*1 J., SUMMERS, concurs in result.
KAUGER, J., participating. Loar, BOOKER,
Tammy now Adminis of the Estate of William O.
tratrix
Booker, Deceased, Appellant, COMPANY, Kiami & ROEBUCK
SEARS Fite, Valley LP chi Gas J.D. d/b/a Propane, Inc.,
Clayton Appellants, Refining
Kerr-McGee
Corporation, Appellee.
No. 69685.
Supreme Court Oklahoma.
Dec. 1989. Dec. and Dec.
As Corrected
Rehearing Denied Jan. Earl,
Williams, Clark, P.A. Baker & Jr., Tulsa, Clark, appellants, Joseph F. *2 29.8 I. Valley LP Gas Co. and J.D. Fite
Kiamichi Propane, Clayton Inc. d/b/a LAW IN INDEMNIFICATION & Hendrickson Johnston Pierce Couch OKLAHOMA Hendrickson, D. W. Baysinger Calvin Despite verdict and lack of the favorable Walls, Babb, Marc Oklahoma Lynn and S. agreement, the a written indemnification appellee. City, for that and retailer now contend wholesaler required to indemni-
Kerr-McGee should be HODGES, for their defense costs and attor- fy Justice. them (1) theory implied under the of an ney fees is the result of an appeal before us or, in alterna- indemnification contract the Booker, by Tammy now Loar action filed tive, (2) theory the that vicarious liabil- (hereinafter plaintiff), against the distribu- an ity could attach to them as a result of heater, manufacturer of a wall tor and products jury unfavorable verdict in this Company Rog- and White & Sears Roebuck require liability suit and this would indem- Company of Emerson Electric ers Division judgments; nification of all costs and the as defendants respectively. Also included lack of such unfavorable determination wholesaler, J.D. Fite propane gas were legal should not now bar their (hereinafter Inc. Clayton Propane, d/b/a Thus, presented question costs. to us wholesaler) retailer, gas Kiamichi and the is whether a manufacturer should be re- (hereinafter retailer); Valley LP Co. Gas quired indemnify its retailer and/or allegations negli- petition contained attorney wholesaler for fees and costs gence against of these defendants. both jury specifically when the verdict found no plaintiff By petition, an amended added product negligence part defect or on the refiner, Refining Corpora- gas Kerr-McGee manufacturer, either the the retailer or the (hereinafter Kerr-McGee). Prior to tion wholesaler. plaintiff settled her claim with the trial the adopted principle Oklahoma has and manufacturer and dis- distributor known as “the American rule” which holds charges negligence against missed all parties that all should bear the costs of remaining defendants. After a nine legal representation. their own individual day jury theory products trial on the Owens, City Nat. Bank & Trust Co. v. liability single form verdict was returned (Okla.1977). Exceptions P.2d 4 to this rule the defendants. Six months favor of recognized by have been courts where beginning trial the prior to the retailer faith; opponent has acted bad where a requested had of Kerr- and wholesaler litigant has conferred a benefit substantial it take over their defense. McGee person; “private or where a class request, When Kerr-McGee refused this attorney general” rationale has been found and retailer filed cross-ac- wholesaler shifting. theory to warrant fee of fee against Kerr- tions for indemnification however, shifting, equitable is based on McGee for amounts wholesaler and power considerations and the court’s required plaintiff retailer were despite attorney award fees the fact judgment in favor of the as a result of such an is not authorized statute award plaintiff. After the verdict was returned Owens, supra. or contract. attorneys’ costs and fees motions to assess against plaintiff pursuant were filed previously recog has Oklahoma 940. The trial court denied O.S.1981 that a manufacturer be found to nized cross-petitions indemnification and indemnify duty its dealer have a for assessment of fees. the motions loss caused the manufactur claims for plain- The motions to tax costs product. Braden v. Hen er’s defective granted. dricks, (Okla.1985). The wholesaler and re- tiff were P.2d 1343 Reason allowed, appeal perfected attorney tailer then on the have been as a able fees cross-petitions part damages, long for indemnifi- so denial of the to an indemnitee cation. as the fees were incurred against. United Gener- claim indemnified P.2d 1334 punitive a little bit about Ins. v. Crane Carrier Let’s talk al manu- Exemplary damages, (Okla.1984). damages, While this now. *3 typically the is Instruction Number they’re to the indemnitee also-called. facturer being found read it you get it—You’ve been the 24 when result of operation says, It “If implied by already, you’ll see it. be but liable the if an the Plaintiff you find in favor of just as enforceable law and is you and if find agreement damages, had actual award express indemnification Re conduct of the Kerr McGee parties. Berry that the by into been entered that has (Okla.1955) fining Corporation is conduct How- Barbour, P.2d 335 disregard for to reckless legal is not amounted ever, costs indemnification in addition to the public safety, then and position has adverse where an permissible