THE STATE OF SOUTH CAROLINA In The Supreme Court

Alice Hazel, as guardian ad litem for Jacob N., Respondent,

v.

Blitz U.S.A., Inc., Fred's Stores of Tennessee, Inc., Tiger Express Varnville LLC, and James Nix, Defendants,

Of Whom Fred's Stores of Tennessee, Inc. is the

Petitioner.

and

Melinda Cook, Respondent,

v.

Blitz U.S.A., Inc., Fred's Stores of Tennessee, Inc., Tiger Express Varnville, LLC, a nd James Nix, Defendants,

Of Whom Fred's Stores of Tennessee, Inc. is the

Petitioner.

Appellate Case No. 2019-000220

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Hampton County Perry M. Buckner III, Circuit Court Judge

Opinion No. 28016 Heard December 11, 2019 – Filed March 17, 2021AFFIRMED

Matthew Clark LaFave, Cr owe LaFave, LLC, of Columbia, for Petitioner.

Kathleen Chewning Barnes, Ba rnes Law Firm, LLC; Mark David Ball, Peters Murdaugh Parker Eltzroth & Detrick, PA, both of Hampton, for Respondent.

JUSTICE FEW: Petitioner Fred's Stores of Tennessee, Inc. 1 contends the circuit court erred by refusing to enjoin these laws uits under the terms of a bankruptcy court order and injunction entered in the bankruptcy proceedings of Blitz U.S.A., Inc. We find the circuit court correctly determ ined the bankruptcy court's order and injunction do not protect Fred's from these la wsuits. We remand to the circuit court for discovery and trial.

I. Alleged Facts and Procedural History

On November 5, 2010, James Nix poured kerosene from a gasoline can onto a burn pile in his yard. The kerose ne ignited, and the flame en tered the gas can through its unguarded pour spout. The gas can explode d and sprayed kerose ne and fire onto Nix's five-year-old son Jac ob, who was standing only a few yards away. Jacob suffered severe burn injuries to over 50% of his skin. Jacob has undergone numerous skin grafts and surgeries, but he conti nues to suffer from pain and limited range of motion. He has permanent scarring.

Blitz U.S.A., Inc. manufactured the gas can. Blitz gas cans have been involved in numerous other lawsuits involving burn injuries like Jacob's. 2 Blitz sought

1 The caption in the circuit court and co urt of appeals incorrectly identified the petitioner as Fred's, Inc. The correct na me is Fred's Stores of Tennessee, Inc.

2 See, e.g.

, Gomez v. Harbor Freight Tools USA, Inc. , 383 F. Supp. 3d 1376 (M.D. Ga. 2019); Thornton v. Blitz USA, Inc. , 850 F. Supp. 2d 1374 (S.D. Ga. 2011); Walker v. Blitz USA, Inc. , 663 F. Supp. 2d 1344 (N.D. Ga. 2009); Grubbs v. WalMart Stores, Inc. , Civ. A. No. 1:19-cv-02229-JM C, 2020 WL 3843635 (D.S.C. Julybankruptcy protection in the United States Bankruptcy Court for the District of

Delaware. In re Blitz U.S.A. Inc. , 475 B.R. 209 (Bankr. D. Del. 2012). According to the bankruptcy court, "Blitz spent millions of dollars to defend numerous product liability lawsuits alleging injuries sustained in the use of Blitz's gas cans. In part, the influx of litigation and rapidly escala ting defense costs led Blitz to seek bankruptcy protection." 475 B. R. at 211. Blitz filed th e action seeking bankruptcy protection on November 9, 2011. Id.

Blitz distributed the gas can involved in Jac ob's injury through Fred's, a retail store chain headquartered in Tenness ee. Fred's sold the gas can to a consumer at its store in the town of Varnville, in Hampton County, South Carolina. The explosion and fire that burned Jacob occurred at Nix's home in Hampton County.

On November 5, 2013, Jacob's aunt Alice Hazel, who is also his legal guardian, and Jacob's mother Melinda Cook, filed separate but almost id entical lawsuits in state court in Hampton County seeking damages fo r Jacob's injuries. Both plaintiffs asserted claims against Blitz on products lia bility theories of strict liability, breach of warranty, and negligence. Both plaintiffs asserted claims against Fred's for strict liability and breach of warranty based on the sa le of the allegedly defective gas can. Both plaintiffs also assert ed a claim against Fred's on a negligence theory based only on Fred's negligence, not based on the neg ligence of Blitz. This is the claim important to this appeal, and we will refer to it as "Haz el's claim."

Fred's moved to "permanently enjoin or a lternatively stay" the two lawsuits. Fred's claimed the Blitz bankruptcy order and injunction foreclosed any claims against third-party sellers like Fred's. Before the initial hearing on Fred's motion, the plaintiffs asked for—and the court grante d—permission to amend the complaints to withdraw any claims based on Blitz's conduct, and to allege against Fred's only

Hazel's claim. The circuit court later f iled a written order granting leave to amend the complaints, and denying Fred's motion to enjoin Hazel's claim. Fred's appealed the denial of the injunction to the court of appeals, which affirmed. Hazel v. Blitz

8, 2020). Our Westlaw search of "Blitz" and "gas can" or "gas container" found an additional eighteen lawsuits relating to Blitz's gas cans. See, e.g.

, Boldman v. Walmart Stores, Inc. , 754 F. App'x 148 (3d Cir. 2018); Smith ex rel. VanBrunt v.

Blitz U.S.A. Inc. , Civ. No. 11-1771 (RHK/LIB), 2012 WL 5413513 (D. Minn. Nov. 6, 2012); Purvis v. Blitz, U.S.A., Inc. , No. 7:11-cv-111 (HL), 2012 WL 645884 (M.D. Ga. Feb. 28, 2012).U.S.A., Inc. , 425 S.C. 361, 822 S.E.2d 338 (Ct. App. 2018). We granted Fred's petition for a writ of certiorari.

