Schneider National, Inc. v. Holland Hitch Co.

CARDINE, Justice,

dissenting.

This case may produce more litigation, more business for lawyers, more costs and expenses to the legal system, and more confusion and uncertainty in the law than anything since centuries ago when a forgotten English Lord sitting on the King’s Bench squinted through a dense yellow cloud from a fire then burning in Yellowstone and said, “let the negligence trial begin.”

A brief factual summary is helpful to an understanding of the dynamics of this litigation. A tractor-trailer being operated by a driver for Schneider National, Inc. (Schneider) separated, the trailer crossing into the oncoming lane, colliding with the Horowitz car, and killing three persons. Suit was filed against Schneider to recover wrongful death damages. Schneider, a perceptive, knowledgeable defendant, did not just fall off a turnip truck. It recognized the lawsuit as one likely to result in a large verdict and began to look for help in paying the loss. And so, as commonly occurs, it asserted the third party claims against the road contractor, Rissler-McMurry (Rissler), and the trailer hitch manufacturer, Holland Hitch (Holland), neither of whom had anything to do with hooking up the trailer. These third party defendants, incensed at being sued at all, refused to contribute to a settlement. So Schneider, after five days of trial and unable to frighten the third party defendants into contributing, weakened, decided discretion was the better part of valor, and settled, paying the total amount necessary to cause Horowitz to dismiss the cáse against Schneider with prejudice. Neither the payment by Schneider nor the dismissal of the case with prejudice discharged the liability, if any, of Rissler or Holland.

We all agree that W.S. l-l-109(d), which provides:

Each defendant is liable only for that proportion of the total dollar amount determined as damages under paragraph (b)(i) or (ii) of this section in the percentage of the amount of fault attributed to him under paragraph (b)(i) or (ii) of this section[,]

results in a defendant never having to pay more than his percentage of fault of the total damages.

If the trial had proceeded to a jury verdict, Schneider would have, pursuant to W.S. 1—1—109(d), paid his “percentage of the amount of fault attributed to him” and no more. Since he would not have paid an amount that should have been paid by another or discharged the obligation of another, there would be no right of contribution or partial indemnity.

But Schneider settled plaintiff’s claim against it and now seeks indemnity from Rissler and Holland. To recover even partial indemnity, it must be clear that Schneider paid more than its proportionate share of Schneider’s damages. It must be clear that Schneider paid Rissler’s obligation and that of Holland. One first wonders why Schneider would pay the damage owed Rissler and Holland. And then one wonders why, if Schneider did pay the obligation of Rissler and Holland, it did not obtain a release from all liability for Ris-sler and Holland.

The majority concedes that Rissler and Holland are still liable to Horowitz. The present posture of this case then, after the majority decision, is that Schneider can proceed with a partial indemnity action against Rissler and Holland and, if successful, recover a sum of money as partial indemnity for its payment to Horowitz. Then after Schneider sues and recovers partial indemnity, Horowitz can sue Rissler and Holland and recover more damages. Query — could Rissler and Holland settle this Horowitz claim and then assert a partial indemnity claim against Schneider?

First, I would hold that if a defendant pays more than his percentage of the total damages, that payment is as a volunteer, for he cannot be required to pay more than his percentage share. I ask what beneficial policy is promoted by allowing Schneider to, for example, assume and pay Ris-sler’s perceived obligation and then sue Rissler to recover payment it never had to pay but volunteered to pay? And what is the benefit to Rissler? Why should Schneider be allowed to fool around in matters concerning Rissler, Holland and Horowitz? The majority concedes that Rissler’s liability is not extinguished — it may still be sued by Horowitz and required to pay again.

Second, if not barred because a volunteer, I would hold that before a settling tortfeasor may pursue a claim for partial indemnity, it must first be established that there was payment of a sum that should have been paid by the indemnitee and that such payment extinguished the liability of the indemnitee. It is clear in this case that Schneider paid what it determined necessary to extinguish its own liability to plaintiff — no more. It paid nothing for any other alleged tortfeasor.

I would answer Question A yes, per my dissent in Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834 (Wyo.1991). Refusal by this court to acknowledge that substantial justice requires that a defendant respond in damages only to the extent of that defendant’s fault, whether the claim is in warranty, strict liability, or negligence, will continue to haunt this court and cause confusion in administering and applying the law. What justice or logic is there in allowing a plaintiff, 30 percent at fault for misuse of a product, to recover 100 percent of his damages because he alleges a product strict liability claim?

I would answer:

Question A: yes;

Question B: no; and

Question C: no.