KENNETH L. BUETTNER, Judge.

¶ 1 Plaintiff Don Honeywell's house was struck by lightning and destroyed by fire. Plaintiff sued GADA Builders, Inc. (Builder), the homebuilder, and Larry Brannon Plumbing & Mechanical, Inc. (Plumber), the subcontractor hired to install the gas distribution system, for negligence and breach of contract. Plumber filed a third party petition against Gastite, the manufacturer of the corrugated stainless steel tubing (CSST) used in the distribution system. Counsel for Gastite entered an appearance in the case. Plaintiff then filed an Amended Petition adding Gastite as a Defendant and alleging damages caused by the defective CSST against Gastite, Builder, and Plumber. Plaintiff later filed a Second Amended Petition, abandoning his negligence theory and alleging strict products liability claims against Gastite, Builder, Plumber. Plaintiff settled with the Defendants. Based on 12 O.S. Supp.2004 § 832.1, Builder and Plumber sought indemnification from Gastite, the manufacturer, for attorney fees and costs incurred in defending the product liability action. The trial court granted summary judgment to Builder and Plumber and ordered Gastite to indemnify them for attorney fees and costs incurred between March 27, 2007, the date Gastite's counsel entered an appearance, and the conclusion of the indemnification proceedings. As a matter of first impression, Gastite asks this court to interpret 12 O.S. § 832.1. After de novo review, we hold that Gastite's duty to indemnify was triggered May 31, 2007, when Plaintiff filed his Amended Petition. Therefore, we affirm in part, reverse in part and remand for the limited purpose of calculating reasonable attorney fees and costs incurred between May 31, 2007 and the conclusion of the indemnification proceedings.

¶ 2 Plaintiff contracted with Builder to build his home in Broken Arrow, Oklahoma. Plumber was the subcontractor hired by Builder to install the gas distribution system throughout the house. Plumber installed the system using corrugated stainless steel tubing (CSST). The CSST was manufactured by Gastite. After Plaintiff's house was struck by lightning and destroyed, he filed the underlying lawsuit.

¶ 3 Plaintiff's original Petition, filed December 19, 2006, named Builder and Plumber as defendants.1 Plaintiff alleged the following as his first cause of action:

Plaintiff alleged in his second cause of action that Builder was liable for breach of contract for failing to construct the home in a good and workmanlike manner.

¶ 4 Plumber filed a third party petition against Gastite February 21, 2007. Plumber alleged that the fire and damages claimed by the Plaintiff were caused by the failure of the CSST, that the defective CSST was manufactured by Gastite, that at the time the CSST left Gastite's control it was defective and unreasonably dangerous, and that Plaintiff was a reasonably anticipated consumer. Counsel for Gastite entered an appearance in the case March 27, 2007. Builder filed a third-party petition against Gastite April 9, 2007.

¶ 5 On May 31, 2007, Plaintiff filed an Amended Petition. Plaintiff named Builder, Plumber, and Gastite as Defendants and made the following allegations:

Plaintiff also recited his second cause of action against Builder for breach of contract for failing to construct the home in a good and workmanlike manner.

¶ 6 The parties engaged in discovery for eighteen months and filed cross-claims seeking indemnification and/or contribution. Plaintiff filed a Second Amended Petition December 18, 2008. Plaintiff abandoned his negligence theory against Builder and Plumber and alleged strict products liability claims against Gastite, Builder, and Plumber:2

Plaintiff maintained his breach of contract action against Builder, but changed the theory of liability:

¶ 7 Shortly after Plaintiff filed his Second Amended Complaint, Gastite defended the lawsuit on behalf of Builder and Plumber. Builder and Plumber claimed they were sellers of CSST and, based on 12 O.S. § 832.1, sought indemnification from Gastite, the product manufacturer, for attorney fees and costs incurred in defending the product liability action. All parties filed motions for summary judgment. In the meantime, Gastite settled the underlying lawsuit, and Plaintiff dismissed all claims against all Defendants November 30, 2009. Therefore, only the issue of indemnification remained for the trial court.

¶ 8 According to 12 O.S. § 832.1, "[a] manufacturer shall indemnify and hold harmless a seller against loss arising out of a product 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." 12 O.S. Supp.2004 § 832.1.A (emphasis added). "For purposes of this section, `loss' includes court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages." Id., § 832.1.B.

