50 State Compendium of Distributor Statutes

December 2017
Jenni L. Young


While sellers and distributors of products can often be held liable in product liability actions as part of the chain of distribution, some states have passed legislation to protect sellers and distributors. The legislation takes a variety of forms, with some states providing statutory indemnification to the seller or distributor from the product manufacturer. Some states have created a procedure allowing dismissal of sellers and distributors, assuming certain factors are met. Other states provide immunity where the seller or distributor merely sold the product “as is” in a sealed container. Finally, some states simply bar strict liability claims to be filed against sellers or distributors. This is the 2017 50 State Compendium of those Distributor Statutes.

Alabama

Statute: Code of Ala. §6-5-501 and §6-5-521 (2011)

A defendant alleged to be liable as a distributor of a product may defend an action brought under the Alabama Extended Manufacturer’s Liability Doctrine by affirmatively showing that it 1) did not contribute to the alleged defective condition, 2) had no knowledge of the alleged defective condition, and 3) had no opportunity superior to that of the consumer or user to inspect the product. However, if a claimant cannot identify the manufacturer of the product after due diligence, they may maintain a product liability action against the distributor. Code of Ala. §6-5-521.

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Alaska

Statute: None

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Arizona

Statute: A.R.S. §12-681(9) & A.R.S.  §12-684 (2004)

Under Arizona’s Product Liability Statute, a “seller” is defined as “a person or entity, including a wholesaler, distributor, retailer or lessor, that is engaged in the business of leasing any product or selling any product for resale, use or consumption.” A.R.S. §12-681(9). The Statute provides that, “[i]n any product liability action where the manufacturer refuses to accept a tender of defense from the seller, the manufacturer shall indemnify the seller for any judgment rendered against the seller and shall also reimburse the seller for reasonable attorneys' fees and costs incurred by the seller in defending such action, unless…[t]he seller had knowledge of the defect in the product [or] [t]he seller altered, modified or installed the product, and such alteration, modification or installation was a substantial cause of the incident giving rise to the action, was not authorized or requested by the manufacturer and was not performed in compliance with the directions or specifications of the manufacturer.” A.R.S. §12-684(A). If a judgment is then rendered in favor of the plaintiff and a seller is granted indemnity against a manufacturer, the plaintiff must first attempt to satisfy that judgment against the manufacturer or the manufacturer’s liability insurance carrier before attempting to collect the judgment from the seller or the seller's liability insurance carrier. A.R.S. §12-684(B).

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Arkansas

Statute: None


California

Statute: None

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Colorado

Statute: Colo. Rev. Stat. §13-21-401 & §13-21-402 (2003)

A product liability action cannot be maintained against a seller of a product unless (1) the seller is also a manufacturer of the product (or a part of the product which gives rise to the case) or (2) jurisdiction cannot be obtained over the manufacturer. Colo. Rev. Stat. §13-21-402(1), (2). For purposes of product liability actions, the term “manufacturer” includes a seller who: has actual knowledge of a defect, creates and furnishes a manufacturer with specifications relevant to the alleged defect for producing the product, exercises some significant control over the manufacturing process, or alters or modifies a product in any significant manner before it is sold. Colo. Rev. Stat. §13-21-401(1). A seller is not considered a manufacturer merely because he places a private label on a product, so long as the seller did not specify how the product should be produced or significantly control the manufacturing process, and the seller discloses who the actual manufacturer is. Colo. Rev. Stat. §13-21-401(1).

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Connecticut

Statute: None

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Delaware

Statute: 18 Del. Code §7001

The “Sealed Container Defense” is available to a seller who receives a product in a sealed container and resells it in an unaltered form. The seller must not have knowledge of or discovered the defect, participated in the design of the product, alter the product, nor received noticed of the defect from purchasers of similar products. 18 Del. C. §7001(b). However, the defense is not available if the claimant is unable to identify the manufacture through reasonable effort, the manufacturer is insolvent, or the seller made express warranties. 18 Del. C. §7001(c). 

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District of Columbia

Statute: None

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Florida

Statute: None

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Georgia

Statute: Ga. Code Ann. §51-1-11.1(b)(1987)

Strict liability applies only to those actively involved in the design, specification or formulation of a defective final product or of a defective component part which failed during use of a product and caused injury. Ga. Code Ann. §51-1-11(b). A seller is shielded from strict liability in Georgia, because he is not a manufacturer under Georgia law. Ga. Code Ann. §51-1-11.1(a).