meaning damages” actual addition to by the claimant taken been —in -meaning you have to have top sought. is party from whom of-— damages, you grant can actual some necessity of a benefit due to the This is exemplary damages. the Plaintiff these before on the indemnitor being conferred goes from zero to a range there Berry, impose obligation. an law will Jury. You million dollars. You’re supra. ranges, in those but decide what fits get punitive, you’ve got to have II. order to actual, according to this Instruc some KERR-MCGEE, V. THE RETAILER tion. THE MANUFACTURER punitive damages just means Now presents us facts The case before pun- they say. Punitive means to what Kerr-McGee, wholesaler and wherein says, it Right in that instruction ish. defenses inde handled their own retailer “Exemplary damages you in a sum rea- primarily each pendently of each other sonably punish will Kerr McGee believe independent na benefit. The for its own example Refining Corporation and be an par of the defenses ture of the conduct up million You can find to a to others.” light of the fact ticularly significant category. dollars in that for the retailer during the trial counsel Remember, say you the Instructions with the disagreed very little stated that he get damages to find actual have to cross-examined witness plaintiffs position, say much. They don’t how punitive. against the to and in a manner hostile es You heard a life worth? How much is even went so of Kerr-McGee and interests much is that. How you Mr. ask Branam in favor of the argue for a verdict far as to to one compared mixing tank worth money the amount plaintiff and discuss technique sampling life? much is a How An compensate plaintiff. necessary gravity specific How much is worth? approach is antagonistic example of this tester, gas chroma- expensive or even an closing argument of counsel found one life from prevents tograph worth if it the retailer: being lost? Now, Kerr McGee Cor- let’s talk about by the retail- taken position The adverse Corporation. Their Refining poration, or possible benefit no er fact that and the it. have control over “We don’t attitude? the retailer’s forthcoming from could be industry. We part gas of the We’re not clearly pre- trial at attack on Kerr-McGee goes.” it know where don’t consideration retailer cludes the Somebody Well, goes somewhere. costs. legal award Individually, people that work it. uses Refining Corporation for Kerr McGee III. they have a people, like nice but seem KERR-MCGEE, V. THE WHOLESALER is, they work for problem problem. MANUFACTURER THE bury its that wants to corporate ostrich position hand the other look—not take On in the sand and not head from that distinguishable doing. the wholesaler it’s responsibility for what products liability judgment, the benefit be- in that the wholesaler did of the retailer not, time, posi- attack Kerr-McGee’s stowed on Kerr-McGee the wholesaler’s Rather, comple- case tion. the wholesaler’s substan- supportive arguments was indeed finding mented that of Kerr-McGee. tial. As Kerr-McGee so benefited it is grant- whether this conduct warrants proper legal fees incurred if an ing we must determine costs products liabil- wholesaler present. rule is to the American ity claim borne Kerr-McGee. The case is therefore remanded to the trial arguments A and testimo- review of purpose fixing court throughout for the sole ny presented by the wholesaler *4 attorney amount request for fees to be assessed brings the trial the American exception fees under an to Kerr-McGee. ship” “jumped and rule. While the retailer PART; AFFIRMED IN IN REVERSED Kerr-McGee, attacking the whole-
began
PART; REMANDED
A LIMITED
FOR
its
consistently defended
saler
PURPOSE.
of Kerr-McGee.
own actions
those
but
continually
was
Counsel for the wholesaler
DOOLIN,
WILSON,
ALMA
KAUGER
immediately
fol-
placed
position
in the
SUMMERS, JJ.,
and
concur.
open-
lowing
cross-examination and
ing/closing statements of counsel for the
V.C.J.,
OPALA,
LAVENDER, J.,
and
positions
The
taken
retailer.
adverse
II,
concur in Parts I & dissent from
always quickly
the retailer were
defused Part III.
by the statements of counsel for the whole-
HARGRAVE,
SIMMS, J.,
C.J. and
professional
saler in a firm but
manner.
dissent.
bolstering
Some of the
statements
can
wholesaler’s counsel
be found
SUMMERS, Justice, concurring.
closing argument:
excerpt from the
I
separately
explain
greater
write
to
simple
the matter
The
fact of
is—is
wholesaler,
why
Clayton
detail
Pro
propane
that the
sold Kerr McGee is
pane,
Inc. should have it’s
fee
they
Nobody’s
as safe as
can make it.
retailer,
paid,
why
Valley
Kiamichi
up
way
prepare
with a
to
for what
come
Co.,
LP Gas
should not. The issue before
I
people will do.
am sure if there was a
us is the extent of a manufacturer’s obli
way,
way, you’d
a safer
have heard testi-
gation arising
products liability
from a
suit
“Well,
mony
saying,
that witness
indemnify
product.
to
a distributor of his
they ought
Phillips
doing
to do what
is
requirement
of such indemnification
system
Phillips
because
has this new
recognized
Hendricks,
was
v.