¶ 9 Builder and Plumber argued that the case became a "product liability action" no later than March 27, 2007, the date Gastite's attorney entered an appearance in the case. Therefore, Gastite's statutory duty to indemnify sellers for attorney fees and costs was triggered March 27, 2007. Builder and Plumber explained that Gastite was notified of the product liability action and their demands for indemnification through their third party petitions. Builder and Plumber argued that Gastite's duty to indemnify was triggered before Plaintiff abandoned his negligence theory in the Second Amended Petition filed December 18, 2008. Builder and Plumber argued that Gastite could only negate its indemnity duty by showing that Builder and Plumber's independent negligence caused the loss.

¶ 10 Gastite argued that Builder was not a "seller" as contemplated by the statute and, therefore, Gastite had no duty to indemnify Builder. Gastite argued that even if Builder was a seller, there was not a "product liability action" until Plaintiff filed his Second Amended Petition December 18, 2008. Gastite argued that Plaintiff's Second Amended Petition, for the first time, asserted product liability claims against Builder and Plumber. Gastite argued that between March 27, 2007 and December 18, 2008, Builder and Plumber only generated attorney fees and costs by defending claims against them for active and independent negligence and breach of contract, not products liability. Gastite argued that § 832.1 does not require manufacturers to indemnify sellers for fees and costs in defending Plaintiff's claims of independent negligence.

¶ 11 The trial court granted summary judgment to Builder and Plumber for attorney fees incurred between March 27, 2007, when counsel for Gastite entered an appearance in the case, and the conclusion of indemnification proceedings. Several months later, the trial court heard evidence on the amount of reasonable attorney fees. The trial court awarded $242,494.18 to Builder and $152,500.00 to Plumber for reasonable attorney fees, expenses, and costs arising out of the product liability action.

¶ 12 Gastite raises nine issues on appeal, but several are duplicates. Gastite asks this court to interpret 12 O.S. § 832.13 and determine whether the attorney fees and costs awarded to Builder and Plumber were reasonable. No reported Oklahoma decisions have interpreted 12 O.S. § 832.1.

¶ 13 Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 42 O.S.2001, Ch. 2, App.1. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7, ¶ 7, 976 P.2d 1043, 1045. The parties agree on the facts material to this dispute. Where the facts are not disputed, an appeal presents only a question of law. Jones v. Purcell Investments, LLC, 2010 OK CIV APP 15, ¶ 2, 231 P.3d 706, 708. In its Petition in Error, Gastite has alleged the question of law is the interpretation of 12 O.S. § 832.1. Issues of statutory construction are questions of law to be reviewed de novo, and appellate courts exercise plenary, independent, and non-deferential authority. Welch v. Crow, 2009 OK 20, ¶ 10, 206 P.3d 599, 603. In cases requiring statutory construction, the cardinal rule is to ascertain and give effect to the intent of the Legislature. Id. The words of a statute will be given a plain and ordinary meaning, unless it is contrary to the purpose and intent of the statute considered as a whole. Naylor v. Petuskey, 1992 OK 88, ¶ 4, 834 P.2d 439, 440. Legislative purpose and intent may be ascertained from the language in the title to a legislative enactment. Id.

BUILDER WAS A SELLER OF CSST

¶ 14 According to 12 O.S. § 832.1, manufacturers are required to indemnify sellers for loss arising out of a product liability action. 12 O.S. Supp.2004 § 832.1.A. "[A] wholesale distributor or retail seller who completely or partially assembles a product in accordance with the manufacturer's instructions shall be considered a seller." Id., § 832.1.D.

¶ 15 Builder filed a motion for summary judgment arguing it was entitled to indemnity for attorney fees and costs incurred while defending Plaintiff's claims. Builder included in its statement of material facts not in dispute: "6. [Builder] was a seller of the CSST as contemplated by Title 12 O.S. § 832.1." Gastite's response admitted was: "6. Not disputed, but not material to the determination of [the indemnification issue]."