II. Analysis

Fred's motion to enjoin Hazel's claim, and its argument to this Court that the circuit court erred by denying it, is based on a 53-page orde r entered on January 30, 2014— with hundreds of pages of attachments—in the Blitz bankruptcy proceedings in

Delaware. The text of the order— without attachments—may be found at In re Blitz
U.S.A., Inc. , No. 11-13603 (PJW), 2014 WL 2582976 (Ba nkr. D. Del. Jan. 30, 2014). The attachment important to our analysis—t he "Debtors' and Official Committee of

Unsecured Creditors' First Amended Joint Plan of Liquidation"—may be found at
In re BLITZ U.S.A., INC., et al., Debtors. , No. 11-13603 (PJW), 2013 WL 6825608 (Bankr. D. Del. Dec. 19, 2013) . As the parties have done , we will refer to these

documents as the "Confirma tion Order" and the "Plan."

A. Summary of Confirmation Order and Plan

The United States Bankruptcy Code provides an "automatic stay" that prevents "the

commencement or continuation" of most ci vil litigation against a ny debtor named in a bankruptcy proceeding. 11 U.S.C.A. § 362(a)(1) (2015). Fred's is not a named debtor in the Blitz bankruptcy proceeding. However, the Confirmation Order and Plan also enjoin civil actions against cer tain other parties wh o are not named as debtors. To accomplish this, the Confir mation Order permitted Wal-Mart Stores,

Inc. 3 and willing insurance companies to fund th e Blitz Personal Injury Trust. In exchange for their contributions, the Co nfirmation Order protected Wal-Mart and the insurance companies who contributed to the Trust—the Participating Insurers— from all liability "based upon, arising out of , relating to, or in any way involving bodily injury and/or property damage" fr om a Blitz product. Under the operative

3 Wal-Mart appears to have sold a lot of Blitz gas cans and de fended a lot of Blitz Personal Injury Trust Claims. According to one plaintiff in a Blitz Personal Injury Trust Claim, "Wal-Mart, the country's larg est seller of plastic gas containers, 'sold more than 40 million Blitz gas containers without flame arrestors between 2002 and

2013.'" Jackson v. Wal-Mart Stores, Inc. , 753 F. App'x 866, 868 (11th Cir. 2018) (quoting the plaintiff's complaint). Accord ing to another court, "Wal-Mart has been named along with Blitz in at least thirty -five actions involving portable consumer gas containers in multiple jurisdictions." Al-Shara v. Wal-Mart Stores, Inc. , No. 11

- CV-14954, 2012 WL 1119339, at *2 (E.D. Mich. Apr. 3, 2012).language of the Confirmation Order and Plan, 4 claims against Blitz, Wal-Mart, Participating Insurers, and Protected Partie s are "channeled" into the Blitz Personal Injury Trust, and any party asserting su ch a claim is enjoin ed from pursuing the claim in any other forum.

B. Fred's Primary Argument

Fred's argues it is a Protected Party under th e operative language of the Confirmation Order and Plan. Thus, Fred's argues, Hazel's claim must be channeled to the Blitz Personal Injury Trust and may not be litigated in state court. 5 The operative language of the Confirmation Order and Plan suppor ts Fred's argument in some passages, but refutes the argument in other passages. We begin our disc ussion of Fred's primary argument by explaining the supporting language , then the contrary language. We will finish by attempting to reconcile the inconsistency to discern the bankruptcy

court's intent.

The "Introduction" to the Plan summari zes the operative language, "Following the issuance of the Channeling Injunction, holders of Blitz Personal Injury Trust Claims will be permanently enjoined from seeking sa tisfaction of their Blitz Personal Injury Trust Claims against the Debtors or any ot her Protected Party." The definition of Blitz Personal Injury Trust Claim is extrem ely broad. The definition includes, "All claims for damages or other relief for, ba sed upon, arising out of, relating to or in

4 The operative language uses numerous defi ned terms, not all of which are clear,

and several of which are defined inconsis tently in different places. We have capitalized all defined terms. Exhib it 1 to the Plan—entitled "Definitions"— includes 153 defined terms; Exhibit 8— entitled "Term Sheet"—includes twentynine defined terms. Twelve of the terms are defined in both documents. Of those twelve, only three are given the same definition both times.

5 Much of the parties' briefs and oral ar gument focused on whether Hazel's claim is a "products liability" claim. Neither th e Confirmation Order nor the Plan mention the phrase "products liability." As we wi ll explain below, the debate over whether Hazel's claim is a products liability claim does not relate to the operative language of the Confirmation Order or Plan, but re lates to Fred's secondary argument that Hazel's claim invokes insurance coverage through a policy issued by Old Republic Insurance Company insuring Fred's for pr oducts liability claims. Fred's contends Hazel's claim must be pa id by Old Republic—a Participating Insurer—and thus

Hazel's claim is barred.any way involving the products . . . of the De btors." This definition includes Hazel's claim. The term Protected Party is define d to include Vendors. The term Vendor is defined as "any Entity that . . . sold or distributed any product manufactured . . . by the Debtors." Fred's argues it is a Protected Party because it is a Vendor. Thus, Fred's argues, the Confirmation Order and Pl an bar Hazel's claim because Fred's is a Protected Party.

The operative language itself also provide s support for Fred's argument. The paragraph of the Confirmation Order entitle d "Imposition of Channeling Injunction" provides, "Entities that . . . assert any Blitz Personal Inju ry Trust Claim against the Protected Parties . . . shall be permanently stayed, restrained and enjoined . . . ." The operative language of the Plan is found in sections 3.3.4 and 3.4.4. The third sentence of both sections provides "each holder of a Blitz Pe rsonal Injury Trust Claim shall have its Claim permanently channe led to the Blitz Injury Trust, and such [a] Claim may thereaft er be asserted exclusively ag ainst the Blitz Personal Injury

Trust."

