Aviation Office of America, Inc. v. Alexander & Alexander of Texas, Inc. , 31 Tex. Sup. Ct. J. 497 ( 1988 )

751 S.W.2d 179 (1988)

AVIATION OFFICE OF AMERICA, INC. et al., Petitioners,
v.
ALEXANDER & ALEXANDER OF TEXAS, INC., Respondents.

No. C-7255.

Supreme Court of Texas.

June 1, 1988. Rehearing Denied June 29, 1988.

ON MOTION FOR REHEARING OF APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Our opinion and judgment delivered April 6, 1988, are set aside and the following is substituted.

This case commenced as an action by Rotor-Way Helicopter Service, Inc. against an insurance agent, Alexander & Alexander of Texas, Inc. [Alexander], and two insurance company defendants, Aviation Office of America, Inc., and U.S. Fire Insurance Company, Inc. [collectively AOA], for failure to provide requested coverage. Before trial, Alexander and AOA settled with Rotor-Way for $35,000, each funding one-half of the settlement. Pursuant to an agreement between Alexander and AOA, Rotor-Way was dismissed and the case was submitted to the jury on claims for indemnity or contribution. Based on the jury's verdict apportioning negligence 20 percent and 80 percent to Alexander and AOA, respectively, the trial court rendered judgment that Alexander recover $10,500 from AOA, thus leaving a total payment by Alexander of $7,000, or 20 percent of the settlement. No attorney's fees were awarded. The court of appeals reversed and rendered judgment that Alexander recover full indemnity from AOA, including attorney's fees. 742 S.W.2d 835. We reverse the judgment of the court of appeals.

Under its first point of error, AOA urges that it should have received indemnity against Alexander. Essentially, AOA contends it was not negligent as a matter of law and was therefore entitled to full indemnification from Alexander. Even assuming this could qualify as a "no evidence" argument, we need not address it. Although AOA's first point of error in the court of appeals alleged "there was no evidence that any negligence of [AOA] was a proximate cause ...," AOA assigned no such point in its motion for rehearing. Therefore, error, if any, has been waived. See Oil Field Haulers Ass'n v. Railroad Comm'n, 381 S.W.2d 183, 189 (Tex.1964) (for supreme court to have jurisdiction of a point of error, it must have been "assigned as error" and "distinctly specified" in the motion for rehearing in the court of appeals). In these circumstances, AOA has failed to preserve any evidentiary challenge to the jury's negligence apportionment. AOA is therefore bound by the jury's findings of negligence, proximate cause, and percentages against it.

Next, AOA argues it was error for the court of appeals to award indemnity in favor of Alexander. We agree. In Cypress Creek Utility Service Co. v. Muller, 640 S.W.2d 860, 863 (Tex.1982), we held that the comparative negligence statute "has abolished the common law doctrine of indemnity between joint tortfeasors even though the statute does not expressly mention that doctrine." The only remaining vestiges of common law indemnity involve purely vicarious liability or the innocent product retailer situation. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 819-20 (Tex.1984). Neither party contends for indemnity by contract, as in Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705 (Tex.1987), nor are there any jury findings which might trigger a statutory indemnity right. See, e.g., Tex.Bus. & Com.Code Ann. § 17.555 (Vernon 1987). It is clear that Alexander is only entitled to contribution, which in effect is what the trial court allowed. Alexander urges alternatively that it is entitled to a remand to the court of appeals for consideration of Alexander's cross-point in that court urging there was no evidence of Alexander's negligence. We agree that Alexander's cross-point was preserved. However, we disapprove Alexander's suggestion that its cross-point, if sustained, would authorize full indemnity, including attorney's fees, as previously awarded by the court of appeals.

The decision of the court of appeals is in conflict with this court's opinions in Cypress Creek and Bonniwell. Pursuant to Tex.R.App.P. 133(b), we grant the writ of error and, without hearing oral argument, a majority of the court reverses the judgment of the court of appeals and holds that Alexander is not entitled to indemnity. This cause is remanded to the court of appeals for the sole purpose of considering Alexander's cross-point in that court.