¶ 16 Gastite did not dispute Builder's status as a seller of CSST until it filed its own motion for summary judgment October 15, 2009. Despite its previous admission, Gastite claimed it was undisputed that Builder was not a retail seller or distributor of CSST.4 In response, Builder cited Gastite's previous admission that Builder was a seller of CSST within the meaning of § 832.1 and argued that Gastite should be estopped from claiming otherwise.5

¶ 17 We hold that Builder was a seller as contemplated by 12 O.S. § 832.1. Middlemen in the chain of distribution are subject to strict products liability.6 The policy reasons for imposing strict products liability on non-manufacturer sellers provide guidance in determining whether Builder should be classified as a seller. The rationale for imposing strict liability on retailers and distributors is founded upon the public interests in human safety and protecting the ultimate consumer. Retailers and distributors, like manufacturers, are engaged in the business of distributing goods to the public. "[Retailers] are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products." Moss v. Polyco, Inc., 1974 OK 53, ¶ 13, 522 P.2d 622, 626 (citing Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, 171 (1964)). "Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationships." Id. (citing Vandermark, 37 Cal.Rptr. 896, 391 P.2d at 172). The same policy reasons justify imposing strict liability on distributors. A distributor, for the purpose of strict products liability, is defined as "one who engages in the activity of making the defective product available for the use of others." Potter v. Paccar Co., 519 F.Supp. 487, 489 (W.D.Okla.1981).

¶ 18 Plaintiff contracted with Builder to build a home, which inherently included purchasing all of the building materials. Builder subcontracted with Plumber to install the gas distribution system, which included purchasing the CSST and other materials used in the system. Plumber purchased the CSST from Gastite, the manufacturer. Plumber was certified by Gastite to install the CSST. The purpose of § 832.1 is to require the manufacturer to indemnify those in the distribution chain against expenses and damages in product liability actions. For purposes of this statute, the builder of a house is a "seller" of the products used in the construction of the house.

GASTITE'S DUTY TO INDEMNIFY BUILDER AND PLUMBER WAS TRIGGERED BY PLAINTIFF'S AMENDED PETITION

¶ 19 We must determine when the underlying lawsuit became a "product liability action" and Gastite's statutory duty to indemnify Builder and Plumber for their attorney fees and costs was triggered. Title 12 O.S. § 832.1.A. states: "A manufacturer shall indemnify and hold harmless a seller against loss arising out of a product liability action. . ." (emphasis added).

¶ 20 A manufacturer's duty to indemnify a seller for attorney fees and costs arising out of a product liability action is triggered by the plaintiff's pleadings.7 The Legislature intended to provide indemnity to sellers regardless of the outcome of the case.8 The Legislature also intended that the indemnity duty was to be based on the plaintiff's pleadings.9 The general philosophy of the Oklahoma Pleading Code is that pleadings should give fair notice of the plaintiff's claim and be subject to liberal amendment. Wilson v. Webb, 2009 OK 56, ¶ 9, 221 P.3d 730, 734. Pleadings should be liberally construed so as to do substantial justice. Id. Accordingly, we liberally construe Plaintiff's petitions to determine when the lawsuit became a product liability action and the manufacturer's statutory duty was triggered. A "product liability action" is based on injuries caused by a defective product. In order for there to be a "product liability action," the plaintiff must plead that a product was defective.

¶ 21 Gastite argues that between March 27, 2007 (when Gastite's counsel entered an appearance) and December 18, 2008 (when Plaintiff filed his Second Amended Petition) no product liability claim was asserted against Builder or Plumber; therefore, there was no "product liability action." Gastite argues it did not have a duty to indemnify Builder and Plumber before December 18, 2008, because Builder and Plumber were only defending independent negligence claims.

¶ 22 We agree with Gastite with respect to the period of time between March 27, 2007 and May 30, 2007. Plaintiff's original Petition did not allege damages caused by a defective product; therefore, there was no product liability action. The trial court erred in finding the duty to indemnify was triggered when Gastite's counsel entered an appearance in the case. Plaintiff's pleadings triggered Gastite's duty to indemnify, not Plumber's third-party petition. A seller cannot transform a negligence action into a "product liability action" via a third-party petition. Only the plaintiff's pleadings can create a "product liability action." Gastite did not have a duty to indemnify Builder or Plumber between March 27, 2007 and May 30, 2007. Therefore, we reverse the trial court's order that Gastite had a duty to indemnify Builder and Plumber for attorney fees and costs generated between March 27, 2007 and May 30, 2007.

¶ 23 Plaintiff filed an Amended Petition May 31, 2007. Gastite argues that the Amended Petition merely repeated the claims in Plaintiff's original Petition that Builder and Plumber were negligent, independent of any allegations that the CSST was defective. Gastite suggests that Plaintiff amended his petition to name Gastite as a defendant and assert a products liability claim against Gastite only. We disagree. Gastite has mis-characterized the allegations made against Builder and Plumber in Plaintiff's Amended Petition. We hold that Plaintiff's Amended Petition alleged a product liability action against Builder and Plumber and triggered Gastite's duty to indemnify Builder and Plumber.

