*1 inherently alleging facts which were fidavit inconsistent with
unreliable as well as no abuse of discretion record. discern We deny Ap- decision to court’s district hearing. having a motion without pellant’s Affirmed. NATIONAL, INC., a Neva SCHNEIDER Corporation; Nation da and Schneider Carriers, Corporation, Nevada al (Defendants Third-Party Appellants — Plaintiffs), CO., Michigan Cor HITCH HOLLAND McMurry poration & and Rissler Appellees Corporation, Defendants). (Third-Party No. 91-44. Wyoming. Supreme Court 9, 1992. Dec.
Larry George Argeris B. Kehl and J. Williams, Guy, Argeris, Cheyenne, White & appellants. for Gorman, Thomas Metzke and G. John J. Sharpe Applegate, K. Steven of Hirst & Cheyenne, appellee Holland Hitch Co. Hathaway, Speight, Richard Barrett of Kunz, Barrett, Cheyenne, & Trautwein
appellee McMurry Rissler & Co. Graves,
George Santini Santini & Vil- lemez, Cheyenne, Wyoming Trial
Ass’n, Lawyers amicus curiae. THOMAS, MACY, C.J., Before *
CARDINE, GOLDEN, URBIGKIT and JJ.
URBIGKIT, Justice. legal deadly
In the aftermath of a acci- along Wyoming’s Interstate dent southern Appeals the United States Court of the Tenth certified a number of Circuit Supreme questions of law to the Complex questions of the interrela- Court. tionship comparative negligence between 1-1- legislation, Wyo.Stat. tort reform indemnity, an area of com- mon law which the States Court of United nebulous, Appeals considered are before the court.
Initially, questions presented require application controlling decision found Phillips Roofing, v. Duro-Last (Wyo.1991). Phillips publish- P.2d 834 was argument. * ChiefJustice at time of oral party seeking indemnity iii.The certification order following the
ed present passively/secondarily case. Ulti- either active- Circuit in this Tenth ques- ly/primarily negligent to the certified while the al- mately, the answers principles require policy leged choices about tions indemnitor was liable on allocating common law grounds? under warranty breach of *3 prevent liability to the actor most able Wyoming’s comparative C.If current system a adopt We future occurrences. negate negligence statute does not indemnity for comparative partial right indemnity in all of the above neg- implied situations, and the absence an equitable implied in- ligence. Traditional express indemnity: contraсt of products liabil- demnity rules are stated for Wyoming permit “pas- i. law Does liability or on strict ity actions based “secondarily” negligent sively” or ac- warranty. breach inspect tor failure to whose contribut- questions certified to Specifically, party’s injuries ed to a third obtain inquire: this court “actively” “pri- or compara- Wyoming’s A. Does current marily” negligent actors who created statute, 1-1-109 W.S. negligence tive directly responsible or otherwise were damages in requires that caused third the conditions that neg- “to recover an action party’s injuries? according to allocated ligence” be Wyoming grant ii. law either Does “percentage of fault attributable “passively” negligent ac- “actively” or actor,” liability and permit strict each indemnity against an- right tors a warranty to be considered breach of other actor who was liable the third in the manner as weighed and same injuries on strict or party’s negligence determining each actor’s grounds? warranty breach of plain- “percentage of fault” corresponding injuries and their tiff’s damages? plaintiff’s liability for I. FACTS Wyoming’s
B. If current National, Inc. Schneider permit equal statute does Schneider Carriers, (Schneider)1 Inc. negligence, operate strict lia- National consideration of warranty in bility trucking July allo- firm. On and breach an interstate determining each ac- cating fault and semi-tractor trailer Schneider an damages, does actor tor’s share zone on Inter- into a construction traveled against an- have Rawlins, Wyoming. Traffic state near actor, in the absence responsible other single into had been channeled area indemnity, in express an contract of opposite traveling in directions on lanes following circumstances: point, some shared roadbed. At separated from seeking was the semi- party i. The Schneider trailer into the secondarily negligent trailer veered oncom- passively tractor. The vehicles, lane, alleged was ac- ing indemnitor struck several while the traffic negligent; tively primarily containing four members including one family, the Horo- Englewood, Colorado seeking was ii. The Horowitz, Catherine witz’s. Bruce S. or active- passively/secondarily either Michael Brandon Horowitz Horowitz and negligent the al- ly/primarily while son, Only Brian one Scott strictly were all killed. leged liable to indemnitor was Horowitz, survived. injured party; Inc., National, Inc., corporation. These five busi corpora- an Illinois a Nevada Schneider tion, litigation. corporation For parent of: Schneider named in this is the ness entities are convenience, Inc., corporation; Leasing, a Nevada National will be used the term "Schneider” Inc., Carriers, a Nevada cor Schneider National collectively parent refer to the opinion Transport, poration; a Wiscon Schneider subsidiary entities. business Lines, corporation; Tank and Schneider sin Horowitz, appointed design ad- for the defective Irving Dr. J. estates, instituted a manufacture of a hitch that was unreason- ministrator against proceeding wrongful ably dangerous death at the time it was sold. Brian Scott Horo- Second, on behalf of express Schneider war- 5, 1988, (Horowitz). April Filed on safe, witz that the hitch ranties merchanta- brought in the United States action was Third, ordinary and fit for its use. ble for the District District Court manufacture, negligent design, testing, in- diversity jurisdiction, 28 federal under supply spection and of the hitch. complaint, seeking ac- U.S.C. 1332. theory indemnity recovery Schneider’s damages, alleged Schneid- punitive tual and negligence. Rissler was Schneider negligent entrustment er’s alleged duty per- Rissler breached its and trailer in operating the tractor in: form the construction work a safe and *4 condition; (2) dangerous fail- an unsafe and prudent Specifically, manner. Schneider trailer; (3) ing inspect the tractor and alleged duty provide failed in its Rissler employee; failing to hiring an unfit “non-dangerous” by-pass. traffic supervise employees conducting inspections challenged Holland and Rissler the suffi- trailer; (5) failing tractor and ciency allegations by filing of Schneider’s company policies make and enforce motion to dismiss for failure to state a and; (6) operation of vehicles entrust- safe upon granted. claim relief could which be ing the tractor and trailer to an unfit driv- 12(b)(6). Following briefing and a F.R.C.P. mixture “ac- allegations er. The state a hearing, the United States District Court “passive” negligence. forms of tive” and Wyoming granted for the District of responded wrongful Schneider third-party motion and dismissed the by filing third-party com- death action disposi- Holland and Rissler. In its Company Hitch plaint against Holland order, tion the United States District Court (Holland) McMurry Company & and Rissler stated its view of .the issues which are now (Rissler). designed, Holland manufactured this court: before (hitch) the “fifth device and sold wheel” Contrary McMurry to Rissler & Com- that connected the Schneider semi-tractor assertions, pany’s common law to the trailer. Rissler was the contractor Wyoming despite is still available in supervising highway construction repeal of contribution 1986. Session time of the crash. traffic diversion at the Wyoming, Laws of Ch. Section third-party plaintiff, Schneider As the recognized implied law in- sought indemnity against third-party years at least 47 before a defendants, Rissler, any Holland and “for to contribution was created. Miller v. they, all and losses sums Oil, Wyo. 272], 243 them, pay” New York obligated be Horo- P.