Braden
Or, “Well,
that’s a lot safer.”
there’s a
(Okl. 1985).
legally pay, bound to the defendant jurisprudence “While does Oklahoma’s paying. the one Illustra- reimburse so statutorily right not have a unrestricted rights of this are tions of found tortfeasors, among joint of contribution indemnity in favor of a contribution right it does recognize a joint surety or of a tort-feasor.... only constructively when one—who obligation held exist same has been liable to injured and was in no money pays compulsion where one under responsible manner harm—is paid, even ought that another to have compelled damages because of the legally though that other was not liable.” tortious of another.” act Braden Quasi-contractual Corbin, Obligations, Hendricks, P.2d at (1912). (Em- 21 Yale L.J. *5 Thus, the omitted). obligation manufacturer’s arises original; phasis in footnotes constructively because the is lia- distributor Thus, just joint as tort- indemnity between act, for the wrongful ble manufacturer’s may give of feasors rise to a cause action obligation sounding quasi- and the one in is quasi-contract, obligation upon of based contract. distributor is one to his quasi-contract. Imposition quasi- of the of argue The wholesaler and retailer is contract as between tortfeasors based attorneys' paid by their fees must be upon responsibility, their relative moral of manufacturer because 15 O.S.1981 primarily responsible the one and 427(3). provision That states: § wrong consequences. F. bears Wood- indemnity against “An claims or de- ward, Quasi Contracts, The Law 406- of mands, liability, expressly or or in other (1913). recognized princi- We a similar 409 terms, equivalent of embraces the costs Price, ple in Fakes et al. 18 Okl. v. 89 claims, such demands or (1907), P. 1123 wherein we stated faith, good in the incurred among rule that “It is well-established exercise of reasonable discretion.” wrongdoers implied law raises no misinterpretation Their of 427 becomes § contribution; right or promise of the le- apparent once the manufacturer’s noncon- being, pari potior gal maxim ‘In delicto obligation is understood tractual conditio defendentis/ This rule est quasi-contractual. to be subject persons to the im- express be either or wrong may have Contracts
jointly liable
con-
express
wrongful
no
15
131. In an
plied.
tribution where there was
O.S.1981 §
Oldham,
ed,
remedy,
Century
purpose
affording
Reinterpretations
18th
for the
of
as if
J.
Woodward,
they
contracts".
The
Theory:
were
F.
Law
View
Mans-
Contract
The
Lord
Contracts,
(1913).
Notes,
(1988).
Quasi
1 at 1
§
76 Geo.LJ.
Trial
1963
field’s
Mansfield’s often
language
quoted
was:
”[i]f
development
of contribution between
obligation,
be under an
from the ties
defendant
genesis
joint
from the
tortfeasors
distinct
refund;
implies
justice,
natural
the law
of
debt,
pro-
quasi-contract. The
law did not
common
action,
gives
equity of
founded in
joint
vide for contribution between
Boyles
tortfeasors.
case,
upon
plaintiffs
it were
a contract
Co.,
Gas
619
v. Oklahoma Natural
P.2d
contractu,’
express-
(‘quasi
as the
ex
Roman law
Indermaur,
(Okl.1980);
Principles
1914).
617
J.
it).”
Geo.L.J. at 1964. In the late
Id. 76
es
eighteenth
Law,
(12th ed.
Common
334
Five
century
quasi-contractual
a form of
quasi-contract
listed in Justini-
were
forms
whereby
obligation
plaintiff
could
Nicholas,
was created
B.
An Introduction to
an’s Institutes.
between
Law, 158-159,
contribution
co-sureties
obtain
227-233
A. Ste-
Roman
phenson,
contractors,
Law,
law
joint
common
History
’’[b]ut
Roman
joint
(1912).
agreed
giving
remedy
generally
stopped
that the
the same
It is
founda-
short of
Baker,
quasi-contracts springs
Eng-
modern law of
An
tion of
J.
Introduction to
tortfeasors”.
opinion
(2d
1979).
in Moses v.
Mansfield’s
Legal History,
from Lord
Mcferlan,
312
ed.
lish
Eng.Rep.
676
2 Burr.
express
implied
tracts” in Title 15 are
are stated words. 15
contract the terms
implied
In an
contract its
fact,
indemnity sought
O.S.1981 132.
and since
are manifested
con-
existence and terms
arise,
all,
quasi-
if at
present case must
implied
133. An
con-
duct. 15 O.S.1981 §
contract,
apply. As
section 427 does not
implied
Ray
in fact.
F.
tract is a contract
develop,
we shall
a manufacturer’s obli-
Supply
v.
Fischer Co. Loeffler-Green
quasi-con-
gation under
doctrine of
(Okl.1955).
express
In
3. See 3 W.S. 14-15 of of Law, 1923), (3d (1893). quote ed and the discussion 424-425 2 This from Ancient Law is also Atiyah, Freedom in P.S. The Rise and Fall approval Campbell, cited with G. A Com- Contract, (1979). Law, (2d 1892). pendium Roman 136 ed following ap- quoted the with Professor Keener Similarly, Professor Fraser has stated: (cid:127) proval: contract, quasi "A contract is not a and the used, "‘Quasi,’ exclusively a term of so is applicable substantive law of contracts is not English usual with classification. It has been liability agreement because is not based on an identify quasi-contracts with im- critics plied Instead, parties. between the contracts, error; for im- but this is an imposed by based on Fraser, Contracts, which is law.” G. contracts, qua- plied which are true contracts Contracts, Quasi and Plead- not_ Law, Maine, Ancient si-contracts are (1974). ing, 27 Okl.L.Rev. Keener, ed., A Selection 4th W. 343-4."