The Channeling Injunction itself is section 4. 3.3 of the Plan. That section includes two subsections, one of which provides "(i) all Blitz Personal Injury Trust Claims will be subject to the Channeling Injuncti on," and the other of which provides "(ii) the Protected Parties shall have no obligation to pay any liability of any nature or description arising out of, relating to, or in connection with any Blitz Personal Injury

Trust Claims." Section 4.3.3.1 contains the "Terms" of the Channeling Injunction. That section provides, "all Entities . . . that hold or assert any Blitz Personal Injury Trust Claim against the Protect ed Parties . . . shall be pe rmanently . . . enjoined from taking any action for the purpose of . . . rec overy from any such Protected Party with respect to any such Blitz Pers onal Injury Trust Claim."

Fred's relies on these provisions to suppor t its argument that Hazel's claim is

channeled into the Blitz Pers onal Injury Trust and may be asserted only against the

Trust.

There are other provisions of the Conf irmation Order and Pl an, however, which refute Fred's argument. First, several of the provisions quoted above that Fred's argues support its argument are inconsistent with each other. For example, the headings and first two sentences of sections 3.3.4 and 3.4.4 indicate the sections apply only to USA Debtors and BAH Debtor s respectively, while later sentences indicate the sections apply to all Protected Parties. As anothe r example, sections 3.3.4, 3.4.4, and 4.3.3 of th e Plan provide that "each" or "all" Blitz Personal Injury

Trust Claims must be channeled to the Blitz Personal Injury Trust. On the otherhand, the "Introduction" to the Plan, other se ntences of sections 3.3.4 and 3.4.4, and

the "Terms" set forth in section 4.3.3.1 provide only that claims "against the Protected Parties" are prohibited. In the firs t example, the part of the text applicable to Debtors clearly does not apply to Fred's, but the part applicable to Protected Parties arguably applies. In the second ex ample, the part applicable to Protected Parties limits the application of the ope rative language and Ch anneling Injunction, but the extremely broad definition of Blit z Personal Injury Trust Claim makes the "each" or "all" part of the operative la nguage and Channeling In junction applicable to claims to which the provisions we re clearly not intended to apply.

To explain this last point, it is conceiva ble that some person who knew of the danger of fire entering the gas can through its unguarded spout might nevertheless pour kerosene onto a burn pile in the presence of others to whom he owes a duty of due care. If the same type of explosion and fire that burned Jacob then occurred and injured others nearby, the hypothetical clai m accruing to any injured parties against the person who poured the kerosene would be a Blitz Personal Injury Trust Claim. The plaintiffs actually asserted this very claim against Nix in this case. It is inconceivable the bankruptcy court meant to enjoin a claim agai nst such a person, or against Nix, even though both the hypoth etical claim and the actual claim against Nix are Blitz Personal Injury Trust Claims. Yet, the "each" or "all" part of sections 3.3.4, 3.4.4, and 4.3.3—whic h foreclose "each" or "all" Blitz Personal Injury Trust Claims—purport to prevent a claim against the person w ho negligently poured the

kerosene on the fire.

Second, the term Channeling In junction is defined in incons istent ways. In Exhibit 1, Channeling Injunction is defined by simply referring the reader to section 4.3.3 of the Plan, which we discussed above. In Exhibit 8—Term Sheet —the definition is substantive: "'Channeling Injunction' shall mean an injunction pursuant to Sections 105(a) and 363(f) of the Bankruptcy Code th at to the fullest extent permitted by

law [6] . . . permanently enjoins the prosecuti on of all Blitz Personal Injury Claims against any Released Party." The language we discussed in support of the argument Fred's raises applies to Prot ected Parties, not Released Pa rties, and those terms are defined differently. Fred's meets the de finition of Vendor, and thus—arguably—is a Protected Party; Fred's is not a Released Party.

6 We discuss below the extent to which the law permits the bankruptcy court to impose an injunction in favor of a third-party, non-debtor like Fred's.The last statement warrants an explanation. The Term Sheet defines Released Party as "the Debtors, the Participating Insurers , Wal-Mart and any ot her person or entity insured under the Subject Policies 

### . . . ." 7 Exhibit 2 to the Term Sheet contains a list of the "Subject Policies." Blitz had th ree liability insurance policies naming Fred's as an insured. Burlington Insurance Co mpany issued a commercial general liability policy. Old Republic Insurance Company issued what the parties call a products liability policy. A third insurer—First Sp ecialty Insurance Cor poration—issued an excess liability policy. The list of Subj ect Policies includes both the products liability policy and the excess liability polic y, but it does not include the commercial general liability policy. Th e commercial general liability policy would likely cover a negligence claim against Fre d's, such as Hazel's clai m. However, none of the policies are in the Appendix or in the Record on Appeal. Thus, th e record before us does not indicate whether the products lia bility policy or the excess liability policy

would cover Hazel's claim. 8 Because Fred's has not dem onstrated it is an insured under a Subject Policy, Fred's is not a Rel eased Party. Under the substantive definition of Channeling Injunction the bankruptcy court incl uded on the Term Sheet, Hazel's claim is not enjoined.

Third, and perhaps most importantly, there are multiple indications in the

Confirmation Order and Plan that the ba nkruptcy court did not intend the term

"Vendor" to include a seller—like Fred's—that did not contribute funds to the Blitz Personal Injury Trust. Throughout the C onfirmation Order and Plan, the bankruptcy

court indicated the Protected Par ties were released from liability in exchange for the contributions the Participating Insurers made to the Blitz Personal Injury Trust. For example, the Confirmation Order and Plan state the documents enjoin cases against Protected Parties, "In view of the substa ntial contributions to the Blitz Personal Injury Trust . . . made by or on behalf of the Protected Partie s," and, "For good and

7 The sentence continues with the language ". . . including, but not limited to (i) any distributor or retailer of Debtors' products . . . ." This language does not make "any distributor or retailer" a Released Party, but includes as a Released Party distributors or retailers that are "insured under the Subject Policies."