[] [34 Nothing repeal wrongful (Wyo.1926). witz death action. negli- allegations implied denied all indicates that indem- Schneider contribution if gence, pled “repealed.” but the alternative that court also nity was also negligent, its McMurry Schneider was disagrees Rissler & Com- with “secondary passive” and/or while Hol- was Convoy Company pany’s assertion negligence or land’s and/or Rissler’s liabili- Dana, (Wyo.1961), ty “primary active.” If indem- was and/or theory under a of im- precludes denied, argued nity was Schneider so, indemnity. the court is plied Even fault, “negligence, liability” and/or that the Schneider defendants convinced third-party should be deter- defendants to assert indemni- are not entitled “pursuant of the State of mined laws ty in this case. third-party Wyoming” because the defen- This accident оccurred after the effec- proximate dants were the “sole and direct repeal joint date for tive several * * cause of the accident adoption pure of a form of result, comparative negligence. in- As a advanced three theories of Schneider First, demnity recovery against Holland. Schneider defendants can be liable wrongful Wyo. fault. determined at the trial of the percentage of the for their 1988). 1-1-109(c) (Supp. apportioned June proved death action and fault Stat. § not will Midway through proceeding, defendants The Schneider incorrect. exclusively resulted fault if the accident Dis- Horowitz and Schneider settled. The fault of all product defect. from a action, underlying missed from the Holland par actors, including those are not who participants Rissler were not ties, in the verdict form. is included negligence, any, settlement. Schneider’s 1-1-109(b)(1)(A)(Supp. June judicially Similarly, never determined. circumstance, 1988). In there is such judicial of Hol- no determination was made no need land’s Rissler's fault. alleges that the Schneider de- Plaintiff settlement, After the the United States responsible are for their own fendants dismissed, prejudice, District Court with plaintiff conduct. As bases wrongful death action. Schneider then fail- entrustment and alleges negligent timely appeal filed a notice of the United inspect. allegations ure These are States District Court’s dismissal of the active, negligence. The passive, third-party complaint against Holland and trucking point to no one who companies appeal, Rissler. The before the United responsibilities. to fulfill these undertook Appeals States Court of Tenth Cir- *5 law, joint tortfeasors Under cuit, seeks to reverse United States indemnity against each oth- may not seek ruling that District Court Schneider had P.2d Convoy Company, er. 359 upon a claim which relief failed state is persuaded court that this rule The is granted.2 may be changed an active tortfeasor not when lia indemnity on theories of strict seeks warranty. See
bility and breach State II. DISCUSSION v. Company ex. Deere & District rel. questions The certified direct this court Court, P.2d Mont. Wyo- legal availability, in to address the (Mont.1986); Company, v. F Rael & S ming, of the remedies which Schneider (N.M.Ct. Inc., 94 N.M. 612 P.2d however, questions, certified seeks. The King Rental App.1979); & Johnson third- not answer whether Schneider’s will Superior Equipment Company complaint sufficient claim to (1979). party states a Court, 123 Ariz. 12(b)(6) dis- Wyo.Stat. 1-1- motion to In this court’s view a F.R.C.P. withstand 1988), com (Supp. ques- June the “fault” This in a certified miss. court’s role pared liability includes strict proceeding tion restricted. negligence. In warranty as well as Supreme may ques- Court answer inappropriate since the it by certified to a federal tions law only held Schneider defendants can be requested by certifying court when fault. That for their share liable court, any proceed- if there involved found, fault, on the will be measured question of law of this ing before it of the Schneider basis of conduct which be determinative state which no one else defendants for certifying in the pending then cause responsible. appears it to the court and as to which in original.)
(Emphasis
controlling
no
there is
certifying court
the Su-
in the decisions of
precedent
assumption States Dis-
United
preme
Court.
order that
would
trict Court’s
especially
position,
those
favorable to their
are
from the Certification of
2. The facts
taken
negli-
ap-
passive
Questions
might
Law and the record on
to active or
State
which
refer
parties
peal
to this
answering
this court. While the
before
a certified
gence,
role in
this court's
briefing
attempted
argument and
in oral
action
to
finding.
question
Reliance
not include fact
does
most
certain facts in manner
characterize
(B)
jury
1-13-
Inform the
11.01.3
of the conse-
W.R.A.P.
See
§§
quences
per-
of its determination of
The United
through
1-13-107
centage of fault.
Appeals for the Tenth Cir
States Court of
(ii) If a trial
the court without
apply Wyo
before
jurisdiction
cuit retains
fact,
jury,
special findings
make
de-
ming
opinion
stated in this
to the sub
law
termining
damages
the total amount of
presented
procedural
stantive and
issues
percentage
and the
of fault attribut-
appeal
of the United
parties
their
to each actor
able
whether
order. B &
District Court’s
W
States
party.
Glass,
Mfg.,
Inc. v.
Shield
Weather
(c) The court shall
reduce
amount
(Wyo.1992).
damages
determined under subsection
Comparative Fault—
Negligence
A.
(b)
proportion
of this section in
Phillips
person
amount of fault
to the
attributed
recovering
judgment against
and enter
our
question directs
The first certified
each defendant in the amount determined
1-
language Wyo.Stat.
attention to the
(d)
under subsection
of this section.
1-109,
provides:
(d)
Each defendant is liable
(a) Contributory negligence shall not
proportion
of the total dollar amount
by any person
in an action
bar
damages
paragraph
determined as
under
legal representative
or his
to recover
(b)(i)
(ii)
percent-
this section
damages
negligence resulting in
age of the amount of fault attributed to
injury
person
property,
death or in
(b)(i)
(ii)
paragraph
him under
of this
contributory negligence
if the
of the said
section.
fifty percent
person is not more than
question,
The answer to the
whether
(50%)
Any
of the total fault.
comparative negligence
proportion
diminished in
allowed shall be
principles apply
fault4
to theories of recov-
to the amount of
attributed to
*6
ery
based
strict
or breach of
person recovering.
warranty,
by
is controlled
this court’s re-
(b)
may,
request-
and when
The court
in Phillips. Answering ques-
cent decision
by any party
ed
shall:
by
tions certified
the United
District
States
(i)
jury
If a
trial:
Court,
Wyoming,
for the District of
(A)
jury
separate
to find
Direct
Phillips
Wyo.Stat.
court held
1-1-109
§
special
determining the total
verdicts
by
was “confined
its text and title to ac-
damages
percent-
amount of
and the
involving negligence.” Phillips,
tions
age of fault attributable to each actor
specific language
P.2d at 836. The
party;
operation by referring
or not a
and
limits
whether
statute
its
U.S.A., Inc.,
Any
by
Wyoming did not (amended 1977) 1986). contributory negligence by adopting (repealed The stat of bar comparative negligence. pure provided joint form ute and several Instead, original enact legislature’s the ef among joint tortfeasors and stated compara accepted form of ment a modified fect of a release or covenant not to sue. Wisconsin, per negligence tive Id. negligent plaintiff recovery by a mitted not as contributory negligence “was (b) Indemnity Contribution person negligence great as the parallel provisions The 1973 contribution sought.” recovery is against whom sections Uniform Contribution (codified Wyo. ch. 28 as Wyo.Sess. Laws Act Among promulgated Tortfeasors as 1986). (amended This (1975)) 1-7.2 Stat. § the National Conference of Commissioners as language placed Wyoming a so-called Compare Laws in Uniform State Schwartz, 2.1. supra, at state. “49%” Act Among Unif. Tortfeasors Contribution Contributory operated to bar a negligence 1-2, (act (1975) U.L.A. 57 1939 §§ negligence or her plaintiffs recovery if his 1955) 1-7.3 Wyo.Stat. with withdrawn §§ equal greater negli than the to or was 1977) 1986). (amended (repealed Otherwise, gence of the defendant. incorporated Specifically into the contribu- per reduced plaintiffs recovery was retaining a provision language tion assigned centage to his right indemnity. “Nothing in this act Systems Kirby Bldg.