3Q3
has
that:
as
10. Professor Woodward
stated
Quasi-contracts
been defined
“le-
have
arising
receipt
... from the
gal obligations
benefit to the defendant
not less
“[t]he
which is un-
the retention of
saving
of a benefit
ex-
real because
consists of
just,
requiring
obligor
make
penditure rather than an addition to his
Woodward, The Law
restitution.” F.
Quasi
Woodward, The Law
estate”. F.
Quasi Contracts,
(1913).
2 at
Profes-
§
(1913).
Contracts,
We have
stated:
sor Corbin
recognized
principle
defining
the same
plaintiff
“In some
where the
instances
term “unjust
enrichment”.5
voluntarily
benefit
has
conferred a
“ ‘Unjust
arises
enrichment
latter’s
the defendant without
re-
person
expenditure by
where an
one
adds
obliged to
quest, the defendant is
reim-
another,
property
to the
but also
case
plaintiff.
Such
burse
was
expenditure
where the
saves the other
negotiorum gestio,
law
Roman
known
”
expense
or loss.’
et al.
McBride
managed
affairs in
where one
another’s
202 Okl.
Bridges,
absence, and
the latter’s
to the latter’s
Quasi-contractual
Corbin,
benefit.”
21 Yale L.J.
Obligations,
Hendricks, supra,
In
held
Braden v.
we
that a
principle in
successful defense of
manufac-
recognized
Berry
a similar
We
Barbour,
(Okl.1955).
turing process
P.2d 335
by
a manufacturer would
general
a con-
case a
contractor had
subsequent
his
bar
suit
distribu-
repair
building.
with an
his
tract
owner
tor based on an identical claim.
Id.
building
During
was
repair
work the
Similarly,
P.2d at 1352.
a successful de-
damaged by
was out
fire while
owner
process
manufacturing
fense
country and no one
authorized
subsequent
would bar a
suit
distributor
in his
act
behalf.
contractor re-
Thus,
the manufacturer.
distrib-
damage
caused
the fire. The
paired
protects
utor’s successful defense
his man-
disputed.
agreed
cause of
fire was
We
subsequent
ufacturer from
suit
the un-
proposition
that a
contractor’s
plaintiff,
successful
and the distributor suf-
*7
from
Id.
quasi-contract arose
the facts.
fers a
in the form of costs and
detriment
in
received a benefit
the
owner
attorney’s
A
successful
fees.
distributor’s
building
a
his
repair
form of
to
without
for
the manufac-
defense of a claim which
and the retention of this
payment therefor
ultimately liable but for
turer would be
compensation
the con-
benefit4 without
to
defense,
the manufac-
said successful
saves
unjust.
was
tractor
a
expense
turer an
and confers
benefit
Authority
quasi-
in
explaining “benefit”
upon him.
See,
Sullivan,
plentiful.
law
T.
contract
is
sense,
In
a distributor is liable
a strict
Concept
Law
Benefit
of
the
product
defective
into
placing
for
a
Quasi-contract,
(1975),
Geo.L.J.
64
apart from
liabili-
stream of commerce
This
the cases cited therein.
author
Braden v. Hen-
ty of a manufacturer.
concept of
has
argues that the
a
benefit
However, a
dricks,
at 1349-1350.
supra,
developed a
recent times
broader definition
liability
vicarious when “a
is
party
the other
distributor’s
to include when
saves
solely
be
expense.
from an
Geo.L.J. at
defect is
attributable
Id. 64
said
respect
stated that the terms "contract
5. One
has
4. Professor Fraser has commented
author
law,”
"unjust
quantum
“quasi-contract,”
meruit cases “Unfortu-
enrich-
implied
ment,”
to Oklahoma
cases,
nately, in a
it is not clear
closely
few Oklahoma
"quantum
relat-
meruit” are
plain-
on
value of
whether
is based
separate
analytically
terms. Corbin on
ed but
Contracts,
services
the benefit to the defendant”.
tiffs
G.
or
(Supp.1989). This
has
19
court
§
Fraser, Contracts,
Contracts,
Quasi
and Plead-
duty arising
quasi-contract “is
stated
that
(1974).
ing,
441
One author
27 Okl.L.Rev.
infrequently founded on
doctrine
the receiver
has stated that "the enrichment of
Conkling’s
unjust
Estate
enrichment”.
analysis only insofar
value informs the
as it
(1943).
Champlin,
193 Okl.
goes
show
the detriment suffered
Contracts,
unjust".
giver
Corbin
19A
(Supp.1989).
However,
process
ultimately
than
would be
liable.
manufacturing
rather
pay
unqualified.
is not
system”.
in the distribution
some conduct
Id. at 1351.
In such a case the distributor
notify
manufac-
The distributor must
(the
defending allegations
is
that he
distrib-
give
opportunity
turer and
him an
to de-
utor)
wrong-
constructively liable for the
claim,
sought
fend the
whether
fees are
Thus,
the manufacturer.
contract,
427(4),
ful conduct of
under
O.S.1981 §
indemnity, Heritage
defending
suit in the
under noncontractual
distributor
Sales, Inc.,
Brokerage
supra,
v. Pioneer
&
the manufacturer
so
interests of
quasi-contracts
or under the doctrine of
ultimately
manufacturer will not be
liable
in the case before us.6 The manufacturer
thereby
and the distributor
confers
bene-
pay
defending only
should
those claims
by saving the man-
fit to the manufacturer
against the distributor which are claims of
litigation.