8 As the court of appeals stated, "these polic ies are not in the record before us," and therefore, "any effort to determine the exact coverage afford ed under the policies would be a speculative exercise." Hazel , 425 S.C. at 369, 822 S.E.2d at 342. Fred's—as the party who filed the motion to enjoin these lawsuits , the appellant at the court of appeals, and the petitioner he re—bears the burden of demonstrating the insurance policies apply to Hazel's claim.valuable consideration . . . ." In other words, the bankruptcy court appears to have

intended to restrict the definition of Prot ected Party to those who made financial

contributions to the Blitz Pe rsonal Injury Trust. These include Wal-Mart and sellers insured by Participating Insurers. As evid ence of this intent, the bankruptcy court stated, "The Channeling Injunc tion and Releases, as applie d to Blitz Personal Injury Trust Claims against the Protected Partie s, are essential and necessary for the

Debtors because . . . the Protected Par ties would not be willing to make their

contributions to the Blitz Pe rsonal Injury Trust . . . without the protection provided by the Channeling Injunction and Releases."

In addition, the bankruptcy court stated,

If Wal-Mart or any Participa ting Insurer defaults and does not pay its agreed upon share of the Insurance Settlement Payment . . . in accordance w ith the terms of the Insurance Settlement, that defaulting party shall, after ten days notice and an opportunity to cure, not receive any benefits provided by the Insurance Settlement, including but not limited to the Releases, Inj unctions and Insurance Policy Buy-Back until such time as the defaulting party makes full payment.

If the bankruptcy court refused to provide protection to entities who failed to make their agreed upon contributions to the Blitz Personal Injury Trust, it is inconceivable the court intended to protect entities like Fre d's who refused to make contributions to the Trust in the first place.

Finally as to the bankruptcy court' s intent to release non-debtors only in exchange for contributions to the Blitz Personal Inju ry Trust, the bankruptcy court indicated claims insured by Non-Participating Insurers were not intended to be released from liability. The exceptions to the releases st ate, "[T]he Channeli ng Injunction shall not enjoin: . . . the rights of any Entity to a ssert any claim, debt, obligation or liability for payment against a Non-Participating Insurer." The bankruptcy court found, "The Plan does not materially incr ease any Non-Partic ipating Insurer's risk of providing coverage for any Blitz Personal Injury Trust Claims . . . ." The bankruptcy court stated, "The Plan shall not, and is not intended to, modify any of the rights or obligations of Non-Participating Insurers . . . ." These provisions clearly permit

Hazel's claim at least to the extent Fred's is insured by Burlington—a NonParticipating Insurer—or is self-insured.This language releasing Protected Parties in exchange for payments made to the Blitz Personal Injury Trust, and the language excluding Non-Particip ating Insurers from the release, refutes Fred's ar gument that Hazel's claim ag ainst it was subject to the Channeling Injunction a nd Fred's was therefore re leased from liability.

As an additional effort to discern whethe r the bankruptcy court intended to include Fred's as a Protected Party under the opera tive language of the Confirmation Order and Plan, we consider the scope of th e bankruptcy court's power to protect nondebtors, for surely the bankruptcy court in this case did not intend to exceed its power. The bankruptcy court specifically stated in its definition of Channeling Injunction on the Term Sheet the Channeling Injunction extends "to the fullest extent permitted by law." The court of appeals also considered th e extent of the bankruptcy court's power as an indication of its intent , stating "we believe this reading of the Bankruptcy order is consistent with the power of the Bankruptcy court under Chapter 11 'to stay and enjoin proceed ings or acts against non-debtors where such actions would interfere with, deplet e or adversely affect property of [the debtor's] estate[ ].'" Hazel , 425 S.C. at 370, 822 S.E.2d at 342-43 (alterations by court of appeals) (quoting In re Johns-Manville Corp. , 26 B.R. 420, 436 (Bankr.

S.D.N.Y. 1983), aff'd , 40 B.R. 219 (S.D.N.Y. 1984), appeal allowed, decision rev'd
in part , 41 B.R. 926 (S.D.N.Y. 1984)); see generally Travelers Indem. Co. v. Bailey

, 557 U.S. 137, 155, 129 S. Ct. 2195, 2207, 174 L. Ed. 2d 99, 112 (2009) (stating— as to future cases involving asbestos—"a channeling injunction . . . would have to be measured against the requirements of [11 U.S.C.A.] § 524," in which "Congress explicitly authorized bankruptcy courts, in some circumstances, to enjoin actions against a nondebtor"); 557 U.S. at 160-61, 129 S. Ct. at 2210, 174 L. Ed. 2d at 115 (Stevens, J., dissenting) (arguing the major ity's statement as to future cases should be applied in the current ca se, and stating, "We should not lightly assume that the Bankruptcy Court entered an order that exce eded its authority. . . . A bankruptcy court has no authority . . . to adjudicate, settle, or enjoin claims against nondebtors

that do not affect the de btor's estate.").

Under the Bankruptcy Code, ba nkruptcy courts have broa d power to reorganize or

distribute the estate of a named debtor. See Braunstein v. McCabe , 571 F.3d 108, 120 (1st Cir. 2009) (stating bankruptcy courts have a "broad range of powers . . . 'in passing on a wide range of problems arising out of the administration of bankrupt estates'" (quoting Pepper v. Litton , 308 U.S. 295, 304-05, 60 S. Ct. 238, 244, 84 L. Ed. 281, 288 (1939))). The power to enjoin claims against entities that are not named as debtors, however, is not so broad. As the bankruptcy court clearly recognized in this case, there must be a nexus to protecting the estate of the bankrupt debtor before the court may enjoin claims against a thir d-party, non-debtor. As towhat that nexus must be, "There is a long-running circuit split on this issue." Blixseth

v. Credit Suisse , 961 F.3d 1074, 1082 n.4 (9th Cir. 2020). The Fourth Circuit takes an expansive approach. See A.H. Robins Company v. Piccinin , 788 F.2d 994, 998

- 1004 (4th Cir. 1986) (discussing the four categories of non-debtors a bankruptcy court may protect). 9 Several other circu its take a restrictive approach, prohibiting almost any injunction in favor of a non-de btor except by consent of the creditor. See,

e.g. , Blixseth , 961 F.3d at 1083 (Ninth Circuit sta ting "[t]his court has repeatedly held, without exception, that § 524(e) precl udes bankruptcy courts from discharging

the liabilities of non- debtors" (quoting In re Lowenschuss , 67 F.3d 1394, 1401 (9th Cir. 1995))).