her conduct. v. Min * * * [a]ny right indemnity un- affects Explorations eral existing Wyo.Stat. der law.” 1-7.4 (Wyo.1985). 1977) 1986). (1975) (amended (repealed This provision is similar to section 6 (a) Contribution and Joint and Several Among Uniform Tortfeasors Contribution Liability promulgated Act 1939.5 adoption comparative negligence general its recodified brought legislative also modification laws, including procedure provi the civil statutory authority to the common law doc- (cid:127) contributory negligence. sions of joint trines of and several contribution Wyo.Sess. ch. as Along Laws with liability. recog- law did While common numbers, legislature signing new contribution, Convoy nize a see Co. language amended Dana, (Wyo.1961), lan adopted statute and new changes permitted tort- statutory guage provisions. for the contribution paid pro more than rata feasor who had comparative negligence amendment to compel share of common other jury required statute to be informed joint pay portion tortfeasors to “consequences of its determination (co- damages. Wyo.Sess. Laws ch. 67 percentage negligence.” Wyo.Stat. through dified as 1-7.3 1-7.6 §§ (1977) (amended 1986). 1—109(b)(iii) § 1 — (1975) (amended 1977) 1986). (repealed A *8 legislative The to the “joint tortfeasor” was defined as “one of amendment its for- persons jointly severally provision or or renumbered two more contribution provisions again, specific injury person in tort the same to mer liable without reference, property, judgment provisions or not of a revised adopted whether against all or some of the Uniform Contribution been recovered version of (Commissioners specifically adopt (1975) Prefatory legislature the did not Note to 1955 5. While Among Revision). Among eight jurisdictions which the Uniform Contribution Tortfeasors the revision, adoptiоn language passed Act of the from the had the 1939 Act the time significant adaptation of 1939 an unfortunate The occurred Act was choice. individual operation Uni- Act's as a uniform National Conference of Commissioners on which defeated the uniformity may the Act account form State Laws withdrew of 1939 from law. Id. This lack legislature change study the further and revision because it had re- decision of the to the acceptance. Wyoming’s text Statutes in ceived Unif. Contribution Contribution minimal Wyo.Sess.Laws Among ch. Act of 12 U.L.A. 59 1977. See 1977 Tortfeasors (50%) had cent total Wyo.Stat. Act which been fault.” Among Tortfeasors Compare 1-1-109(a). Unif. Con promulgated permitted This amendment § Among Act of 1955 plaintiff Tortfeasors contributory negligence tribution whose (1975) Wyo.Stat. 12 U.L.A. 63-64 with found to to be recover from an § 50% 1986). (1977) (repealed Under 1-1-110 (50%) equally negligent § defendant. See statute, joint revised contribution the Schwartz, supra, at 2.1. relationship existed where two tortfeasor significant legislative The more amend persons “jointly became several more comparative Wyo ment brought fault to ly injury in tort for the same liable (codi ming. Wyo.Sess. Laws ch. wrong person property or for the same Wyo.Stat. (1988)). fied as 1-1-109 The * * 1-1-110(a) Wyo.Stat. *.” ful death comparative provision, 1- Wyo.Stat. (1977) 1986). changes (repealed The includ 1-109(d), joint limited a tortfeasor’s individ attempting to language ed distin additional damage liability ual to a the proportion of guish from contribution. percent dollar “in amount of do through 1-1-110 1-1-113 not W.S. age of the amount fault attributed any right indemnity under ex- impair ” * * * to actor. (1) tortfeasor is isting law. Where one adoption fault was another, from entitled joint on the elimination indemnity obligee is for in- right of the legislature several ac- contribution, not and the demnity and complished the 1986 amendments.6 with indemnity obligor entitled to contri- is not 1-1-109; AN ACT to amend W.S. any portion obligee from bution repeal through 1-1-110 1-1-113 re- W.S. indemnity obligation.
of his
lating
procedure; providing
that a
civil
1-1-110(f) (1977) (repealed
Wyo.Stat. §
plaintiff
in a
action is entitled
1986).
proportionate recovery
to a
of his dam-
held
This court
the revised
ages
contributory negli-
if
plaintiffs
1986)
1—110(f)
pre
(repealed
§ 1 —
gence
fifty percent
more than
right
indemnity Wyoming.
served a
fault;
(50%)
eliminating
of the total
v.Co. Northern Production
Cities Service
joint
doctrine of
and several
(Wyo.1985).
tortfeasors;
among joint
providing that
Supreme
also
Court
criti
ex-
each
is liable
to the
defendant
amendments to the contribution
cized the
percentage
tent of
of fault as com-
his
with
lan
statutes which “tinkered”
pared to
or not
all other actors whether
guage
producing substantive
without
action;
provi-
parties
repealing
to the
Builders,
change.
Phillips,
Inc. v.
ABC
relating
right
sions
contribution
(Wyo.1981).
933-44 n. 7
among joint
the effect to
tortfeasors and
(c)
given
release or covenant not
Comparative
Replaces
Fault
Contri-
tortfeasors;
joint
sue one of several
bution
effective
providing for an
date.
1986, Wyoming
Legislature
State
Wyo.Sess.
ch.
Laws
24. With
comparative negligence
again amended
legislature
changes,
eliminated
statutes. The amend-
and contribution
among joint tort-
to contribution
Wyoming to a so-called
ments moved
50%
by the
had been assured
state,
contributory
feasors which
permitting
fifty per- provisions
the Uniform
negligence was “not more than
borrowed
plaintiff
pay
to obtain contribution
joint
and several
sors who
6. The elimination
*9
Twerski,
consequence
legislative
reform
indemnity)
of
tort
is the
D.
The Joint
with Aaron
Compare
subject of criticism and debate.
Rich-
Legislative
Re-
Revolt: A Rational
Tortfeasor
Liability Among
Wright, Allocating
Multi-
ard W.
Critics,
sponse
Rev. 1125
to
22 U.C. Davis. L.
the
Responsible
Principled
ple
Causes: A
(1989)
Defense
(maintaining
of
tort
did not
that
reform
Liability
Several
Actual Harm and
Joint and
responding
captive
result
lawmakers
from
(1988)
Exposure, 21
Davis L. Rev.
Risk
U.C.
industry lobbyists
was the
but rather
insurance
maintaining joint
(arguing greater
fairness
choices).
policy
result of considered
allowing
then
tortfea-
and several
abrogation
joint
Act
that “the
of
and sev-
Among Tortfeasors
of view
Contribution
(1977)
statutory
(repealed
rights
eral
of contri-
1-1-110
Wyo.Stat.
1955.
availability
the
1986).
being that contribu-
doеs not effect
of
hypothesis
bution
The
comparative
indemnity
under
on contractual or common law
required
is
tion
not
only
responsible
grounds.”
is
fault if
actor
each
per-
the
and limited
damages equal to
the
agree
We
with
United States
attributed to that actor.
centage
fault
of
Wyoming
District Court for the District of
Keeton,
50.
See
“indemnity
held
is
still available
Wyoming despite
repeal
the
C(2). Indemnity After Contribution Re-
of contribution
Remembering
in 1986.”
that
statutes
peal
preempting
rights
common law
must be
the
Also
with
1986 amendments
repealed
construed,
strictly
Ins.
v.
Reliance
Co.
the
stat
of
contribution
provision
766,
713 P.2d
Chevron U.S.A.
indemnity
right
of
ute which assured
(Wyo.1986),
logically
it is
inconsistent
1—110(f)
Wyo.Stat.
existing
under
law.
§ 1 —
argue
repeal
statutory
that
of
authori
1986).
(1977)
The effect of this
(repealed
preserve
ty designed
specifically
“indem
exploration of whether
requires
action
an
nity
existing
under
law”
eliminate
could
legislature’s repeal of the contribution
sought
preserve.
the doctrine the statute
indemnity language or the simul
statute’s
1—110(f)(1977)
Wyo.Stat.