It is rea-
ufacturer
costs
liability
vicarious
based on the manufactur-
sonable that a
should
Thus,
wrongful
er’s
conduct.
the manufac-
liability.
legal fees which save him from
expense
turer is not liable for the
of de-
Acceptance
requires accept-
of a benefit
fending
negligence
part
claims
on the
liability.
J.H. Munk-
ance
the attendant
the distributor.
Quasi-contracts, man,
The Law of
Allocating
attorney
prevailing
fee to a
pre-
defendant/distributor
Heritage, supra,
In
the Alaska court
vailing defendant/manufacturer
does not
said:
City
Na-
violate the “American Rule”.
In
right
“If the
to costs and
fees
Owens,
tional Bank & Trust Co. v.
defending
the law suit is made contin-
(Okl.1977)
P.2d 4
we discussed the Ameri-
losing
gent on
on the merits of that
exceptions.
can Rule and its
One of the
action,
every
case the indemnitee
several federal cases we relied on was Hall
put
position
would
in the difficult
Cole,
U.S.
93 S.Ct.
attempting
lack
to show
of his own cul-
Id. 565 P.2d at
L.Ed.2d 702
n. 1
pability
aiding
at the same time that he is
In both Owens and Hall
and n. 3.
plaintiffs
by attempting
case
recognized excep-
courts discuss several
of his indemnitor” Id.
prove
Owens,
tions to the American Rule.
we
P.2d at
said:
inspire
Such a result would not
confidence
“The American Rule does not however
judicial system.
in our adversarial
Another
awarding
serve as an absolute bar to the
Heritage
following
court
rationale
attorney
fees
the absence of statute
*8
recovery
has stated that a rule that allows
or contract. Courts have from common
attorney’s
only
of
fees
if the indemnitee
recognized
days
exceptions
law
several
“penalize
party
loses would
a
for success-
general principle
party
to
that each
the
fully defending
allegations against
the
it”.
the
should bear
costs of his or her own
Standard,
Corp.,
Pullman
Inc. v. Abex
legal representation.
long
have
Courts
336,
(Tenn.1985).
recognized
attorney
may
that
693 S.W.2d
338
The base-
fees
be
a
equivalent
litigant
awarded ... where
successful
ball
would reward a batter for
out,
has conferred a substantial benefit
striking
dearly
gets
but cost him
if he
person[s]
a class of
and the court’s shift-
a hit. Just as
a rule would be inimical
such
ing
operates
spread
the fees
of
to
the
to the
so it also
interests of baseball
runs
proportionately among
costs
the mem-
adversary
counter
Anglo-American
to the
Id. of the benefited class.”
bers
litigation.
tradition of
These concerns un-
7.
P.2d at
requiring
derscore the reasonableness of
a
pay
attorneys’
to
for those
costs
power
The
to award
fees in such
equitable power
incurred
the defense of claims for which
a case is an
of the court.
required
part
6. A formal tender is not
if the
a
of that
Hanover
manu-
action”.
Limited
Co.,
(Utah
given
underlying
facturer is
notice of the
action
Cessna
Aircraft
"particularly
party
App.1988).
impose
principle
if the indemnitor is a
to the
I would
that
on
present
action and the
claim of
case.
indemnitee’s
4-5,
party pay for the services
Cole,
making
than
a
at 412
S.Ct.
U.S.
Hall v.
party
equitable power
received.
This
1945-1946.
spreading
the costs of
used
may be
present
attorneys
In the
case
apart
any
bad faith
litigation
Valley
Clayton Propane, Inc. and Kiamichi
parties.
participated
LP
Co.
the defense
Gas
“
cases,
shifting’
justified
in these
‘Fee
products
Independent
claim.
faith’ of
‘bad
not because
negligence
alleged against
were
acts
but, rather,
allow
because
defendant
‘[t]o
by plaintiff
dropped
prior
them but
were
to obtain full
from the
the others
benefit
trial. The
cause of action that went to
plaintiff’s
contributing
efforts without
products liability.
strict
trial
based on
litigation expenses
equally to
would
correctly points
majority
out that the
plaintiff’s
enrich
at the
ex-
be to
others
”
position
at trial
counsel for
advocated
1, 5-6,
Cole,
pense.’
412 U.S.
Hall
contrary
Valley
Kiamichi
LP Gas Co. was
1943, 1946-1947, L.Ed.2d
93 S.Ct.
interests. Kerr-McGee’s
Kerr-McGee’s
respect
at
position
trial with
to Kiamichi
as the
This has been referred to
common Valley was
of closing
not one
ranks and
doctrine, although
require
it does not
fund
uniting
a
foe.
defend
common
creation
a fund.
the actual
Mills
raised
at
Kerr-McGee rather
as a defense
Auto-Lite
396 U.S.
Electric
Tommy Ayers,
oper-
trial the
actions of
616, 24
L.Ed.2d 593
S.Ct.