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Hawaii

Statute: None

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Idaho

Statute: Idaho Code §6-1407 (2005)

Idaho Code §6-1407(1) provides that product sellers other than manufacturers shall not be liable where the product seller acquires the product in a sealed package or container and sells the product in the same sealed package or container. Additionally, in the absence of express warranties to the contrary, product sellers other than manufacturers shall not be subject to liability in circumstances where the product sellers do not have a reasonable opportunity to inspect the product in a manner which would or should, in the exercise of reasonable care, reveal the existence of the defective condition which is in issue. Idaho Code §6-1407(1). In an action where the liability of the product seller is limited pursuant to Idaho Code §6- 1407(1), any manufacturer who refuses to accept a tender of defense from the product seller shall indemnify the product seller for reasonable attorney’s fees and costs incurred by the product seller in defending such action. Idaho Code §6-1407(2). The limitation of liability for product sellers, other than manufacturers, created by Idaho Code §6-1407(1) shall not apply in certain circumstances, which are enumerated in Idaho Code §§6-1407(1)(a)-(e). However, the limitation of liability shall not apply if: (a) The product seller had knowledge or reason to know of the defect in the product; (b) The product seller altered, modified, or installed the product, and such alteration, modification or installation was a substantial proximate cause of the incident giving rise to the action, was not authorized or requested by the manufacturer and was not performed in compliance with the directions or specifications of the manufacturer; (c) The product seller provided the plans or specifications for the manufacture or preparation of the product and such plans or specifications were a substantial cause of the product’s alleged defect; (d) The product seller is a wholly-owned subsidiary of the manufacturer, or the manufacturer is a wholly-owned subsidiary of the product seller; (e) The product seller sold the product after the expiration date placed on the product or its package by the manufacturer. Idaho Code §6-1407(1).

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Illinois

Statute: 735 ILCS 5/2-621 (1979)

Section 5/2-621 of the Illinois Code of Civil Procedure allows a strict liability claim against a non-manufacturing defendant to be dismissed, once the non-manufacturing defendant has certified that: (1) it had no actual knowledge of the defect in the product that caused the injury; (2) it was not a manufacturer of the product that caused the injury; (3) it exercised no significant control over the design or manufacture of the product and did not provide instructions or warnings to the manufacturer regarding the alleged defect in the product; and (4) it has certified the correct identity of the manufacturer of the product allegedly causing injury. 735 ILCS 5/2-621(c). On the other hand, a non-manufacturing defendant may be brought back into the case on a strict liability claim that was previously dismissed if: (1) the manufacturer successfully raises a statute of limitations statute of repose defense; (2) the identity of the manufacturer given to the plaintiff by the certifying defendant was incorrect; (3) the manufacturer no longer exists or cannot be subject to service of process; or (4) the manufacturer is unable to satisfy any judgment or reasonable settlement agreement. 735 ILCS 5/2-621(b). 

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Indiana

Statute: Ind. Code Ann. §34-20-2-3

A product liability action may not be maintained against the seller of a product unless the seller is a manufacturer of the product or a component part. Ind. Code Ann. §34-20-2-3. However, if the court is unable to hold jurisdiction over a manufacturer, the principal distributor or seller may be considered the manufacturer. Ind. Code Ann. §34-20-2-4. 

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Iowa

Statute: Iowa Code §613.18 (2011)

Non-manufacturers are immune from suit for strict liability or breach of implied warranty of merchantability in cases which arise “solely from an alleged defect in the original design or manufacture of the product.” Iowa Code §613.18(1)(a)(2011). Non-manufacturers are not liable for damages assessed in strict liability cases or in cases involving an alleged breach of the implied warranty of merchantability upon proof that the manufacturer is subject to jurisdiction of the Iowa state courts and has not been judicially declared insolvent. Iowa Code §613.18(1)(b)(2011). A party who is both a retailer and an assembler of a product is not liable for damages based upon strict liability in tort or upon breach of the implied warranty of merchantability arising from a design or manufacturing defect if: (1) the assembly of the product is not causally related to the alleged injury; (2) the manufacturer is subject to the jurisdiction of the Iowa courts; and (3) the manufacturer has not been judicially declared insolvent. Iowa Code §613.18(2)(2011). Where the claimant certifies that the manufacturer of the product is not yet identifiable, the statute of limitations against such manufacturer is tolled until such time as discovery in the case has identified the manufacturer. Iowa Code §613.18(3)(2011).  