(repealed
§ 1 —
adoption
comparative
of
fault al
taneous
1986).
availability, in
of in
Wyoming,
tered the
1—110(f)
repeal
demnity
premised
on tort liabilit
The
of
for actions
§ 1—
1986)
(repealed
adoption
of
y-7
comparative
fault cannot be seen as
Rissler both assert that in-
Holland and
rather,
implicit prohibition
indemnity;
on
it
legisla-
did not survive the
actions
by the
must be viewed as a realization
adoption
comparative fault
tive
system compa-
legislature that under a
its
on the
supports
Holland
view based
fault,
longer
rative
no
served
contribution
joint
liability.
and several
elimination
purpose.
Nylen Dayton,
v.
See
comparative
adoption of
Rissler claims the
1112,
(Wyo.1989).
shar-
The burden
indemnity.
negligence principles
reject
ing produced by contribution was unneces-
challenges
repeal
Schneider
sary
comparative
system
under
allo-
fault
alter
provisions did not
contribution
cating
damage
upon
based
right, Wyoming,
Schneid-
percentage
negligence
to each
attributed
indemnity
er
contribution and
asserts that
actor.
a creature
Indemnity
are distinctive.
law,
only exist-
The reason for the
of the lan-
common
while contribution
inclusion
statutory
indemnity
Wyoming
guage regarding
ed in
because of
au-
in the contribu-
thority.
Lawyers
Trial
tion statute
stated
As-
Commission-
sociation,
curiae, supports
the Uniform
as amicus
er’s Comments to
Contribution
passive indemnity is
Illinois
While Schneider seeks
from Hol
abolished in
upon
adoption
land and
based
alternative theories
comparative
Rissler
fault and contribu-
obligation,
underlying
Atchison,
tion).
Ry.
T.
v. Lan
But see
& S.F.
between
and Schneider from which
Horowitz
Franco,
Cal.App.2d
Cal.Rptr.
solely
Schneider seeks
the
fore,
(1968) (discussing
applicabili-
665-66
the lack of
negligence
attributed to Schneider. There
ty
principles
comparative negligence
when
adoption
legislative
comparative
determining
ex-
whether
comparative
principles abol
fault
ists).
preclusion
basis for this
theoretical
indemnity,
ished
Schneider would be foreclosed
comparative would be
under
See,
proceeding
e.g.,
with this
action.
Bro
principles,
negligent
Co.,
chner Western Ins.
damages
responsible
at-
actor is
for those
(Colo. 1986) (holding
adoption
Colorado's
culpability. See
tributed to that actor's relative
comparative negligence and Uniform Contribu
Industries, Inc.,
N.W.2d
Tolbert v. Gerber
Among
tion
Tortfeasors Act abolished
Therefore,
(Minn.1977).
tortfeasors);
joint
between
shifting
actor is
another
Allison
Oil
113 Ill.2d
99 Ill.Dec.
v. Shell
necessary.
(1986) (holding that active-
571 comparative fault in the Wyoming, present Act of The Com Among Tortfeasors indemnity that the lan explain indemnity missioners common law status of its and statute, in the guage, as used legal in a applicability vapor is shrouded in clarify that merely attempted to the produced by more dense than smoke permit indemnity, should not the courts burning the forests of Yellowstone.9 We pay obligated to in who becomes person indemnity’s Wyo- now consider status in per the from demnity to seek contribution ming implicit and consider whether theoret- obtaining indemnity. Unif. Contribu son modifications, necessarily ical which result- 1,12 1955 Among Act of tion Tortfeasors § adoption comparative negli- ed from of (1975)(Commissioner’s 66 Comment U.L.A. gence comparative principles, and fault Akron, (f)); v. City Lattea 9 Subsection ability have or altered limited the to claim 458 App.3d N.E.2d 878 Ohio an indemnity exposed when actor has been example, the (1982). As an Commissioners paid damages, possibly to tort and master, vicariously explain that a liable for damages for including negligent the or tor- tort, indemnity could seek from a servant’s liability resulting tious others or acts of However, the has servant. servant “no the product. from the use of defective claim” to contribution from the possible Among Unif. Contribution Tort master. recognize Initially, indemnity we 1, 12 Act of 1955 U.L.A. feasors § roots principles its in of restitu- (Commissioner’s (f)). Comment Subsection unjust George tion and enrichment. E. Therefore, statute, Wyo.Stat. repealed Palmer, 10.6(c) The Law Restitution § 1-1-110(f) 1986), (1977) (repealed limited (1978). person “A unjustly who has been adopted as operation of contribution expense enriched another re- is no Wyoming and had effect quired make to the restitution other.” repeal statute not The did abolish (1937). Restatement Restitution § indemnity existed in any right indemnity, basis for from traditional Indemnity law. Wyoming at common and unequal liability, tort relied on based represent mutually exclusive contribution Palmer, 10.6(c). actors. Munsterman, v. A.F. remedies. Frazer However, one useful text notes: as 123 Ill.2d Ill.Dec. 473, 476, Ill.Dec. 527 N.E.2d [A]ny attempt to reconcile numerous However, right (1988). holding that a particularly sweeping and decisions preserved, saying we are not them, pronouncements often found right form that the exists same as it frustrating utility. an exercise adoption comparative prior to did tortfeasors, among law toas comparative particularly them, among like of contribution remaining task define fault. Our is to development, in a flux state of and evolu- indemnity.8 availability of present tion, two, aspects, ap- in some pear merge[.] C(3). Indemnity —Overview Speiser, F. Krause & Stuart M. Charles indemnity princiрles survived the While Gans, Alfred The American Law adoption W. presented implied nature the case limits contractual 8. The our involving applied proper to in- discussion demnity issues action. causes of corporation individual or ex- required pay damages posed to dur- The forest fires that burned uncontrolled negligent or tortious acts either because of ing portion of the summer of 1988 latter others, Indemnity see C.J.S. Ecosystem produced Yellowstone Greater liability incurred from the because of claims for which, according to news accounts of smoke product. See 42 C.J.S. use of defective Indem- period, across much of the western lofted nity Claims relief portions States. of the United mid-western arising express relationships, contractual Throughout Wyoming, dis- smoke-filled skies relationships, are dis- contractual orange presence closed of an obscured purposes background or cussed for contextual orange-yellow sun. only. This does alter or limit the decision availability, Wyoming, express contractual *11 572 requiring (1983)(footnotes “Joint care” cases are those both 3:26, omit- at 479
