law indemnification against ABC, as each party would be independently liable to plaintiff for its own negligence. See, e.g. Historic Cohoes, 879 F.Supp. at 228 (finding that the parties against whom a negligence claim was asserted may not seek common law indemnification since if they are held liable, it will be because they were found to have been at least partly responsible for the losses in question). However, in the event CVS ProCare is found liable to plaintiff solely for breach of the implied warranty of merchantability, and not as a result of any negligence on its part, such liability is truly vicarious and, thus, may support a claim for common law indemnification against ABC in the event ABC is found to have been actively negligent. See, e.g. Durabla Mfg., 992 F.Supp. at 660 (<HOLDING>). Accordingly, dismissal of CVS ProCare’s cross
holding that an implied warranty of merchantability does not create a labeling requirement different from or in addition to those mandated by fifra because the implied warranty of merchantability arises from the sale itself not from a state labeling regulation citation omitted holding that plaintiffdistributor stated a claim for common law indemnification against defendantsmanufacturers based on warranties of suitability and merchantability since liability under an implied warranty theory is truly vicarious holding that an action for breach of implied warranty of merchantability under the uniform commercial code is a product liability action within the meaning of the products liability act if as here the action is for injury to person or property resulting from a sale of a product holding a provision in a contract for sale of a tractor disclaiming implied warranties of merchantability and fitness was not sufficiently conspicuous recognizing common law right to indemnity when a partys liability is vicarious