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Kansas

Statute: Kan. Stat. Ann. §60-3306

A product seller shall not be subject to liability is the seller establishes that: (1) the seller had no knowledge of the defect; (2) could not have discovered the defect; and (3) was not a manufacturer of the product. Kan. Stat. Ann. §60-3306(a). However, the product seller must also prove that the manufacturer of the product or component is subject to service of process and any judgment against the manufacturer would be reasonably certain of being satisfied. Kan. Stat. Ann. §60-3306(a). 

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Kentucky

Statute: Ky. Rev. Stat. Ann.  §411.340 (1978)

A wholesaler, distributor or retailer shall not be liable in any product liability action, if the manufacturer is identified and subject to jurisdiction of the court and upon showing that the product was sold in its original manufactured condition or package. Ky. Rev. Stat. Ann. §411.340.  

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Louisiana

Statute: La. Rev. Stat. Ann. §9:2800.54 (1988)

Generally, a non-manufacturing seller is not liable for the harm caused by a product. Only manufacturers are liable for damages caused by an unreasonably dangerous characteristic of a product when such damage arose from a reasonably anticipated use of the product. La. Rev. Stat. §9:2800:54(A). However, there are two instances in which a seller may be liable for the harm cause by a product: (1) a seller may be considered a manufacturer if he exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage; and (2) a non-manufacturing seller vouches for the product by holding it out as his own. La. Rev. Stat. §9:2800.53(1)(b).

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Maine

Statute: None

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Maryland

Statute: Md. Code Ann., Cts. & Jud. Proc. §5-405 (1982)

Maryland statutory law provides a “sealed container” defense for sellers. Md. Code Ann., Cts. & Jud. Proc. §5-405. To successfully invoke the “sealed container” defense, a seller must establish each of these five elements: (1) The product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form; (2) The seller had no knowledge of the defect; (3) The seller in the performance of the duties he performed or while the product was in his possession could not have discovered the defect while exercising reasonable care; (4) The seller did not manufacture, produce, design or designate the specifications for the product which conduct was the proximate and substantial cause of the claimant’s injury; and (5) The seller did not alter, modify, assemble, or mishandle the product while in the seller’s possession in a manner which was the proximate and substantial cause of the claimant’s injury. Id. at §5-405(b). Moreover, a seller must also demonstrate that none of the following apply: (1) The manufacturer is not subject to service of process under the laws of this State or the Maryland Rules; (2) The manufacturer has been judicially declared insolvent in that the manufacturer is unable to pay its debts as they become due in the ordinary course of business; (3) The court determines by clear and convincing evidence that the claimant would be unable to enforce a judgment against the product manufacturer; (4) The claimant is unable to identify the manufacturer; (5) The manufacturer is otherwise immune from suit; or (6) The seller made any express warranties, the breach of which were the proximate and substantial cause of the claimant's injury. If a seller successfully establishes each of these elements, than the seller is entitled to a favorable entry of summary judgment for any direct or third-party claims. Id. at §5-405(d)(1). The “sealed container” defense, however, will not apply where there exists an express indemnity agreement. Id.  

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Massachusetts

Statute: None

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Michigan

Statute: MCL 600.2947(6)(1996)

A nonmanufacturing seller is not liable under a product liability theory unless the seller breached an express warranty or affirmatively failed to exercise reasonable care which was a proximate cause of the plaintiff’s injuries. MCL 600.2947(6).    

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Minnesota

Statute: Minn. Stat. §544.41 (1980)

Minnesota’s “seller’s exception-statute,” allows for the dismissal of strict liability claims against entities in the distribution chain of a defective product that did nothing more than “pass through” a previously defective product. Minn. Stat. §544.41. In relevant part, that statute states that, in strict liability cases against any defendant who is not the manufacturer, “the party shall…file an affidavit certifying the correct identity of the manufacturer of the product,” and if that manufacturer is (or becomes) a defendant in the case, “the court shall order the dismissal of a strict liability…claim against the certifying defendant.” Id. at subd. 1, 2. The statute also lists a variety of circumstances under which plaintiff may petition to vacate the dismissal, id. at subd. 2, and circumstances under which it should be denied in the first place. Id. at subd. 3. These circumstances include where the defendant has exercised some significant control over the design or manufacture, had actual knowledge of the defect in the product which caused the injury, or where the manufacturer no longer exists or is unable to satisfy any judgment.