Torts § achieving optimal injurers to take care thus ted). Posner, avoidance. Landes & su- accident Indemnity (a) Role Economic key at 190. Posner believes pra, inquiry must be of our The foundation understanding when is allowed indemnity’s understanding of on an built is the economic dif- and when it is denied coupled present circumstances origins and “joint care” and “alterna- ference between relief it was de- knowledge of the with care” circumstances. Id. at 205. tive general, the action signed provide. on the desir- (b) Availability In- Limitations on party liability from a who shifting of able not have who should paid but has alone. 6 the entire burden had to bear of Restitution 76 The Restatement § Nates, Minzer, D. H. Clark Marilyn Jerome indemnity: general states a rule of Axelrod, Damages in Diana T. & Kimball who, part, or in person A whole (1989). Wyoming ac- 50.21 Actions Tort duty is owed him discharged a which shifting indemnity doctrine’s cepted the himself and anoth- but which as between case of Miller v. damages in the seminal discharged by the er should have been 272, 283-84, Co., Wyo. 34 York New Oil other, indemnity from the is entitled to P. other, payor unless the is barred provides an economic ex Judge Posner wrongful nature of his conduct. shifting indemnity’s role planation of concerning trend While the “modern provides Indemnity, explains, he damages. principles is to look to “alterna socially appropriate solution for Logging Ma equity,” Stuck v. Pioneer Richard A. Pos joint-tort” cases. tive-care Inc., chinery, 279 S.C. 301 S.E.2d (3rd ner, 6.8 Analysis Law Economic law utilized a familiar common 1986). care” inci In the “alternative ed. limiting the identifying maxim avail requires “optimal accident avoidance dent “ springs ability ‘Indemnity injurer take care.” potential one contract, expressed Posner, A. Landes & Richard William M. ” * * *.’ Bank and Trust Co. Tort Law 191 Economic Structure (Wyo. 730 n. 3 Waugh, v. (1987).10 in alterna The rationale is that 1980) (quoting Chicago and Northwestern matters “we do not want both tive care 98, 101 Rissler, F.Supp. Railway Co. precautions; to take we want tortfeasors departure point, the (D.Wyo.1960)). As a accident avoider to do so.” the lower cost indepen need for an maxim discloses the Therefore, Posner, the actor 6.8. legal relationship dent between higher prevention cost from incurring the party from seeking indemnity and the indemnity from the the accident obtains Frazer, sought. whom distinguished the actor. Id. Posner other 1251; N.E.2d at Na Ill.Dec. at un no contribution or contribution rules of Fire Ins. v. A.A.R. West tional Union Co. fault” allocation “pro rata” or “relative der (Okl. 54-55 Skyways, efficient ern producing as doctrines systems 1989). relationship independent legal applied “joint safety incentives when “ ‘under which the indemnitor owes involving “joint care.” Id. is one cases tort” Judge including by Judge transaction costs and what Pos- Posner economic theories used 10. The costs, slight upon "margin" introduced into tort a foundation increases build ner terms Judge Hand. In United States gain produce law Learned safety yield no social (2d Towing F.2d loss, v. Carroll utility of the social limit the functional Cir.1947), Judge expressed Hand his famous formula, approach provides use- its basic Hand neg- Judge Hand described formula. Posner, policy guidance. supra, at 6.1. ful occurring ligent the cost of conduct as when approach, Judge expansive Posner's more (B) product precautions less than the modeling, a ratio- demonstrates mathematical (P) magni- probability and the of occurrence precise policy tort law choices which nale for (L). expres- of loss Id. The mathematical tude persuasive. other factors B PL. While various sion is < C(4). Implied Indemnity Equitable the indem- or tort to duty either in contract *12 they owe joint duty Culpability apart from the nitee ” Union Fire injured party.’ National (a) The Active/Passive Distinction Co., (quoting P.2d at 55 Peak 784 Ins. Halliburton Oil Well Ce
Drilling Co. v.
Equitable implied indemnity’s growth
(10th
368,
Co.,
F.2d
370
menting
215
Cir. may
directly
be
traced to a reaction to the
1954)).
Restitution au
The Restatement of
prohibition
common law
of contribution.
pay indemni
explain
duty
thors
Frazer,
477,
at
123 Ill.Dec.
527 N.E.2d at
contractual obli
ty
be created
struggled
equity
1252. Courts
to do
obligation or tort.
quasi-contractual
gation,
would
situations which
otherwise
con
cmt.
76
b
of Restitution
Restatement
implied
strained since
contractual indemni
(1937).
ty actions
limited to circumstances
were
v.
Associates
Lincoln-
Richardson
indemnity,
party seeking
“with
where
Devore, Inc.,
(Wyo.1991), this
Equitable
Miller, Wyo. at
allowing
apartment.
parties
in Miller’s
fault of
relative
276-77,
indemnity by. a
who
at 119. The tenant was
243 P.
“constructively” negli-
dioxide fumes from
only “passively”
asphyxiated
carbon
Frazer,
Ill.Dec.
gent.
gas water heater.
improperly
installed
C.J.S.,
1252;
supra, at
N.E.2d
Miller sued New York Oil
purposes
negligence,
Typically, passive
company
nеgligently
had
alleging that the
failure, of
consisted
indemnity,
Miller and New
the water heater.
installed
*13
indemnity, “to discover
seeking
party
the
relationship
a contractual
York Oil did have
or misconduct
negligence
prevent the
or
heater, so,
of the water
for the installation
prudent person
ordinarily
an
another when
action as
have treated the
the court could
Tolbert
Gerber
done so.”
have
would
indemnity and
implied contractual
one for
362, 367
Industries,
Inc.,
N.W.2d
guilty
Miller
since he was
denied
precluding
negligence,
(Minn.1977). Active
failing
in
to discover a
wrongful
conduct
indemnity, “is found
availability of
failing
pipe
possibly
or
ventilation
blocked
participated
personally
indemnitee
an
However,
rule
to
his tenants.
warn
negligence,
act
in an affirmative
permitting
applied by the court
acts or omissions
negligent
with
connected
implied indemnity.
equitable
on
was based
acquiescence, or has
knowledge or
acting together,
parties,
“When two
precise duty which
perform a
failed to
act,
illegal
wrongful
or
commit
perform.”
agreed
had
indemnitee
responsible in
party who is held
Sanitation,
Pylon,
Inc. v.
Rossmoor
indemnity or
the act cannot have
453,
449,
622,
Cal.Rptr.
13 Cal.3d
other,
from the
because
contribution
fault ori-
(1975). The relative
P.2d
culpable,
particeps
or
equally
are
both
indemnity created
implied
gins
criminis,
damage
results from
burdensome,
and often
inconsistent
This rule does not
joint
their
offense.
“pas-
of “active”
nomenclature
criticized
or creates
apply
one does the act
where
negligence.
sive”
nuisance,
join
other does not
and the
negli-
phrasing,
in
ingenuity
little
With a
therein,
thereby exposed to liabili-
but is
either “active”
can made to be
gence
be
may
damage. He
recover
ty and suffers
For
the writer.
“passive” as suits
wrongful act has
whose
with
“driving an automobile
example,
par-
exposed him. In such case the
thus
“running through the
brakes” or
bad
as to each
pari
are not in
delicto
ties
“using
defective crane”
sign” or
stop
other, though
persons
third
either
as to
nеgligence,
“active”
might be said
held liable.”
may be
“omitting maintenance
brake
while
apply the
“neglecting to
fluid level” or
(quot-
Miller, Wyo. at
243 P. at
“failing
inspect
the crane
brakes”
Co., 114
ing Gray
Light
v. Boston Gas
its defectiveness”
to discover
in order
(Mass.1873)). New York Oil
Mass.
“passive” negligence
might be
—these
could not recover indemni-
contended Miller
omissions,
acts or
but
are the same
joint
tortfeasors
ty
both were
because
facts,
upon the
but
depends not
outcome
wrongdoing.
court refused
guilty of
This
to character-
someone chooses
upon how
recognize
preventing
the rule
ize them.
finding
joint
recovery among
tortfeasors
& Ka
R.
v. Whitehead
general
Missouri Pac.
Co.
exceptions
to the
many
existed
(Mo.1978).
