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Tendering Claims to Manufacturers, Suppliers

By Brian W. Fields

The birth of modern-day product liability law was arguably delivered in 1963 by the California Supreme Court in Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963). Today, product liability law is commonly understood to mean that all participants in the chain of distribution of a defective product are strictly liable for injuries caused by that product. Strict liability generally means that any seller in the distribution chain is liable if the product is defective, even if the seller was not responsible for making that product defective. There are a variety of different sellers in today's global economy that partially or completely assemble or manufacture their products and can be held responsible for defects even if not sued in the original action. Sellers in the distribution chain are vast and include manufacturers, suppliers, distributors, wholesalers, and retailers. Those lower in the distribution chain (i.e., those closer to the ultimate purchaser of the product) often seek defense and indemnity from upstream participants.

Products are ubiquitous. Mountains of paper have been written on a variety of issues unique to products cases since the Greenman decision. There appear to be few articles written, however, on the strategies for effectively tendering the defense and indemnity of products cases upstream to the manufacturer or supplier of the product. Tendering is a key component to almost any products case. This article discusses some practical considerations for making an effective tender and provides a sample tender letter.

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