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Mississippi

Statute: Miss. Code Ann. §11-1-63 (2014)

Mississippi has an “innocent seller” provision. The seller of a product other than the manufacturer shall not be liable unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; or the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or the seller had actual or constructive knowledge of the defective condition of the product at the time he supplied the product. Miss. Code Ann. §11-1-63(h). Mississippi Code §11-1-63(g) provides: The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same; or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought. Miss. Code Ann. §11-1-63(g). The seller must give notice to the manufacturer of the suit within 90 days that the complaint is served on the seller.

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Missouri

Statute: Mo. Rev. Stat. §537.762 (1987)

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 in which another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff’s claims. Mo. Rev. Stat. §537.762.1 & .2 (2000). A defendant may move for dismissal under the statute within the time for filing an answer or other responsive pleading unless permitted by the court at a later time for good cause shown. Id. §537.762.3. The motion must be accompanied by an affidavit which shall be made under oath and shall state that the defendant is aware of no facts or circumstances upon which a verdict might be reached against him, other than his status as a seller in the stream of commerce. Id. §537.762.3. The parties have sixty days to conduct discovery on the issues raised in the motion and the affidavit. Id. §537.762.4. If no party comes forward at the hearing on the motion with evidence of facts which would render the defendant seeking dismissal liable on some basis other than his status as a seller in the stream of commerce, the court shall dismiss without prejudice the claim as to that defendant. Id. §537.762.5. An order of dismissal is interlocutory until final disposition of plaintiff’s claim by settlement or judgment and may be set aside for good cause shown at any time prior to disposition. Id. §537.762.7.

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Montana

Statute: None

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Nebraska

Statute: R.R.S. Neb. §25-21,181 (1978)

No product liability action based on the doctrine of strict liability in tort shall be commenced or maintained against any seller or lessor of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless the seller or lessor is also the manufacturer of the product or the part thereof claimed to be defective. R.R.S. Neb. §25-21,181.

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Nevada

Statute: None

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New Hampshire

Statute: None

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New Jersey

Statute: N.J. Stat. §2A:58C-9 (1995)

The Product Liability Act defines “product seller” as any person who “sells; distributes; leases; installs; prepares or assembles a manufacturer’s product according to the manufacturer's plan, intention, design, specifications or formulations; blends; packages; labels; markets; repairs; maintains or otherwise is involved in placing a product in the line of commerce.” N.J.S.A. §2A:58C-8. It relieves a product seller of all strict liability claims as long as the product seller files an affidavit correctly identifying the manufacturer of the product which allegedly caused the damage. N.J.S.A. §2A:58C-9(b). A product seller can be found strictly liable if the plaintiff does not have recourse against the manufacturer either because the court has no personal jurisdiction over the manufacturer or the manufacturer is judgment proof. N.J.S.A. §2A:58C-9(c). In addition, a product seller may still be liable if it: (1) exercised some significant control over the allegedly defective product; (2) knew or should have known of the defect; or (3) created the defect. §N.J.S.A. 2A:58C-9(d).  

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New Mexico

Statute: None

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New York

Statute: None

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North Carolina

Statute: N.C. Gen. Stat. §99B-2 (1989)

No product liability action, except an action for breach of express warranty, shall be commenced or maintained against any seller when the product was acquired and sold by the seller in a sealed container or when the product was acquired and sold by the seller under circumstances in which the seller was afforded no reasonable opportunity to inspect the product in such a manner that would have or should have, in the exercise of reasonable care, revealed the existence of the condition complained of, unless the seller damaged or mishandled the product while in his possession; provided, that the provisions of this section shall not apply if the manufacturer of the product is not subject to the jurisdiction of the courts of this State or if such manufacturer has been judicially declared insolvent. N.C. Gen. Stat. §99B-2(a) (1989)

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North Dakota

Statute: N.D. Cent. Code, §28-01.3-04 (1993); N.D. Cent. Code, §28-01.3-05 (1993)

In any products liability action maintained against a nonmanufacturing seller, the can file an affidavit certifying the correct identity of the manufacturer of the product. N.D. Cent. Code, §28-01.3-04 (1). The court shall then order the dismissal of the claim against the seller, unless the plaintiff can show any of the following: (1) the seller exercised some significant control over the design or manufacture of the product; (2) the seller had knowledge of the defect; or (3) the seller created the defect. N.D. Cent. Code, §28-01.3-04 (2). Additionally, the plaintiff may move to vacate the order of dismissal if (1) the statute of limitation bars an action against the manufacturer or (2) the identity of the manufacturer given to the plaintiff by the seller was incorrect. N.D. Cent. Code, §28-01.3-04 (3). North Dakota also requires the manufacturer to indemnify the seller. N.D. Cent. Code, §28-01.3-05.