566 S.W.2d
les
no indem-
claimed
rule. New York Oil also
Mil-
since
nity recovery should be allowed
useful illustration
provides a
Miller
negligence”
“adjudged guilty of
ler was
of indem-
the varied forms
operation
However, the
wrongful
death action.
the “ac-
vague applicability of
nity and the
“con-
negligence was
Miller’s
court said
description.
negligence
“passive”
tive”
Miller, 34
than actual.”
structive rather
Wyoming
Casper,
was a landlord
Miller
Miller,
121.
accord-
trial,
243 P. at
settlement,
Wyo.
at
after
paid a
who
court,
right
ing
had
brought by the ad-
wrongful death
improper
“joint care”
ter heater with
ventilation.
formulations of
Posner
such,
Posner,
directly
Landes &
at 206. As
ap
care” can be
and “alternative
Miller,
awarded Miller based
case
plied
another
higher
first,
relative fault
New York Oil
contradictory at
seem
Miller, Wyo.
then
Miller,
would
be available.
the court
Convoy, 359
243 P. at
that indemni
recognize the rule
refused to
joint tortfea
ty
available
is not
between
The Miller court’s determination that the
However, in
the court seem
Convoy,
sors.
party seeking indemnity
parties
“if
saying
both
ingly turned-about
rather
ac-
was “constructive
than actual”
pari delicto,
are
joint tort-feasors or
are
eq-
cepted the relative fault distinctions of
parties
contributes to
each
where
indemnity Wyoming.
uitable
indemnity ex
injury,
nо
cause an
linguistic
While the
references to “con-
11 Convoy, 359 P.2d
party.”
ists in either
“actual”
have
structive” and
distinctions, in a
Posner’s
887. Under
commonly replaced by
been more
“active”
are, as
where two actors
Miller
*14
situation
“passive” negligence, their use to de-
it, “equally culpable,” or as Con
described
availability
indemnity
termine
is
tortfeasors,”
described, “joint
they
voy
C.J.S., supra
same. See 42
at
37.
of Posner’s
function under
constraints
difficulty
application
with the
“joint
Indemnity is not available
care.”
the lack
applied
evidenced
care”
“joint
actors
obli
where both
have
following
development
concept
Landes & Pos
gation
injury.
to avoid the
implied indemnity
Equitable
Miller.
ner,
supra, at
presented
appeal
issue
been
as an
See, e.g.,
Associ-
some cases.
Richardson
operation of this
Convoy illustrates the
However,
ates,
11. Neither nor “ tortfeasors, "joint as a term ‘all cases tortfeasors.” Joint used sense to include be in a broader art, persons jointly tort, “two refers to or more joint liability whether where there is injury severally concerted, liable in tort for the same jointly the acts of those liable were Dictionary property.” Law person Black’s concurrent, point merely or even successive Hickman, 1990); (6th ed. see Garner Tolbert, n. 1 N.W.2d at 366 of time.’” standard, (Wyo.1985). Under this Leflar, and In- (iquoting Contribution A. Robert concert, act in as in an “alternative failure to Tortfeasors, U.Pa.L.Rev. Between situation, a tortfeasor from the removes care” (1932)). 131 n. 9 Convoy preclusion of indemni joint ty by a tortfeasor. persons in tort to a two or more are (1) persons are liable who liable to If two person and one It person for the same harm same same harm. third both, necessary discharges they is not act in concert of them pursuance design, from the other he is entitled to of a common nor unjustly enriched at necessary they joined be if the other would is it discharge of the liabil- expense by applies his The rule stated defendants. torts, ity. including only negligence all defamation, misrepresentation, also but in which Instances falsehood, injurious nuisance or oth- principle include the granted under this liability. er of tort basis following: (a) indemnitee was liable (Second), supra, of Torts Restatement conduct of the in- vicariously for the 886A cmt. b. demnitor; (2) details a Subsection number (b) pursuant acted The indemnitee “general recog instances where there is a the indemnitor and rea- directions of granted.” nition that should be sonably the directions to be believed (Second), supra, Restatement of Torts lawful; cmt. d. These are situations when 886B (c) induced to The indemnitee was obligations among “alternative care” exist by misrеpresentation part on the act formulations, these the actors. Under indemnitor, upon justi- which he allegations Schneider’s state claims for re relied; fiably covery against supplying Holland for a de *15 (d) supplied a defec- The indemnitor fective chattel which Schneider failed to performed chattel or defective tive discover, (Second), Restatement of Torts buildings upon land or as a result work 886B(2)(d), supra, against at Rissler § were to the third of which both liable creating dangerous a condition which innocently person, and the indemnitee discover, failed to Restatement Schneider negligently failed to discover the (Second), 886B(2)(d). supra, of Torts at § defect; Equitable implied indemnity actions under (e) danger- The indemnitor created a (Second), supra, Restatement of Torts at condition of land or chattels as a ous may premised negligence, 886B § were liable to the result which both warranty. or breach of The person, the indemnitee inno- third indemnity nature of the relief available will cently negligently failed to discover depending upon theory differ of liabili defect; ty expressed. (f) duty The indemnitor under a was protect the indemnitee to him (c) Comparative Indemnity Partial For person. against the to the third Negligence Actions Premised On general a states “broad Subsection Traditionally, indemnity shifted the en- indemnity availability. Re- principle” of tire loss the indemnitee sustained to the (Second), supra, of Torts at statement Schwartz, supra, at 16.9. indemnitor.12 § adopts cmt. c. The Restatement 886B However, (Second), § Restatement of Torts tortfeasor,” “joint definition of Restate- supra recognizes at 886B cmt. m that § (Second), supra ment of Torts at 886B courts, influential state interest b, making a tortfeasor for in- cmt. liable attaining justice, developed have a doctrine “ demnity even when no action has been ‘partial indemnity,’ proportion with the against by injured that actor brought responsibility parties depending original plaintiff: percentages upon the relative of fault.” (1) applies policy in believe sound choices and the
The rule stated
Subsection
We
tortfeasors,”
legislative acceptance
comparative
“joint
in the sense of
to all
(Second),
seeking
party
to be
Torts
indemnitee is the
who is
12. As framed in Restatement of
(Second),
886B(2),
supra,
indemnified." Restatement of Torts
at
indemnitor
is
"[t]he
sought.
cmt. b.
whom
886B
modifying
squandered
tor
argue
favor of
last clear chance * * *.
Wyoming
equitable implied
all-or-nothing rule for
on a
26,
Co.,
v.
Ill.2d
Allison
Shell Oil
modification we
theory
recovery.
496,
Ill.Dec.
495 N.E.2d
confusing separa-
adopt
also eliminates
(1986).
The traditional
doc
negligence from
passive
tion of active
shifting
trine’s
of the entire loss from one
fault determination.
the relative
example
actor to another
be another
accepted partial
previously
legal
“has
pre
of a
rule that
continued to
In
in one context.
recoveries
country
vail
this
sheer inertia rather
328-30,
Co.,
Service
705 P.2d
Cities
than
reason of
intrinsic merit.”
that,
holding
under
court reaffirmed
Co.,
United
v. Reliable
States
Transfer
(1983), express in
30-1-131
397, 410,
421 U.S.
95 S.Ct.
in
gas
oil and
agreements
(1975)(holding
nation
the harshness
ately
comparative degree
to their
of fault
*17
1-1-109;
system. Wyo.Stat.
Riden
mer
implied indemnity
equitable
in actions for
our,
in
Specifically
P.2d at 1179-80.
623
negligent
duty
premised on the
breach of a
corporated
jury’s
into the
determination of
the indemnitor and the indemnitee.
between
parties’ comparative negligence
the various
See,
Ass’n,
e.g.,
Motorcycle
146
American
comparative fault is a consideration of
182,
899; Tolbert,
Cal.Rptr.
578 P.2d
255
negligent conduct.
the nature of
Co.,
362; Missouri Pac. R.
566
N.W.2d
taken when
care should be
“[Particular
Co.,
466; Dole v. Dow
30
S.W.2d
Chemical
multiple plaintiffs
present
or claims are
so
143,
382, 282 N.E.2d
N.Y.2d
331 N.Y.S.2d
proximately
that
that
partial
or
288
Under this modified
any particular injury is considered
causes
implied indemnity, the
form of
fault as to
jury
apportioning
when
negli
“passive”
of “active” and
distinctions
and active
injury.