¶ 24 Reading the Amended Petition liberally, Plaintiff alleged product liability claims against not only Gastite, but also Builder and Plumber. A product liability action is based on an injury caused by a defective product. A plaintiff injured by a defective product can utilize various theories to recover for injuries caused by the product. A product liability action may be based on a theory of negligence liability or strict products liability. The Oklahoma Supreme Court in the seminal products liability case, Kirkland v. General Motors Corp., noted that a plaintiff is not required to elect one theory of liability. 1974 OK 52, ¶ 40, 521 P.2d 1353, 1365. Even with the advent of strict products liability, the negligence cause of action remains available to a plaintiff injured by a defective product.

¶ 25 Plaintiff alleged in his Amended Petition that the CSST was a defective product, that Plumber negligently installed a defective product, that Builder negligently directed and supervised the installation of the defective product, and that he was injured by the defective product. The negligence claims against Builder and Plumber were not claims of negligence independent of the defective product. Rather, Plaintiff claimed negligent installation of the defective product and negligent supervision of its installation. Therefore, based on the allegations made in Plaintiff's Amended Petition, a product liability action commenced and Gastite's statutory duty to indemnify Builder and Plumber was triggered May 31, 2007. We affirm the trial court's order that Gastite had a duty to indemnify Builder and Plumber for defense costs sustained between May 31, 2007 and the conclusion of the indemnification proceedings.10

¶ 26 A manufacturer's statutory duty to indemnify a seller for attorney fees and costs is analogous with an insurer's duty to defend the insured.11 The insurer and the manufacturer are obligated to finance the insured and seller's defense, respectively. The insurer defends on behalf of the insured12 and the manufacturer indemnifies the seller for its defense costs. Just as the insurer's duty is triggered by facts gleaned from the plaintiff's pleadings against the insured, the manufacturer's duty is triggered by the plaintiff's pleadings against the seller. If the plaintiff states a claim against the insured that is potentially covered by the insurance contract, the insurer's duty is triggered. However, if the plaintiff makes allegations that are not potentially covered by the insurance contract, the insurer has no duty. If the plaintiff asserts a product liability action against the seller, the manufacturer's duty is triggered. But if the plaintiff asserts a non-product liability action against the seller, the manufacturer has no duty.

¶ 27 Builder and Plumber relied heavily on Texas case law. Texas has a nearly identical products liability indemnification statute.13 We recognize that the outcome in this case aligns with the outcome of the Texas Supreme Court's decision in Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex.2001).14 However, the facts of this case, including the allegations made in Plaintiff's pleadings, do not mirror the facts and allegations in Meritor. Therefore, our holding is limited to the facts before this court, not the facts of Meritor.

¶ 28 The Texas Supreme Court held that "the seller's reasonable cost to defend an unsuccessful negligence claim, asserted independently of the products liability claim, is properly included as part of the `loss arising out of a products liability action,' so that it is within the manufacturer's indemnity duty." Meritor, 44 S.W.3d at 87 (disapproving Hurst v. Amer. Racing Equip., Inc., 981 S.W.2d 458 (Tex.App.1998)). In the case before this court, Plaintiff's Amended Petition did not contain a "negligence claim, asserted independently of the products liability claim." The issue on appeal is not whether a claim of truly independent negligence against a seller joined to a strict products liability claim against a manufacturer is part of a "product liability action" for purposes of 12 O.S. § 832.1. For the reasons discussed above, Plaintiff's Amended Petition asserted product liability claims against Builder and Plumber, not negligence claims unrelated to a defective product. Where a negligence claim is based on a defective product, the reasonable cost of defending that claim is a "loss arising out of a product liability action."

EXCEPTION TO INDEMNITY DUTY

¶ 29 Title 12 O.S. § 832.1.A. includes an exception to the manufacturer's indemnity duty: "A manufacturer shall indemnify and hold harmless a seller against loss arising out of a product 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." 12 O.S. Supp.2004 § 832.1.A (emphasis added).

¶ 30 On appeal, Gastite asks this court to determine "[w]hether the trial court erred in interpreting 12 O.S. § 832.1 as requiring the manufacturer to prove its seller committed active and independent negligence to defend a claim for indemnification-even though the Plaintiff specifically pled active and independent negligence causes of action against the seller." We previously discussed Gastite's mischaracterization of the claims asserted against Builder and Plumber in Plaintiff's Amended Petition. Plaintiff alleged active and independent negligence against Builder and Plumber in his original Petition. However, in his Amended Petition, Plaintiff asserted claims against Builder and Plumber for damages arising out of property damage caused by a defective product. Plaintiff based his product liability claims against Builder and Plumber on a negligence theory of liability and abandoned his claims of independent negligence. Thus, the lawsuit became a "product liability action," free of independent negligence claims against Builder and Plumber.