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Ohio

Statute: Ohio Rev. Code Ann. 2307.78 (2001)

A supplier is subject to liability for compensatory damages in a products liability claim only if the claimant establishes, by a preponderance of the evidence, either one of two statutory grounds for liability. R.C. 2307.78(A). First, that the supplier’s negligence was a proximate cause of the harm. R.C. 2307.78(A)(1). Second, the product in question did not conform to a representation made by the supplier and that misrepresentation was a proximate cause of harm. R.C. 2307.78(A)(2). A supplier is liable under the second statutory ground for liability even though the supplier did not act fraudulently, recklessly, or negligently in making the representation. R.C. 2307.78(A)(2). Further, a supplier may be held liable as though it were the manufacturer of the product if the manufacturer would otherwise be liable and a statutory condition is met (e.g., the manufacturer of that product is not subject to judicial process in Ohio; the supplier in question owns or, when it supplied that product, owned, in whole or in part, the manufacturer of that product). R.C. 2307.78(B). 

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Oklahoma

Statute: None

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Oregon

Statute: None

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Pennsylvania

Statute: None

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Rhode Island

Statute: None

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South Carolina

Statute: None

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South Dakota

Statute: Ohio Rev. Code Ann. 2307.78 (2001)

No cause of action based on the doctrine of strict liability in tort may be asserted or maintained against any distributor, wholesaler, dealer, or retail seller of a product which is alleged to contain or possess a latent defective condition unreasonably dangerous to the buyer, user, or consumer unless said distributor, wholesaler, dealer, or retail seller is also the manufacturer or assembler of said product or the maker of a component part of the final product, or unless said dealer, wholesaler, or retail seller knew, or, in the exercise of ordinary care, should have known, of the defective condition of the final product. Nothing in this section shall be construed to limit any other cause of action from being brought against any seller of a product. S.D.C.L. §20-9-9. 

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Tennessee

Statute: Tenn. Code Ann. §29-28-106 (2011)

No action shall be maintained against a seller unless: (1) the seller exercised control over the design, etc. of the product; (2) the seller altered or modified the product which caused the defect; (3) the seller gave an express warranty; (4) the manufacturer is not subject to service of process; or (5) the manufacturer has been judicially declared insolvent. Tenn. Code Ann.§29-28-106. 

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Texas

Statute: Tex. Civ. Prac. & Rem. Code § 82.002 (1993)

Texas’ product liability statute provides 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.” Tex. Civ. Prac. & Rem. Code §82.002(a).

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Utah

Statute: None

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Vermont

Statute: None

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Virginia

Statute: None

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Washington

Statute: Rev. Code Wash. (ARCW) §7.72.040 (1991)

Generally, a distributor or product seller is liable only if the plaintiff’s harm was proximately caused by the negligence of the product seller, or breach of an express warranty, or intentional misrepresentation about the product by the product seller. ARCW §7.72.040(1). A product seller or distributor shall have the liability of a manufacturer if: (a) there is no solvent manufacturer; (b) the court determines it is highly probable that plaintiff would be unable to collect on a judgment against the manufacturer; (c) the seller and manufacturer are subsidiaries of each other; (d) the seller provided plans or specifications which were the cause of the defect; or (e) the seller marketed the product under its brand name or trade name. ARCW §7.72.040(2).

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West Virginia

Statute: None

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Wisconsin

Statute: Wis. Stat. §895.047 (2011)

A seller or distributor of a product is not liable in a strict liability case unless the claimant can prove 1) the seller or distributor contractually assumed the manufacturer’s duties; 2) that the manufacturer nor its insurer is subject to service of process within the state; or 3) the claimant would be unable to enforce a judgment against the manufacturer or its insurer. Wis. Stat. §895.047(2)(a). If the manufacturer or its insurer submits itself to the jurisdiction of the court in which the suit is pending, the seller or distributor shall be dismissed. Wis. Stat. §895.047(2)(b). The statute expressly states that it does not apply to negligence cases or breach of warranty cases. Wis. Stat. §895.047(6).  

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Wyoming

Statute: None

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