Passive
Ridenour,
longer determinative of the
gence,
while no
distinguished.”
must be
proper
Wyoming Supreme
previously
preme
of California reached the
has
Court
13. The
Court
approval
system equitable
expressed
developing
of the rule in American
its
in
a
conclusion
Motorcycle
Chrysler Corp.
Ass’n. In
v. Todoro
indemnity
the common
or contribution under
vich,
(Wyo.1978), Justice
law.”
Thomas, writing
majority, said "the Su-
sequent
Against
are factors to
Action
Parties Not Sued
indemnity,14
ability to seek
Action,
assessing
Original
A.L.R.5th 753
jury
weighed
be
Therefore,
Typical-
(collecting cases).
plaintiff in
parties.
fault of the
percentage of
instructed,
Wyoming, subject
join-
to the
a third-
limitations
ly,
jury
would
parties
19, may
third-party
stated
action,
if
defen- der
W.R.C.P.
party
actions,
bring
choose to
individual tort
performed
certain
dant is found
have
constituting negligence
jurisdictional or tactical reasons. See also
acts or omissions
example,
under the
permitted as a mat- F.R.C.P. 19. As
for which
facts,
(Second), present
Horowitz
law,
of Torts
sued Schneider
ter
Restatement
original
886B(2),
proceeding.
federal
and those acts or omis-
court
supra at §
injuries
Horowitz could have chosen to sue Rissler
to cause the
contributed
sions
court,
original
simultaneously
then
in a state
or at some
plaintiff,
damage to the
time,
negligence.15 An action
par-
alleging
later
plaintiff should be awarded
third-party
Co.,
also
Horowitz
Holland
have
Pac. R.
tial
Missouri
conceivable,
upon products lia-
partial
based
472. The
been
S.W.2d at
Holland,
bility
Either
paid
the total sum
theories.16
Rissler
proportion
is a
award
incurred,
could
chosen to
third-party plaintiff
original
to the
have
by the
in these
degree
seek
from Schneider
plaintiff corresponding to the
possible later actions.
third-party
defendant.
Id.
fault of
represent
rea
a second
Settlements
(d) Procedural
Issues
proceedings.
son for additional
circumstances, equitable im
Under ideal
who
is free to
While
tortfeasor
settles
plied indemnity claims will be determined
equita
any non-settling
sue
tortfeasor
cross-claims,
third-party
as
W.R.C.P.
implied indemnity, Bolamperti v. Larco
ble
origi
proceedings, W.R.C.P.
while
Cal.Rptr.
Cal.App.3d
Mfg.,
damages from all causal
plaintiff
nal
seeks
in
settling
tortfeasor
proceeding.
ly
single
actors in a
responsible
party
special
curs some
burdens as
However,
F.R.C.P.
and 14.
See also
seeking in
seeking indemnity.
single proceeding
always
is not
ideal
aof
establish that the settlement
must
Wyoming,
reasons are
two
achieved.
discharge
faith
good
was made in
apparent
pro
additional
immediately
liability.
Ameri
potential
actual
Pan
ceedings.
at 1225
Corp., 586 P.2d
can Petroleum
(holding
reasonableness
settlement
reason for additional
The first
shown and if indemnitor
ac-
amount must be
proceedings
is that
assume
adopted by
approve
declined to
settlement or
cepted
“one action rule”
defense,
prove
required
plaintiffs
to limit
indemnitee
some states
otherwise,
opportu
parties
liability;
if no
responsible
potential
causally
sue additional
in-
Annotation,
given,
defend
Polin,
nity
approve
Compa-
in tort. David
liability to the
actual
demnitee must show
Judgment Allocating
Negligence:
rative
Assur.
original plaintiff); American Home
Against
Than All
Action
Less
Fault
F.2d
Precluding
Co. Cessna
Potential
Sub-
Aircraft
Defendants
*18
against
parties.
1-3-105
"passive”
dis-
these
the former "active”
Under
tinctions, formality
(1988).
pleading
in
could have been
indemnity proceedings. The
in
determinative
original
alleging
plaintiffs complaint
"active”
deciding,
Horowitz
we
since
16.Without
note
pre-
negligence would have been sufficient
prod-
purchaser
user
of Holland’s
was
uct,
seeking
third-party plaintiff from
indem-
vent
subject
dispute,
have been
could
See, e.g.,
jurisdictions.
Beck v.
nity
some
liability.
P.G. Reit-
particularly
See
under strict
Mich.App.
Westphal,
581
indemnity
a well set
from a distributor or manufac-
Keeton,
98. “It is
supra, at §
turer,
person
is
higher up
manufacturer
under
a
the
principle that a
distribution
tled
product
See,
Texaco,
a
non-delegable duty
make
Inc.
e.g.,
a
chain.
v. McGrew
safe; may
351,
not dele
reasonably
Co.,
it
Ill.App.2d
that is
117
N.E.2d
Lumber
254
dealer,
pur
duty
the
user
gate
584,
(1969)
(affirming
right to
588
seller’s
product.” Simpson v.
the
Gen
distributor)
chaser of
indemnity
and
T.
from
Debra
479,
Ill.App.3d
74
118
Corp.,
eral Motors
Annotation,
Landis,
Liability:
Products
107, 111,
137,
455 N.E.2d
141
Ill.Dec.
Right
Indemnity
To
Manu-
Seller’s
From
146,
854,
Ill.Dec.
(1983),
108 Ill.2d
90
(1990) (collect-
facturer,
indemnity recovery in
an
third-party complaint alleges
Schneider’s
liability.
strict
on
following:
the
Further, Third-Party
Defendant
indemnity principles
Comparative
and
expressly
impliedly
Holland
warrant-
applicable
not
to reduce the amount of
are
safe,
ed that said fifth wheel was
mer-
recovery
equitable implied indemnity
chantable,
ordinary
and fit for
and in-
liability.
premised on strict
This
use;
said
tended
fifth wheel was
apply comparative
court has refused to
safe,
nor
fit
merchantable
was it
damage
principles
to reduce
recover
purpose
intended
that it was defective
liability.
in cases
Phillips,
ies
of strict
unsafe; and that as a direct and
Eclavea,
P.
P.2d at 835-37.
Romualdo
See
Third-
proximate result
Defendant
Annotation,
Comparative
Applicability Of
express
Party Holland’s breach of
Negligence Doctrine to Actions Based on
warranties, the
fifth wheel failed
Tort,
Liability in
has stated claim Cline, the court ruled damages for a breach of UCC quential predecessor Wyo.Stat. that the 1-1- warranty provisions.22 required a determination of “the *23 general accep- Developed prior to the damages percentage amount of and the of (Second), Torts of tance of Restatement negligence party” each in attributable to an 402A, warranty of ac- supra, at breach § to prem- action which the court found be liability principles to applied tions strict warranty sounding ised on a breach of both effect, seller, in an insurer of his make the in in negligence specific and contract. The Keeton, supra, safety. at 97. product’s § warranty implied involved was the warran- allocation, im- form of risk an Under this performed skillful, ty that work will in a warranty safety product of plied a careful, diligent and workmanlike manner. strict for the manufacturer created plumber A in entered an oral contract with See, e.g., Henningsen and distributors. the builders of a trailer court to do the Motors, Inc., N.J. Bloomfield plumbing work installation. When the A.2d 69 defective, proved a lawsuit was instituted. has product The action suffered complaint The stated cause builder’s a of understanding lack of the dis- from the of plumber’s action in contract. The answer contract and tort recov- tinctions between negligence to a stated defenses action. ery. challenges that example, For Holland court, distinguishing, The trial without adopted previous decisions of this court combined the actions and found that the comparative rule in breach warran- plumber properly failed to install the ty Phillips. which conflicts with In actions in a plumbing resulting of contract “breach Phillips, principles this ruled that court negligence.” and Id. at 731. The court comparative negligence first the held case stated causes of Wyo.Stat. in 1-1-109 were fault stated § in This negligence and contract. court inapplicable to actions under specific negligence at found the issue was (Second), supra, Restatement of Torts recovery damages injury for to the the warranty premised on 402A and § by plumber. property the Re- builder’s implied mer- warranty the breach of the case, manding Wyo.Stat. this court held chantability, implied of an war- (1977) (amended 1986) required 1-1-109 ranty purpose particular of fitness for a findings specific court make trial express warranty. Phil- and the breach of percentage party’s each lips, P.2d at 837. Holland finds holding this conflicts with views stated that action. Id. 732. noted, recoveries, warranty Wyo.Stat. sufficiency previously As of the 34.1-2-725
21.