Valley.
un-
ator Kiamichi
Kerr-McGee
that this
Court stated that
fact
suit
“[t]he
derstandably
not want
for the
does
yet produced,
may
pro-
never
has not
expenses
Valley’s
of Kiamichi
defense of a
duce, monetary recovery from which
a
(even though
products liability claim
paid
preclude
could be
does not
fees
have
in liability
could
resulted
for Kerr-
on this
award based
ratio-
fund]
[common
McGee)
Val-
because counsel
Kiamichi
at
Three defendants— the manufacturer’s current status Refining Corporation Kerr-McGee [Manu- forms distributors, product its Fite, vis-a-vis immediate facturer], Clayton d/b/a Pro- J.D. remote, [Wholesaler], and one an indemnitor pane, Inc. Kiamichi Val- from ley LP ex- Gas Co. loss to that more akin to an [Retailer]—came by wrongful onerated verdict death against liability. indemnitor appeal action. The latter two [claimants] Although join giving I birth to manu- postjudgment disposition from an adverse liability facturer’s for the marketer’s exon- ancillary against of their claim Manufactur- expenses, eration-related defense I would litigation er for counsel fees and other ex- actionability, confine the new claim’s penses defending incurred when the law- now, cases; least for to death I would suit.1 today impose upon the manufacturer a marketers, duty provide request, on I. legal services, to be afforded either BY THE TODAY’S HOLDING COURT by separate representation, common or strategy dictate; may choices I would also pronounces The court a new prescribe distinctly parameters different when, products the American Rule: in a liability for exonerated contest, self-pro- marketers’ liability the manufacturer and its legal (a) (wholesalers, cured services where co-defendant manufac- “marketers” dis- retailers) representation reject- tributors or are turer’s tendered exonerated verdict, (b) may marketers recover from ed and manufacturer refused to provide fees and other any defense services.3 products liability 1979) (manufacturer, 1. The was tried duty action theo- who had a to defend ry Allegations negligence marketers, alone. breach its defense; refused to take over the warranty, initially advanced "right indemnity” retailer's was held Manufacturer, claimants as well as Co., were later controlling); Boudreau v. General Elec. voluntarily part dismissed. A substantial (1981) (the Haw.App. 625 P.2d litigation expenses incurred the claimants 9) (manufacturer, syllabus ¶ court’s who had defending have been attributable to certain service, ignored the seller’s tender of defense independent pressed solely claims them. "general litiga- was held liable based on law” for expenses clearly beyond Those are the ambit of seller); expenses incurred tion exonerated liability indemnity, Manufacturer’s they since Corp., Pullman Standard v. Abex 693 S.W.2d utterly are unrelated to its accounta- (indemnitor/indemni- (Tenn.1985) bility product’s safety. for the relationship provides tee the basis for the manu- excep- facturer’s under a court-created indemnify vicariously pre- 2. The liable Rule); tion to the American Hanover Ltd. v. vailing party litigation exoneration-related Cessna 447 and 450 Aircraft expenses was to the unknown common law in (Utah 1) (recovery App.1988) allowed if the context status-based re- master/servant defective, 2) product is the mar- manufacturer’s lation. See the cited authorities note 15. infra *10 wrong no vis-a-vis keter committed the flawed 3) product and the manufacturer had notice of jurisdictions, 3. In other when the manufacturer claim). indemnity and its co-defendant-marketers all have been liability have held that because Other courts marketers exonerated from harm, for have would have been entitled indemnification for courts held the manufacturer liable them, against may upon any judgment they recover its co-defendants’ counsel fees various See, grounds. e.g., Heritage litigation expenses the manufacturer in- v. Pioneer Broker- (Alaska Inc., 1059, Sales, age successfully defending product-re- & 604 P.2d 1067 curred in
307 Moreover, not, Lastly, part today’s I concur in that does I as the court would claim; that denies Retailer’s as judgment new rule today, allow the sweep, fully retrospective disposition but court’s of Wholesaler’s have a for the case, teachings demand, join opinion only restrict its to this I would insofar pro appellate in trial or currently cases it in a new claim for an ushers cess, arising claims and all marketer’s from exonerated af future pronouncement’s date4 ter the expenses incurred for manufacturer effective I additional would create to To the legal defense services shown self-procured require manufactur day which would significant, to have been essential —one re provide ers to defense services unique. give purely prospective a
quest would
—I
arising
apply
effect and
it
claims
II.
app
mandate in this
after the issuance of
eal.5
THE AMERI-
THE PRESENT STATE OF
part
opinion,
In
III
the court con-
of its
CAN RULE AND THE NEED FOR
cludes
because Wholesaler’s
ESSENTIAL
INCORPORATION OF
Manufacturer, Wholesal-
benefited
efforts
THE
INTO
NEW EX-
SAFEGUARDS
I would
er should be allowed
recover.
BY
CEPTION CREATED
TODAY’S
view,
my
market-
deny that claim.
