Elec. Ins. Co. v. Freudenberg-Nok, Gen. P'ship.

487 F. Supp. 2d 894



An action for breach of sales contract accrues when tender of delivery is made.


The action arose out of the sale and delivery of allegedly defective products by defendant to another company. Plaintiff provided product liability insurance to the company and pursued the action as subrogee to the insured's interests. The subrogee sought indemnification from defendant for amounts it paid on behalf of its insured in settlement of property damage claims asserted by homeowners who purchased dishwashers that were equipped with an allegedly faulty pump seal assembly manufactured by defendant. The subrogee originally asserted two causes of action against defendant: a claim for contractual indemnity, and a claim for common law indemnity. The district court determined that the common-law indemnity claims were governed by the five-year limitations. In its motion for reconsideration, the subrogee argued that the district court erred in dismissing the contractual indemnity claim because it incorrectly identified that claim as a breach-of-warranty claim.


Did the district court correctly dismiss the plaintiff’s contractual indemnity claim under the Kentucky statute of limitations?




Defendant’s promise to “protect, defend, hold harmless, and indemnify GE against any losses caused by its allegedly defective products provides only a remedy; it is not a guarantee of the performance of the products for any specific time period. Thus, the plaintiff has suffered no prejudice by being held to the general rule that an action for breach of sales contract accrues when tender of delivery is made.

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