¶ 31 While a manufacturer's indemnity duty is triggered by the plaintiff's pleadings, the exception to the duty is not. The exception only applies if the manufacturer proves that the seller's independent conduct caused the plaintiff's injuries. The statute requires a manufacturer to indemnify an innocent seller for certain damages and litigation expenses arising out of a product liability action but requires the seller to bear the damages and expenses they cause. See Meritor, 44 S.W.3d at 88; Fitzgerald, 996 S.W.2d at 867. While we do not expressly adopt the Texas Supreme Court's decision with respect to what "product liability action" means, we do find Meritor persuasive in determining when the indemnification exception is invoked. The Meritor court rejected the manufacturer's argument that it should be permitted to establish the exception to the indemnity duty through the plaintiff's pleadings. 44 S.W.3d at 91. The Texas Supreme Court held that the "statute's plain language indicates that the plaintiff's pleadings are not sufficient to invoke the exception" and that "while the manufacturer's duty to indemnify the seller is invoked by the plaintiff's pleadings and joinder of the seller as defendant, the exception to that duty is established by a finding that the seller's independent conduct was the cause of the plaintiff's injury." Id.

¶ 32 The allegations made in Plaintiff's petitions were insufficient to invoke the exception under § 832.1. Plaintiff abandoned his claims against Builder and Plumber based on negligence in his Second Amended Petition. Prior to trial, Plaintiff and Gastite settled the underlying lawsuit, and Plaintiff dismissed all claims against all Defendants. The case concluded without a determination that Builder or Plumber's independent conduct caused the fire. Section 832.1.E.1. suggests the Legislature anticipated situations when the parties settle the product liability action. Sellers are entitled to indemnity regardless of "the manner in which the action is concluded." 12 O.S. § 832.1.E.1. In this summary judgment appeal, the record does not contain evidence that either Builder or Plumber's independent negligence caused Plaintiff's injury. We hold that the exception does not apply and affirm the trial court's order with regard to that issue.

§ 832.1 AND BOOKER v. SEARS ROEBUCK & CO.

¶ 33 Gastite asks this court to reconcile 12 O.S. § 832.1 and Booker v. Sears Roebuck & Co., 1989 OK 156, 785 P.2d 297. The decision in Booker was based on the manufacturer's common law duty to indemnify a seller for attorney fees and costs.15 By enacting § 832.1, the Legislature established the manufacturer's statutory duty to indemnify a seller for attorney fees and costs. Booker was decided in 1989, and § 832.1 was enacted in 2004. To the extent Gastite relies on Booker and § 832.1 modifies Booker, the statute controls.16

REASONABLENESS OF ATTORNEY FEES

¶ 34 A trial court's award of attorney fees is reviewed for abuse of discretion. Spencer v. Okla. Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895. An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Id. Generally, the correct formula for calculating a reasonable fee is to: 1) determine the lodestar fee by multiplying the attorney's hourly rate by the hours expended; and 2) modify the fee through consideration of the Burk factors.17 Id., ¶¶ 13-14, 171 P.3d at 895.

¶ 35 Builder and Plumber incurred significant attorney fees and costs while defending Plaintiff's product liability action and Gastite's cross-claims. Gastite asks this court to determine whether the trial court abused its discretion by using an attorney's hourly rate for delegable work, permitting fees for duplicate effort, allowing vague time entries and block billing, and including unnecessary expert witness fees in the award. After reviewing the evidence in the record, we are not persuaded that the trial court abused its discretion.18

¶ 36 However, the trial court included in its award attorney fees, costs, and expenses generated between March 27, 2007 and May 30, 2007, when the case was not a product liability action. It was an abuse of discretion to award attorney fees, costs, and expenses for that period of time. Therefore, we reverse and remand the case for the limited purpose of calculating and awarding attorney fees, costs, and expenses generated between May 31, 2007 and the conclusion of the indemnification proceedings.19 Attorney fees, costs, and expenses incurred prior to May 31, 2007 should be excluded from the trial court's calculation.

¶ 37 AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

MITCHELL, P.J., and JOPLIN, J., concur.