The Third Circuit—comprisi ng the District of Delaware—has taken a cautious approach. In In re Continental Airlines , 203 F.3d 203 (3d Ci r. 2000), the court analyzed the split in the circ uits, 203 F.3d at 212-13, and then concluded "we need not establish our own rule regard ing the conditions under which nondebtor releases and permanent injunctions are appropriate or permissible." 203 F.3d

at 214. The Third Circu it revisited the issue in In re Millennium Lab Holdings II,

LLC. , 945 F.3d 126 (3d Cir. 2019). "We ar e asked," the Third Circuit stated, "whether the Bankruptcy Court . . . can confirm a Chapter 11 reorganization plan containing nonconsensual third-party releas es and injunctions." 945 F.3d at 129.Without deciding the full scope of the bankruptcy court's power to protect a nondebtor by imposing an injunction in a plan of reorganization, the court focused on the question of what nexus is sufficient to justify the court's exercise of this power. The court permitted the specific injunction at issue in that case because "the Bankruptcy Court was resolving a matter integralto the restructuring of the debtorcreditor relationship." 945 F.3d at 137 (em phasis added). The court relied on the $325 million contribution made by the releas ed third parties and found the nexus sufficient, stating "the deal to avoid co rporate destruction would not have been possible without the third-part y releases." 945 F.3d at 132.

In this case, the bankruptcy court carefully analyzed the nexus between the debtor's estate and the third parties it intended to protect through the Channeling Injunction. The bankruptcy court stated, "The Relea ses and the Channeling Injunction are

critical to the success of the Plan. Without the Releases and the Channeling Injunction, the Protected Parties are not willing to make their contributions under

the Plan." We do not doubt this is true. As the bankruptcy court earlier recognized,

9 But see Behrmann v. Nat'l Heritage Found. , 663 F.3d 704, 712 (4th Cir. 2011) (stating "approval of nondebtor releases . . . should be granted cautiously and infrequently").Blitz faced tremendous liab ility because of its defectiv e gas cans, 475 B.R. at 211, and the Participating Parties—such as Wal-Mart—and the Participating Insurers

would have no incentive to contribute to th e bankruptcy estate unless they received a benefit such as a release from liability. However, a third-part y, non-debtor seller

like Fred's—who made no contribution to th e bankruptcy estate and did not even participate in any negotiations or litigatio n in bankruptcy court—has no nexus to the success of the bankruptcy proceedings. Protecting Fred's bears no relationship to the "integral" connection th e Third Circuit approved in Millennium Lab Holdings II

, nor even to the expansive construction gi ven by the Fourth Circuit. Importantly, neither Fred's nor any other similarly situ ated seller of Blitz products is even mentioned by the bankruptcy court in th e Confirmation Order or the Plan.

Nevertheless, Fred's makes two arguments that it has a sufficient nexus to the bankruptcy proceedings to give the bankrupt cy court the power to protect it. The first is Fred's secondary argument about products liability in surance, which we

address in Section II.C. The second is indemnity. An indemnity agreement could

create a sufficient nexus with the debtor su ch that the Confirmation Order and Plan would extend to a third-party, non-debtor seller like Fred's. See A.H. Robins Company , 788 F.2d at 999 (hypothesizing that "a third-party who is entitled to

absolute indemnity by the debtor" would have a sufficient nexus) (emphasis added).

Blitz and Fred's entere d into a "Vendor's Hold Harmle ss and Indemnity Agreement." Blitz agreed,

To protect, defend, hold harmless and indemnify [Fred's] from and against any and all claims, actions, liabilities, losses, . . . arising out of any actual or alleged death of or injury to any person, . . . resulting or claimed to result in whole or in part from any actual or alleged defect in said

Products . . . .

Under South Carolina law, however, Blitz's i ndemnity obligation is not absolute. A right of contractual indemnity will not be enforced if the indemnitee's own negligence caused the loss, unless the ag reement expressly pr ovides otherwise. Laurens Emergency Med. Specialists, PA v. M.S. Bail ey & Sons Bankers , 355 S.C. 104, 111, 584 S.E.2d 375, 379 (2003). The very nature of any indemnity agreement is that it requires the indemnitor (Blitz) to pay the indemnitee (Fred's) when the

indemnitee becomes liable to pay a claim covered by the i ndemnity agreement. That

claim in this case is Hazel's claim. Hazel's claim alleges only Fred's was negligent. Therefore, Fred's becomes liable to pay Haze l's claim only if a jury finds Fred's was negligent. The indemnity agreement betw een Blitz and Fred's doe s not provide thatBlitz must indemnify Fred's for Fred's ow n negligence. If Fred's was negligent—

under Laurens Emergency Medical Specialists —then Blitz cannot be liable to Fred's under the indemnity agreement. In other words, the validity of Hazel's claim depends on a finding that Fred's was negligent, and such a finding—by law— forecloses Blitz's indemnity obligation. Th erefore, there can never be any indemnity from Blitz to Fred's on Hazel's claim, and the indemnity obligation will never provide a sufficient nexus to the bankruptcy proceedings.

In conclusion as to the operative language, the Confirmation Order and the Plan are inconsistent as to whether the bankruptcy c ourt intended to enjoin third-party sellers

like Fred's. We considered this inconsis tency in light of the bankruptcy court's power. The bankruptcy court made a careful effort to act only within its power by considering whether any third parties w ho might be protected met the legally required nexus to preserving the bankruptcy estate before enjoining claims against such a third party. We find the bankruptcy court did not intend to define Protected Party so broadly as to prohibit claims like Hazel's claim against a seller like Fred's who did not participate in the bankruptcy proceedings and who made no contribution to the bankruptcy estate.

