On February 25, 1999, an explosion erupted at the Jahn Foundry in Springfield, Massachusetts, causing extensive damage to the building and sending twelve foundry workers to the hospital with severe burns. Three of the workers later succumbed to their injuries. The injured parties, together with the heirs of the deceased, brought personal injury and wrongful death actions against one of Jahn’s chemical suppliers, Borden Chemical, Inc. (Borden), alleging that a shipment of resin supplied by Borden had caused the explosion. In response to the allegations, Borden brought a third-party indemnification suit against Jahn Foundry, Inc. (Jahn), the owner of the foundry and purchaser of the resin, based on a clause in the resin sale contract.
To adjudicate the dispute, the trial court applied Article 2 of the Uniform Commercial Code (U.C.C. or Code) because the contract at issue constituted a sale of goods. The court granted summary judgment in favor of Jahn, holding that the indemnification provision was not part of the agreement between the parties. On appeal, Borden argued that the contract incorporated the indemnification clause because the same clause had appeared in previous contracts between the parties. According to Borden, Jahn failed to object to the clause each time it appeared in Borden’s invoices over the course of four years and dozens of separate transactions. Thus, Borden contended that Jahn’s silence over this period of time equated to implied acceptance of the additional terms or, at the very least, established that the terms did not constitute a material alteration to the contract. . . .