In
PRONOUNCEMENT
bring
purview
er did not
itself within the
Rule,
American
which obtains in
today’s
new
to the American
contribution,
Oklahoma,6
way
party responsible
by
makes each
Rule because its
made
services,
expense
for its own counsel-fee
in the ab-
self-procured
was
unique
contrary
statute or
to be
and essen-
sence of
contract.
significant,
shown
tial;
recognize
merely
Although
Manu-
this State does
at least
Wholesaler
reinforced
aligning
equitable exceptions,7
neither of the
position by
facturer’s
itself
two
indemnity claims be-
the mainstream of common defense efforts.
exoneration-related
Petroleum,
See, e.g.,
Harry
Cotton
v.
Indus
R. Carlile Trust v.
lated claim.
Pender
See
Skillcraft
45,
tries, Inc.,
438,
(Fla.App.
Okl.,
(1987).
358
47
4 Dist.
So.2d
732 P.2d
446
10,
Co.,
Hardwick,
1978); JKT
v.
S.C.
Inc.
284
329,
(App.1984);
S.E.2d
333
Piedmont
325
Pipeline
Alyeska
Co. v.
See
Service
Wilderness
Co.,
Mfg.,
Equipment
v. Eberhard
Nev.
Inc.
99
240,
1612, 1624,
Society,
44
421 U.S.
S.Ct.
95
523,
256,
(1983).
Maple
665 P.2d
260
Accord:
Hoebel, Okl.,
646
141
Moses v.
L.Ed.2d
1036,
Corp.,
Chair Co. v. W.S.Badcock
385 So.2d
P.2d
Dist.1980),
(Fla.App. 1
where the court
equitable
no
basis for exonerated retail
knew of
Owens,
City
& Trust Co. v.
7. See
National Bank
against the
counsel-fee award
er's
when the
(costs,
Okl.,
(1977)
including
P.2d
7-9
product’s alleged defect
uncon-
stands
fees,
be assessed
demned
verdict.
litigation
causes another
misconduct which
generally,
Attorneys’
also
Annot.:
Fees in
See
Products
needlessly); State ex rel.
incur counsel fees
Suits,
Liability
flowing
liable for the
under
from the same transaction or occur-
held
Act)..
precipitated
Claims
rence that
the action.
the Federal Tort
supra
16. See the authorities cited
note 15.
Cizauskas,
Stulginski v.
125 Conn.
15.See
A.2d
Porter v. Norton-Stuart
O.S.Supp.1986
pro-
17. The terms of 23
Enid, supra note 12 at 115
Pontiac-Cadillac of
vide:
(in
question
context
the master/servant
damages
personal inju-
right
any action for
whether indemnitee had the
to recover
"In
death,
resulting
ry except injury
or in
litigation expenses
was not
from indemnitor
review);
rights
damages
personal
Annot. Servant’s
there tendered for
liability
action
shall,
adjudication
wrong-
subsequent
negligent
on the
or other
court
to master
prevailing
injury
person
property
motion of the
ful
of master or of
merits
party,
responsible,
a claim or
person
determine whether
third
for which master is
Missouri,
by nonprevailing party
action
&
2)
III.
represen-
tenders
If the manufacturer
it,
rejects
tation but the marketer
QUASI
EXTENT
AND THE
CONTRACT
latter can recover
those
self-
THE DUTY I WOULD IMPOSE
OF
provided
sig-
that
procured, services
TO PRO-
UPON MANUFACTURERS
unique
compo-
essential
nificant,
and
VIDE LEGAL DEFENSE SERVICES
nent
defense.
concept
unjust
enrichment—the
3)
requested legal
If marketer
servic-
implied
prerequisite
imposition
law’s
pro-
manufacturer refused to
es but the
indemnity requires
promisee receive
that
—
form,
then the marketer
vide them in
promisor’s benefits under circumstances
indemnity for
would be entitled to full
give
equitable accounta
rise to
or
self-procured defense services.
all
Quasi
bility.18
jurisprudence
contract
who,
4) A
without consultation
marketer
favorable treatment
from a
withholds
manufacturer, pro-
notice to the
with or
claimant who did not further the best inter
legal representation is to
cures its own
party against
est of the
whom
is
litigation ex-
be denied
sought.19
example,
implied-in-law
For
penses.
promise
will not be raised
favor of the
law’s familiar
volunteer20 or
5)
“officious
requested
If
counsel were
separate
i.e.,
self-serving
intermeddler”
one
provide
would
but all the manufacturer
21—
performance
whose
was neither beneficial
ex-
representation,
common
then the
necessary.
nor
onerated marketer would be entitled to
indemnity upon showing
full
that com-
To the extent a marketer refuses the
representation would have been
mon
manufacturer’s tender of defense services
injurious
legitimate
counsel,
to its
trial strate-
separate
and unnecessarily hires
self-serving
the marketer becomes a
in-
gy-
fees,
Russell, Okl.,
522,
attorneys
respect
to such
v.
incurred
Roussel
339 P.2d
527-528
added).
Okl.,
344,
(emphasis
(1959);
Goldberger,
claim or defense."
v.
Jones
323 P.2d
228,
(1958);
Lassiter,
Rogers
346-367
v.