C. Fred's Secondary Argument

Fred's also argues Hazel's claim must be en joined because it is a "products liability" claim. We begin our discussion of th is argument by repeating that the phrase "products liability" is not found in th e Confirmation Order or the Plan. See supra

note 5. Whether a claim is a products liability claim, therefore, was not part of the bankruptcy court's analysis. Fred's argumen t that Hazel's claim is a products liability claim relates to a different point: whethe r Hazel's claim is insured by Old Republic Insurance Company, which is a Participating Insurer. If so, Fred's argues, Hazel's claim is a Blitz Personal Inju ry Trust Claim against a Protected Party, and thus must be enjoined.

As discussed above, however, the Old Repub lic policy is not in the Appendix and was not in the Record on Appeal. It is not possible, therefore, for us to determine if Fred's is covered by the Old Re public policy as to Hazel's claim. The simple fact Hazel's claim is—or is not—a products liability claim does not answer this question. 10

10 We do not argue, as the dissent sugg ests, "that the Old Republic Insurance Company policy" provides no c overage for Hazel's claim "b ecause the parties call itTo support its argument, Fred's relies heavily on Bragg v. Hi-Ranger, Inc. , 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). Fred's pieces together random statements from Bragg to fit its argument that the only neglig ence claim available to these plaintiffs is a claim based on the neglig ence of Blitz. Fred's overloo ks a key circumstance in Bragg : the court of appeals' opinion has nothing to do with the negligence of a retail seller. While the plaintiff in Bragg initially sued both the manufacturer of the product and the retail seller, the retailer settled with the pl aintiff during trial. 319

S.C. at 534 n.1, 462 S.E.2d at 323 n.1. Thus, the discussion Fred's relies on in Bragg is not applicable to a neg ligence claim—like Hazel's claim—against a retail seller.

Regardless of Bragg , Fred's argument is misplaced. Fred's argument depends on the idea that a retail seller of a product owes no duty to its customer. The idea is shocking; a retail seller absolutely owes a dut y of due care to its cu stomers. It is a point of law so obvious this Court has hardly ever had an occasion to discuss it. But

see McClure ex rel. Scott v. Fruehauf Corp. , 302 S.C. 364, 369, 396 S.E.2d 354, 357 (1990) ("In South Carolina, . . . the supplie r of a defective product is accountable to an injured party on ordinary neg ligence principles . . . ." (citing Carolina Home Builders, Inc. v. Armstrong Furnace Co. , 259 S.C. 346, 357, 191 S.E.2d 774, 778 (1972))); 11 Livingston v. Noland Corp. , 293 S.C. 521, 525, 36 2 S.E.2d 16, 18 (1987) ("A supplier . . . of a product [is] liable for failing to warn if they know or have reason to know the product is or is likely to be dangerous for its intended use; they have no reason to believe the user will realize the potential danger; and, they fail to

exercise reasonable care to inform of its dangerous condition or of the facts which

a products liability policy." We simply make it clear that whether Hazel's claim is a products liability claim is not important to our analysis.

11 McClure "is a products liability case." 302 S.C. at 367, 396 S.E.2d at 355. The plaintiff settled with the product manufact urer—Firestone—and proceeded to trial against the seller and others. 302 S.C. at 367, 396 S.E.2d at 356. The seller— Fruehauf—appealed the adverse jury verdic t, contending the plaintiff "failed to establish [Fruehauf] owed him a duty of care because it did not design or

manufacture the defective wheel assembly and was merely a seller." 302 S.C. at 369, 396 S.E.2d at 357. We noted, "Evidence indicates Fruehauf knew at the time that such wheel assemblies are dangerous . . . ." 302 S.C. at 367, 396 S.E.2d at 356. We rejected Fruehauf's contention and rec ognized the seller of a product owes a duty

of due care. McClure is on point here.make it likely to be dangerous."); 12 Guyton v. S.H. Kress & Co. , 191 S.C. 530, 537

- 38, 5 S.E.2d 295, 298 (1939) (acknowledging if a retail se ller of nail polish had actual knowledge of its inheren tly dangerous nature, it coul d be liable for its failure to exercise reasonable care, but affirming a directed verdict for the seller in that case because "there was no proof the [seller] had actual knowledge"). Under this duty, if a retail seller has knowledge a product is dangerous, the sa le of the product could be actionable under a theory of the seller's negligence if the jury finds the seller did not

exercise reasonable care. A claim based on the retail seller's negligence in such an instance is a separate claim from any claim based on negligence by the manufacturer.

Fred's essentially argues the simple fact a product was "defective" under the law of products liability somehow protects a retail seller from liability for its own negligence. In this case, however, Fred' s is protected from liability for its own negligence only if the terms of the C onfirmation Order and Plan provide that protection. As we have explained, the terms of th ose documents do not protect

Fred's.

III. Conclusion

We affirm the circuit court' s order denying Fred's motion to enjoin the proceedings,

and we affirm the court of a ppeals. We remand to the ci rcuit court for discovery and

trial.

AFFIRMED.

BEATTY, C.J., HEARN and JAMES, JJ., concur. KITTREDGE, J., dissenting in a separate opinion.

12 The plaintiffs argue Livingston is a failure to warn case, and this case is not. We

are not concerned with this differen ce. The point for which we cite Livingston is that a retail seller owes a duty of due care to its customers, not the manner in which the duty may be breached.JUSTICE KITTREDGE: I respectfully dissent. I would reverse the court of appeals and enjoin these lawsuits pursuan t to the order and injunction entered in the bankruptcy proceedings of Blitz U.S.A., Inc. (Blitz).

