturers had squarely argued a lack

of  evidence in  their motion  for summary  judgment, Vermont

Log's  position could be rejected  out of hand.   Vermont Log

bears the burden of  proof at trial and, under  Celotex Corp.                                                                         

v. Catrett, 477 U.S.  317, 322-23 (1986), it would  take very                      

little  in  the way  of a  negative  averment at  the summary

judgment  stage  to  require  Vermont  Log  to  identify  its

evidence--trialworthy  evidence  of a  specific  misdesign or

                                                    

     4See Cipollone, 112 S.  Ct. at 2622-23.   Compare Mendes                                                                         
v.  Medtronic,  18 F.3d  13 (1st Cir.  1994) (Medical  Device                         
Act), with  In re DuPont-Benlate-Litigation, 859  F. Supp. at                                                       
622-23 (FIFRA).

                             -14-                                         -14-

manufacturing defect which  was not  a disguised  mislabeling

claim.   Mottolo v. Fireman's Fund Ins. Co., 43 F.3d 723, 725                                                       

(1st Cir. 1995).

     Whether  Vermont Log  got such due  notice of  a Celotex                                                                         

challenge could be  debated.   On the one  hand, the  summary

judgment  motion was  cast primarily  in abstract  preemption

terms; on the other hand, Vermont Log could at any time  have

explained to the district court  just what kind of  misdesign                     

or  manufacturing defect claim it was making over and above a

recast  version of its preempted labeling claim.  As is often

the case, the answer is to be found more in common sense than

categorical rules.

     If  we  thought  that  Vermont Log  had  been  genuinely

misled, we would remand to allow it to identify its misdesign

or   mismanufacture   claim    and   require   the   chemical

manufacturers to  formulate  a new  summary judgment  motion.

Indeed, we might be tempted to follow this course even now if

Vermont Log had troubled to tell us just what specific design

or manufacturing defect it plausibly suspected  or how it had

been  denied   a  promising   opportunity  to   unearth  this

information through discovery.  But at oral argument our most

persistent  questions  on  the  subject were  met  only  with

generalities.

     It is too late  in the day for such gambits.   It is one

thing at the outset of a case to ask for indulgence to pursue

                             -15-                                         -15-

initial discovery; it is quite another  matter, on appeal and

after  five years, to ask for a reversal based on theoretical

possibilities but without any effort  to explain how a remand

might  bear fruit.  If there are unpreempted claims of design

or  manufacturing defect,  Vermont Log  has  never adequately

identified  them,   let  alone  pointed  to   any  supporting

evidence.

     Indemnification.   As  already explained,  Vermont Log's                                

third-party complaint did explicitly request contribution; in

fact, its negligence counts  were asserted not as independent

claims for full recovery but merely as the basis for pro rata

contribution  under the  Massachusetts statute.   Conversely,

although Vermont Log now  speaks of "indemnification" claims,

the third-party complaint nowhere refers  to indemnification,

although  the  warranty counts  seek  the  same damages  that

indemnification might provide.

     Traditionally, indemnification has comprised  a distinct

body of doctrine that, to put the matter too crudely, permits

a vicariously  liable party (e.g., an  innocent principal) to                                             

obtain  reimbursement   from  a   culpable  party   (e.g.,  a                                                                     

blameworthy agent) whose conduct  gave rise to the liability.

P. Keeton, Prosser  and Keeton on Torts   51,  at 341-44 (5th                                                   

ed.  1984); Decker v. Black  and Decker Mfg.  Co., 449 N.E.2d                                                             

641,  644-45   (Mass.  1983).     Thus,  indemnification  may

                             -16-                                         -16-

sometimes  be  available even  when no  other direct  tort or

contract claim will lie.

     On  appeal, Vermont  Log  says as  an alternative  final

argument that Judge  Zobel erred in  rejecting its "claim  of

indemnity" on  the ground that "[i]demnity  is permitted only

where  one does  not join  the negligent act   .  . .  ."  We

confess ourselves puzzled by  Judge Zobel's ruling; while the

principle may be  sound, it  is far from  clear that  Vermont

Log's  culpability in  this case--at  least on  some warranty

theories asserted by  the Greniers--is of  a kind that  would

automatically  preclude an  indemnification claim  by Vermont

Log against DAP and Champion.

          Yet even if we  assume (dubitante) that Vermont Log                                                       

has asserted a separate  claim for indemnification and assume

further that it is not barred from indemnification by its own

participation in the  wrong, a crucial obstacle remains.  The

body of  doctrine comprising indemnification  law varies from

state  to  state; but  in  Massachusetts, an  indemnification

claim does  require a  showing of  fault on  the part of  the                                                    

parties   or   parties   against    whom   the   demand   for

indemnification is leveled.  Stewart v. Roy Bros., 265 N.E.2d                                                             

357, 365 (Mass. 1970).

     Here, the only allegations of  fault made by Vermont Log

against DAP  and Champion are  the charges of  negligence and

breaches of  warranty made  in counts  III-VI of the  amended

                             -17-                                         -17-

third-party complaint.   We have already  found these charges

to be inadequate, some because of federal preemption and some

because  they are  both too  general and  wholly unsupported.

And if these  claims are themselves  inadequate, there is  no

foundation for a showing of fault as to DAP and Champion that

would permit Vermont Log to claim indemnification.          

     There is a  final point to be made  that is pertinent to

future cases of this kind.  Vermont Log has now placed itself

in  an  unhappy position  where  the  Greniers might  recover

against it while  it would  no longer  have recourse  against

those who supplied  it with Woodlife.  This  assumes, perhaps

fancifully, that the Greniers, or  at least the minors, might

structure and then  prove a  claim that managed  at the  same

time  to avoid  every  type of  preemption  and any  kind  of

defense  based on Vermont Log's own  possible ignorance.  But

the theoretical risk is there.

     This risk arises directly from  the entry of a  separate

final judgment  under Rule 54(b)  against Vermont Log  on its

third-party claims in advance  of the full resolution  of the

Greniers' first-party claims against Vermont Log.  If Vermont

Log had objected to a separate judgment in the district court

and appealed  on that issue in  this Court, we would  be very               

much open  to such an argument.  The reason is the overlap of

first-party  and  third-party claims  in  this  case and  the

resulting risk (in this case) of inconsistent results.

                             -18-                                         -18-

     But  Vermont Log has not made  this argument.  If it had

no objection to  the entry of a separate  judgment, certainly

the  district court  had  no obligation  to  withhold such  a

judgment.  Indeed, Vermont Log may have had tactical reasons,

unknown  to  us,  for  allowing the  uncoupling  of  the  two

complaints.  Our sole  reason for mentioning the point  is to

alert district courts  in future cases that such an objection

to a separate judgment may have significant force.

     Affirmed.                         

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