complaint
Ogle,
precludes recovery.
is not at issue before
court. The
716 P.2d at
Appeals
statute,
United States Court of
the Tenth
warranty
a breach of
341. Under the
determine,
Circuit will
based on F.R.C.P. 8 and
made,
delivery
except
when
occurs
“tender
provisions, whether Schneider
other relevant
warranty explicitly
extends
fu-
where
warranty
the two
claims. We
in fact stated
discovery
goods
performance
ture
necessаry
only extent
address the issue
perfor-
await the time
such
breach must
warranty questions
answer the
presented
when the
mance the cause of action accrues
order
to this court
the certification
been discovered.”
breach is
should have
accompanying discus-
Tenth Circuit’s
34.1-2-725(b).
Holland contends
questions.
those
sion of
showing
discovery produced
evidence
hitch
prior
January
Holland,
1984.
was manufactured
22.
an affirmative defense which
action,
complaint
third-party
was not filed until
may
dispositive
prove
of this cause of
July
has answered that the statute of limitations
ruling
of the court’s
re-
The contract
such case is mere induce-
The correctness
ment,
understanding
creating
things
the state of
quires an
of distinctions be-
tort,
confu-
furnishes the
actions and
unfortunate
occasion
and in
tween
language.
remedy
The Cline court
all such cases the
is an action
sion created
ex
action,
delicto, and
contributory
that in
not an action ex
noted
a contract
contractu.
damage
negligence may reduce
recov-
Am.Jur.2d,
17A
supra, at
Cline,
specific
ery.
We answer the of this liti- gation. follows: A being operated certification as tractor-trailer National, a driver for Schneider Inc. Wyoming’s compara- A. Does current (Schneider) separated, the trailer statute, crossing negligence tive W.S. 1-1-109 lane, oncoming colliding into the with the requires damages car, killing Horowitz persons. three neg- an action “to recover Suit against was filed Schneider to recover ligence” according be allocated to the wrongful damages. Schneider, death “percentage attributable perceptive, knowledgeable defendant, did actor,” permit each just turnip fall off a truck. It recog- warranty to breach of be considered nized likely the lawsuit as one result weighed same manner as large began help verdict and to look for determining each actor’s so, paying the And commonly loss. “percentage plain- of fault” for the occurs, it party asserted third claims their injuries corresponding tiffs contractor, the road Rissler- plaintiff’s damages? McMurry (Rissler), and the trailer hitch Answer: No. manufacturer, (Holland), Hitch Holland nei- question B. The second is rendered ther of anything whom had to do with negative moot ques- answer to hooking up the These party trailer. third tion A. defendants, all, being incensed at sued at C. If current Wyoming’s refused to to a contribute settlement. So negate does not statute Schneider, days after five of trial and un- in all of the above able frighten the third defendants situations, absence of an weakened, into contributing, decided discre- *26 express indemnity: contract part valor, tion was the better and set- i. Wyoming permit “pas- Does law a tled, paying the amount necessary total to sively” “secondarily” negligent or ac- against cause Horowitz to dismiss the cáse inspect to tor whose failure contribut- prejudice. Schneider with pay- Neither the injuries ed party’s to a third to obtain ment Schneider nor the dismissal of the “actively” “pri- or prejudice discharged case with liability, marily” negligent actors who created if any, of Rissler Holland. or directly responsible or were otherwise l-l-109(d), agree We all W.S. that for the conditions that caused the third provides: party’s injuries? Each defendant is liable for that Answer: Yes. proportion total dollar amount de- grant ii. law Does either damages termined under paragraph as “actively” negligent “passively” or ac- (b)(i) (ii) percent- or section in the of this right indemnity against tors a an- age of of fault the amount attributed to other actor was liable for the who third (ii) (b)(i) him paragraph under or of this party’s injuries liability on strict or section[,] warranty grounds? having never pay results a defendant to Answer: Yes. more percentage than his of fault of the CARDINE, Justice, dissenting. damages. total may produce litigation, proceeded jury This case more If the trial had a ver lawyers, dict, have, pursuant more business for more costs and Schneider would legal expenses system, 1—109(d), to the paid “percentage and more W.S. his 1 — may pursue partial a claim for to him” and tortfeasor fault attributed amount of paid indemnity, must that have it first be established more. he would not no Since paid by an- a sum that payment should have been there was should that amount of anoth- discharged obligation paid been the indemnitee and that other have contribution er, be no payment extinguished there would such partial It clear in case that the indemnitee. this paid what it determined neces- Schneider plaintiff’s claim But Schneider settled plain- extinguish liability to sary to its own indemnity from seeks against it and now It paid nothing tiff—no more. par- even To recover Holland. Rissler and alleged tortfeasor. other clear that indemnity, it must be tial proportionate than its paid more Schneider Question per A yes, my I would answer damages. It must be of Schneider’s share in Phillips Roofing, dissent v. Duro-Last paid Rissler’s obli- clear that Schneider (Wyo.1991). Refusal first won- and that Holland. One gation acknowledge this court that substantial damage why pay would Schneider ders justice requires respond a defendant And then one and Holland. Rissler owed damages only to the extent of that defen- pay if did the obli- why, Schneider wonders fault, the claim is in dant’s whether war- Holland, it Rissler and did gation of ranty, liability, negligence, strict will all for Ris- a release from obtain this court and cause con- continue haunt sler and Holland. administering applying fusion that Rissler and majority concedes justice logic is there allow- law. What still liable Horowitz. Holland are plaintiff, percent for mis- ing a then, case after the present posture product, percent of a recover 100 use decision, pro- can majority is that Schneider alleges product he his because partial indemnity ceed with a claim? and, successful, re- Holland Rissler and I would answer: partial indemnity money as cover sum Question yes; A: Then after payment its to Horowitz. no; Question B: partial indem- sues and recovers Schneider Question no. C: nity, can sue Rissler Holland Horowitz damages. Query more and recover —could settle this Horowitz Rissler and Holland partial indemnity then assert a
claim and against Schneider? claim First, hold that if a defendant I would child, CONTRERAS, By percentage than his total pays more minor James volunteer, damages, payment Through his next friend moth CONTRERAS; than required pay er, he more *27 cannot Brenda Brenda Contreras, I percentage ask what benefi- Contreras; Ap his share. and Odorico allowing promoted by Schneid- policy (Plaintiffs), cial pellants pay to, example, Ris- assume and er then sue perceived obligation and sler’s DISTRICT SCHOOL CARBON COUNTY payment it never had to recover Rissler Shamion; 1; Wells; Kathleen # Belinda pay? And what is pay but volunteered (De Johnson, Appellees and Robert V. Why should to Rissler? the benefit fendants). in mat- to fool around be allowed Schneider Rissler, concerning Holland and Horo- No. 91-251. ters that Rissler’s majority concedes witz? Wyoming. Supreme Court extinguished still be is not —it 10, 1992. Dec. required pay by Horowitz and sued again.
Second, a volun- if not because barred settling teer, I hold that before would