I commend Justice Few for his thorough majority opinion. I take no issue with his review of the case proceedings and se lected quotes from the bankruptcy court's Confirmation Order and Plan (which I will refer to as the Bankruptcy Plan or the Plan). However, in my judgment, the tr ial court erred in denying Fred's motion to enjoin these claims.

I.

Jacob, a minor, was injured on November 5, 2010, when his father, James Nix, poured kerosene from an a llegedly defective gas can manufactured by Blitz. The kerosene ignited, and Jacob, who was standing nearby, was severely burned. The Blitz gas can was sold in Varnville, South Carolina, by Fred's Stores of Tennessee, Inc. (Fred's).

Because of the number of products liability claims filed in connection with the use of Blitz gas cans, Blitz filed for bankrupt cy protection in November 2011 in the United States Bankruptcy Court for the Dist rict of Delaware. A trust—the Blitz Personal Injury Trust—was es tablished to handle designa ted claims from July 31, 2007, through January 28, 2014. Respondents, on behalf of Jacob, filed a claim in the bankruptcy court pursuant to th e Blitz Personal Injury Trust.

It is my view that the cl aims against Fred's in the st ate court should be enjoined pursuant to the Bankruptcy Plan. I begin with the Plan's definitions of relevant

terms. A Blitz Persona l Injury Claim is defined to "m ean and include all claims for damages or other relief for, based upon, arising out of, relating to, or in any way involving bodily injury [during the relevant time period] and sha ll include [claims] based upon, arising out of, or in any wa y involving the products, premises or operations of [Blitz]." Attached to the Bankruptcy Plan is Exhibit 1 entitled "Participating Blitz Personal Injury Clai mants." Jacob's claim is included in Exhibit 1; Jacob is therefore a Blitz Personal Injury Claimant.

I turn now to Fred's, and specifically, whether Fred's may invoke the Channeling Injunction of the Bankruptcy Plan. Fred's status as a non-debtor to the bankruptcy proceeding is the real nub of this appeal. The majority correctly cites to the term "Protected Party" in the Plan, which in cludes "Vendors." A Vendor is defined as "any Entity that . . . sold or distributed any product manufactured . . . by the Debtors." Thus, the Plan envisions its reach to include non-debtor vendors likeFred's. Fred's is a Protected Party, a nd the majority so c oncedes. The Plan unmistakably provides "holders of B litz Personal Injury [] Claims will be permanently enjoined from seeking satisf action of their Blitz Personal Injury [] Claims against the Debtors or any other Protected Party ," including Fred's. (Emphasis added).

To the extent there is any doubt, the Plan additionally confirms "all Blitz Personal Injury [] Claims will be subject to the Channeling Injunction." 13 The majority recognizes the Plan's la nguage concerning the term "Channeling Injunction" provides support for Fred's argument. As set forth in the Plan, "'Channeling Injunction' shall mean an injunction pursu ant to Sections 105(a) and 363(f) of the Bankruptcy Code [] to the fullest ex tent permitted by law." The Channeling Injunction here "permanently enjoins and channels to the Plan Trust all Blitz Personal Injury Claims, and [] permanen tly enjoins the prosecution of all Blitz Personal Injury Claims against any Released Party." Thus, at this point, the only possible thing that stands in the way of Fred's invoking the Channeling Injunction is whether Fred's is a Released Party.

The Plan defines "Released Parties" to "mean the Debtors, the Participating Insurers, . . . and any other person or entity insured under the Subject Policies, including, but not limited to (i) any dist ributor or retailer of [the] Debtors' products . . . ." "Subject Policies" is further defined to "m ean the policies of

insurance listed on Exhibit 2. " Blitz had several insu rance policies naming Fred's as an insured. Those insurance policies are listed in Exhibit 2 of the Plan. I

therefore conclude Fred's is a Released Party.

Given the fact that Fred's is both a Pro tected Party and a Released Party, the conclusion is inescapable—Fred's is en titled to invoke the Channeling Injunction and enjoin the state court proceedings.

II.

Respectfully, I do not agree with the majority that perceived inconsistencies in the Plan lead to a contrary result. The majo rity cautions against a broad reading of the term "Blitz Personal Injury Claim," for someone like James Nix might attempt to seek the protection of the Channeling Inj unction. The bankruptcy court, according to the majority, could not possibly have in tended to include the claim against Nix. I agree. Nix is not a Vendor and, as such, is not a Protected Party. In addition, Nix

13 As noted above, Jacob's claims are Blitz Personal Injury Claims.does not meet the criteria for a Released Party. Under no circumstances could someone like Nix invoke the protections of the Plan.

I further part company with the majority in its speculation that the Participating Insurers (that named Fred's as one of thei r insureds) really pr ovide no coverage for the claims against Fred's. The majority acknowledge s that Blitz had multiple insurance policies naming Fred's as an insu red, yet because those policies are not included in the record on appeal, the majority concludes "Fred's has not demonstrated it is an insured under a Subj ect Policy." Juxtaposed to this finding, the majority somehow is able to discer n the likely applicability of coverage for Fred's from a non-Subject Policy that is also not included in the record. Specifically, the Burlington Insurance Company policy is a commercial general liability policy that is not a Subject Polic y. This commercial general liability policy, the majority says, "would likely cover a negligence claim against Fred's."

Fred's contends that the Old Republic Insu rance Company policy, a Subject Policy, provides coverage. Fred's is a named insured under the Old Republic policy. Old Republic is a Participating Insurer that , presumably, paid money into the fund comprising the Blitz Personal Injury Trus t. That money was paid by Old Republic on behalf of its insureds (such as Fred's) who were likely to be sued based on their roles in selling the faulty Blitz gas can. Thus, a portion of the funds in the Blitz Personal Injury Trust were paid in part to defend vendor-i nsureds like Fred's against exactly this type of lawsuit. 14

However, according to the majority, this Subject Policy cannot be relied on because "the parties call [it] a products liability policy." I do not understand how the presence of a products liability policy weighs against Fred's ability to invoke the Channeling Injunction. The products liability claims against Blitz and vendors of Blitz gas cans were the entire impe tus behind Blitz's bankruptcy and the resulting Bankruptcy Plan. The potential fo r claims against Blitz vendors arising from the sale of the gas can in an a lleged defective condition, unreasonably dangerous to the user, was the reason Fred' s was listed as an insured in multiple Blitz insurance policies.

