MacDONALD v. SMITHKLINE BEECHAM CORP

VOLTERRA, JUSTICE.

The defendant, Sandoz Agro, Inc. ("Sandoz"), brings this motion for summary judgment on its cross-claim for indemnification against defendant, Enforcer Products, Inc. ("Enforcer"). Sandoz claims that (1) it has asserted a cross-claim for indemnification, and (2) that the May 5, 1989 License and Supply Agreement ("Agreeement") between Sandoz and Enforcer requires indemnification and that Enforcer assume Sandoz's defense. Enforcer, however, contends that this Court should not reach the merits of these claims as the Agreement contains a forum selection clause, or, that under the Agreement's choice of law provisions that this Court find for Enforcer on the cross-claim. Sandoz's motion for summary judgement on its cross-claim for indemnification is DENIED , instead summary judgment is ALLOWED for Enforcer and Sandoz's cross-claim is dismissed without prejudice.

On May 5, 1989, Zoecon Corporation ("Zoecon"), the predecessor of Sandoz, and Enforcer entered into an Agreement in which Enforcer agreed to become a distributor of products containing Zoecon's patented insect growth regulator known as "Methoprene." Section 7.2 of the Agreement contained an indemnification provision and section 15.1 contained a choice of law and forum selection clauses.

The plaintiffs alleged that Enforcer incorporated Methoprene into its Flea Fogger, and then distributed and sold the Flea Fogger to the defendant, The Produce Barn. The Produce Barn then sold the "Enforcer" Flea Foggers to the Allen family on October 7, 1992. The decedent, Margaret Allen, then used them in the basement of her home on October 9, 1992 and died later that day.

The plaintiffs allege that the decedent died when she inhaled the chemical ingredients of an "Enforcer" flea fogger that she used in her home on October 9, 1992. The plaintiff alleges in her complaint that Enforcer and Sandoz, as well as other named defendants, are liable for the decedent's death under various theories of products liability.

Summary judgment shall be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c); Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226, 232 (1997). The facts presented will be examined in a light most favorable to the nonmoving party. See National Ass'n of Gov't Employees v. Central Broadcasting Corp., 379 Mass. 220, 231 (1979). "Summary judgment, when appropriate, may be rendered against the moving party." Vickodil v. Lexington Ins. Co., 412 Mass. 132, 138 (1992), quoting Mass.R.Civ.P. 56(c).

"Where the parties have expressed a specific interest as to the governing law, Massachusetts courts will uphold the parties' choice as long as the result is not contrary to public policy . . . and as long as the designated State has some substantial relation to the contract." Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 260 (1977). In section 15.1 of their agreement, Enforcer and Zoecon expressed an intent that Texas law govern the agreement's "construction, performance and validity." As neither party has argued that application of Texas law would violate Massachusetts public policy or that Texas lacks substantial relation to the contract we shall interpret the agreement according to the law of that State. See id.

Texas will enforce a forum selection clause provided that (1) the parties have contractually consented to submit to the exclusive jurisdiction of another state, and (2) the other state recognizes the validity of such provisions. See Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 70 (Tex.App.-Dallas 1996). Additionally, a forum selection clause agreed to by the parties to a contract is prima facie enforceable unless the party contesting the forum selection clause establishes a compelling reason not to enforce it. See Abacan Technical v.Global Marine Intern., 994 S.W.2d 839, 843 (Tex.App.-Houston 1999). Texas courts, however, will not enforce a forum selection clause where the interests of the witnesses and of the public strongly favor jurisdiction in a forum other than that which the parties have selected. See Accelerated Christian, 925 S.W.2d at 71.

In the instant case, Sandoz failed to contest the forum selection clause's prima facie validity on one of the four bases given in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-11 (1972). See Abacan Technical, 994 S.W.2d at 842. Additionally, Sandoz failed to demonstrate in papers and argument that the interests of the witnesses or the public would also favor a different jurisdiction. Therefore, Texas would enforce this forum selection clause because (1) Enforcer and Zoecon consented to jurisdiction in Dallas County over "[a]ny dispute, claim, litigation, action or suit which may arise in connection with this agreement," (2) Texas recognizes the validity of such a clause, and (3) Sandoz failed to contest the clause's prima facie validity and failed to show that the interests of witnesses and public favor hearing these issues in Massachusetts.

Accordingly, it is hereby ORDERED that Sandoz's motion for summary judgment be DENIED because this Court lacks jurisdiction over this cross-claim, and that summary judgment be ALLOWED for Enforcer and that Sandoz's cross-claim for indemnification be dismissed without prejudice.

_____________________________ Vieri Volterra Justice of the Superior Court

Dated: May 1, 2000