Baker Sterchi Obtains Dismissal under Missouri's Innocent Seller Statute

Baker Sterchi lawyers obtained dismissal of their national food distributor client under Missouri’s “innocent seller statute.” Plaintiff alleged personal injuries related to consumption of a chicken meal that contained a chicken bone, which he claimed became lodged in his throat and resulted in multiple surgeries. Plaintiff originally named the restaurant where the meal was ordered as a defendant. The restaurant then sought and was granted leave to file a third-party petition against the purported manufacturer of the chicken. Plaintiff followed suit and filed an Amended Petition asserting a claim against the purported manufacturer and also added claims based on breach of warranty and negligence against our client, the distributor. We preserved the innocent seller defense in our answer by pleading R. S. Mo. §537.762, the “innocent seller statute,” as an affirmative defense on the grounds that liability against the distributor was solely based on its status as a seller in the stream of commerce and should be dismissed. 

In 1987, the Missouri legislature enacted the “innocent seller statute”.  A final report issued in January 1987 by the Missouri Interim Task Force on Liability Insurance indicates that the legislation was designed as a method by which sellers may be released from products liability suits at an early stage of the litigation. § 537.762 states in pertinent part:

A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section.  This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff’s claim.              

Thus, a seller wishing to avail itself of the statute must establish two things. First, the asserted liability must be based solely upon its status as a seller in the stream of commerce. Second, a defendant from whom total recovery may be had must be before the court.

There was a question of fact as to the identity of the manufacturer of the chicken at issue, which had to be resolved before a motion to dismiss could be filed. Through discovery this entity was identified, and the restaurant brought this “new” manufacturer into the case. Once the proper manufacturer was before the court, we moved to dismiss under the innocent seller statute. We satisfied the first prong by establishing that the distributor played no role in the manufacturing, production, testing or individual packaging of the chicken. Its only role was distributing chicken to the restaurant.  While plaintiff asserted various product liability claims against the distributor, all were based solely upon its status as a seller.  The second prong was satisfied because two defendants were before the court from whom total recovery could be had, the restaurant and the proper manufacturer.  We anchored this argument to the declaration page of the restaurant’s commercial general liability policy and the Hold Harmless Agreement between the manufacturer and the distributor. Under this agreement, the manufacturer had contractually agreed to maintain insurance coverage for liability claims, including product liability claims for both the manufacturer and the distributor.