196 Okl.
Etc., Okl.,
Roofing,
Welling
v. American
617
632,
(1945) (the
syllabus
P.2d
164
633
court’s
206,
(1980); Conkling’s Estate v.
P.2d
209
¶ 1).
79,
(1943) (the
Champlin,
Okl.
Rule, likely will become all manufacturers right I would that Wholesaler’s hold unconditional, obligors for open-ended securely indemnity would be anchored on by prevailing market counsel fees incurred implied-in-law obligation only an that if indiscriminately as de haled into court ers show that it had made a marketer could groundless in controversies fendants unique significant, essential and contri- legal counsel pressed by irresponsible to the defense. This it bution makes them amenable whose conduct recovery, did not do. The measure of Rule 11 sanctions.24 today which the court extends to Wholesal- er, during the norms I that should be reserved—under
Both claimants assert here “informally” apply prospectively25 would market- discovery they had re- pretrial —for representation had request take over the ers whose for quested that Manufacturer rejected. rejection. wrongly met with been action’s defense and 2011, provides per- O.S.Supp.1987 person officiously a which "A who confers benefit upon part: another is not entitled to restitution tinent added). (emphasis therefor." motion, paper "Every pleading, of a and other attorney party represented by an shall be applied Quasi-contractual be (or will not attorney signed by record in at least one clearly appears would- that the claimant if name, address and Okla- his individual whose expenses promisee) his own be incurred identification number homa Bar Association advantage, or and not for benefit promisor; * * * signature of an shall be stated. attorney party a cannot his own volition acting party a certificate obligation or constitutes an in his in his create favor motion, pleading, or a need that he created. him that he has read own interest based on 335, Barbour, Okl., knowledge, Berry paper; P.2d to the best of his See other information, (1955); Bridges, McBride v. 202 Okl. formed after reason- and belief Miles, grounded Everhart v. 47 Md. inquiry and is able it is well fact App. good 422 A.2d by existing faith law or warranted modification, extension, argument or for the may exposed 23. Because manufacturers law, existing that it is not reversal of by irresponsi- groundless pressed controversies any improper purpose, interposed such counsel, the manufacturer should be ble unnecessary delay cause or to harrass or to indemnify a marketer with under no litigation. in the cost of needless increase liability coverage. products public When or * * * motion, paper pleading, other or If claim, marketers faced with a frivolous those rule, court, signed of this in violation legal representation to their should look for initiative, upon shall motion or its own to the manufac- insurers —without recourse own turer —or let the it, person signed rep- impose upon who manufacturer assume the bur- both, appropriate party, or an sanc- resented short, I would their entire defense. den of tion, which include an order deny indemnification to insured marketers for parties amount of the the other or expenses self-procured defense incurred without expenses incurred because of the reasonable with, representation request consultation motion, paper, filing pleading, or other by, the manufacturer. (em- including fee.” a reasonable may subject added) Pressing groundless phasis claim Okl., also, City, City See plaintiff’s to Rule 11 sanctions. Oklahoma counsel See Winters York, Corp. City Eastway New Const. n. 22 (2d Cir.1985). Oklahoma’s F.2d counterpart Fed.R.Civ.P., opinion. part II of this 25.See is found in of Rule under indemnifica- principles established IV. jurisdiction. tion law this SUMMARY I am state that Chief authorized to Jus- carving court out new join I joins tice HARGRAVE with me that allows exception to the American Rule expressed views herein. recov- marketer counsel-fee an exonerated ery against equally manufac- victorious but would such claim’s
turer, I confine actionability, to death now, least for *15 teachings
cases apply today’s and I would case, currently to
prospectively those appellate to all process,
in trial or arising pronouncement’s after
claims join willing date. I to effective would be Matter of In the the REINSTATEMENT in transforming the court the manufactur- M. OF Robert CANTRELL Member from er's status that of indemnitor from ship in the Oklahoma Bar Association loss to one more akin to indemnitor Attorney. and to the Roll of (a) liability,26 change if this were restricted SCDB No. 3579. which, today wrongful litigation, death class, legisla- as a stands unaffected Supreme Court of Oklahoma. (b) fee-shifting regime tive of § Dec. 1989. retrospective sweep. a fully given were not As Dec. Corrected The court concludes that Wholesaler’s legal services conferred a substantial bene- view, my
fit Manufacturer. received via
advantage Manufacturer nothing
Wholesaler’s defense effort purely
more than incidental benefit de- pro align- from the
rived latter’s forma ment the same the table.” “on side of I deny quest hence
would Wholesaler’s fully judg- today’s I
indemnified. concur denies Retailer’s claim.
ment insofar as openly marketer’s hostile trial
That strate-
gy, pursuit simply failed to confer whose benefit, legal
on Manufacturer contrib- absolutely nothing
uted
exoneration.
Lastly, I would fashion a new provide marketers with
manufacturers request. defense services on This prospec- purely
requirement would have a effect, extending teachings only
tive its arising after of man-
claims the issuance
date. Justice,
SIMMS, dissenting. I respectfully
I must dissent. would appellants’ facts
deny both claims as the do support any right to indemnification against liability, supra note loss and that see 26. For the distinction between