Is it really disputed that the claims listed in Exhibit 1, including Respondents' claims on Jacob's behalf, are not produc ts liability claims? Yet the majority

14 The majority makes much a do of the fact that Fred's did not directly pay into the

Trust itself. I see no reason to distin guish between Fred's making the payment directly, versus an insurer (i.e., Old Re public, as a Participating Insurer) making the payment on behalf of a named insured.dismisses the undeniable presence of products liability claims because "the phrase 'products liability' is not found in the Conf irmation Order or the Plan." As to the majority's position that Blitz's bankruptcy and the Bankruptcy Plan are unrelated to products liability claims, I strongly disagree.

The majority's effort to di vorce the presence of products liability claims from the Bankruptcy Plan must not stand. The natu re of the regrettable circumstances that led to Jacob's injuries demands that Re spondents initial claims on Jacob's behalf, including the remaining neg ligence claims against Fred's, be characterized as products liability claims. This is true whet her the claims are char acterized as strict liability, breach of warranty, negligence, or otherwise.

There is no legal path to accept Res pondents' position that Jacob's negligence claims against Fred's are somehow unr elated to a products liability claim concerning Blitz's gas cans. As alleged here, the only possible negligence against Fred's is directly linked to a product defe ct claim against Blitz. I believe the Complaint proves my point. The initial Comp laint alleged Fred's was negligent in failing to properly evaluate the fuel contai ner and in failing to properly warn users of the container of the risk of injury. Both of these contentions are based on Respondents' allegation that the "injurie s and damages were caused by [the]

defective nature of the Blitz container whic h allows the container to be subject to flash back fires, danger of explosions a nd/or failing to warn the intended users of the dangers of the containers with volatile substances."

According to Fred's brief to this Court, the Complaint was amended to assert that Jacob's injuries and damages were the resu lt of Fred's "decision to continue to sell an unsafe gas can which allows the containe r to be subject to flash back fires, danger of explosions and/or failing to warn the intended users of the dangers of the

containers with volatile substances." In my view, the amendment does not alter the underlying basis of Respondent s' negligence clai ms. Those claims remain Blitz Personal Injury Claims. Accordingly, I conclude Respondents' negligence claims

must be channeled into the Blitz Personal Injury Trust.

Contrary to the majority's suggestion, Fred's makes no argument that a retail seller of a product owes no duty to its customer s. The majority p itches nothing more than a strawman argument. Fr ed's argument, in the contex t of the pleadings of this case and the Bankruptcy Plan, is a valid one. While a retail seller of a product owes a duty to its customers, the allegations in the pleadings directly link the alleged negligence of Fred's to the claims against Blitz. Yet the majority insists that in this case, the "retail seller's ne gligence . . . is a separate claim from any claim based on negligence by the ma nufacturer." Respondents have not allegednegligence against Fred's independent of th e alleged defective nature of the Blitz gas container.

III.

My final response to the majority opinion re lates to the notion that the Court must exercise caution in ensuring that the Bankr uptcy Plan is not applied too broadly, for the power of a bankruptcy court to en join claims against entities that are not

debtors of the estate "is not so broad." I agree with the majority in principle, yet I respectfully disagree with the ma jority's conclusion in this case. First, as discussed above, the Bankruptcy Plan was structured to allow non-debtors to enforce the Channeling Injunction. Fred's comfortably satisfies all the necessary definitional requirements to invoke the Channeling In junction. The plain language of the Bankruptcy Plan entitles Fred's to enforce the injunction.

Next, the majority references the need for "a nexus to protecting the estate of the bankrupt debtor before the court may enjoin claims against a third-party, nondebtor." I believe Fred's had established that nexus. My reasoning is guided by the approach taken by the United States C ourt of Appeals for the Fourth Circuit in

A.H. Robins Co. v. Piccinin , 788 F.2d 994 (4th Cir. 1986). The Fourth Circuit recognized the authority of a bankruptcy cour t to properly stay proceedings against

non-debtors where there are "unusual circumstances." Id. at 999. Following a detailed review of the relationship between the debtor and non-debtors, the Fourth

Circuit concluded "the record was thus more than adequate to support the district court's grant of injunctive relief" to the non-debtors. Id. at 1008.

In analyzing the facts of the case before it, the Fourth Circuit provided an example

of a situation that would establish the nexus and "unusual circumstances":

An illustration of such a situation w ould be a suit against a third-party who is entitled to absolute indemnity by the debtor on account of any judgment that might result against them in the case. To refuse application of the statutory stay in that case would defeat the very purpose and intent of the statute.

Id. at 999.

That is precisely the situation here be tween the debtor Blitz and the non-debtor Fred's. In 2005, Blitz a nd Fred's entered into a "V endors Hold Harmless and Indemnity Agreement." That agreement provided Blitz would "protect, defend, hold harmless and indemnify" Fred's from all claims "arising out of any . . . injury . . . resulting . . . from a ny actual or alleged defect in [Blitz's]Products." The majority summarily di smisses the hold harmless and indemnity agreement on the basis the agreement doe s not reach Fred's negligence in selling the Blitz gas can. I do not believe th at finding is accurate. Omitted from the majority opinion is the additional provi sion in the agreement that calls for indemnification for "any and all claims . . . arising out of . . . the sale of said Products." Respondents' negligence cl aims are manifestly covered by the indemnity agreement. Not only has Fred's clearly met th e nexus requirement for a non-debtor, today's decision nullifies the 2005 indemnity agreement.

IV.

Because I would reverse and order the entry of an injunction against the state court proceedings, I dissent.