143 Cal.App.3d 278, 67057, Wysong & Miles Co. v. Western Industrial Movers

Docket Nº:67057
Citation:143 Cal.App.3d 278, 191 Cal.Rptr. 671
Opinion Judge:[10] Lui
Party Name:Wysong & Miles Co. v. Western Industrial Movers
Attorney:[7] Belcher, Henzie, Biegenzahn, Chertok & Walker and John S. Curtis for Cross-complainant and Appellant. [8] Overton, Lyman & Prince, George M. Lindahl and Kelley K. Beck for Cross-defendant and Respondent.
Case Date:April 28, 1983
Court:California Court of Appeals

Page 278

143 Cal.App.3d 278

191 Cal.Rptr. 671

WYSONG & MILES COMPANY, Defendant, Cross-Complainant and Appellant,


WESTERN INDUSTRIAL MOVERS, Defendant, Cross-Defendant and Respondent.

Civ. 67057.

California Court of Appeal, Second District, Third Division

April 28, 1983.

        As Modified May 27, 1983.

Page 279

         Belcher, Henzie, Biegenzahn, Chertok & Walker and John S. Curtis, Los Angeles, for defendant, cross-complainant and appellant.

        Overton, Lyman & Prince and George M. Lindahl and Kelley K. Beck, Los Angeles, for defendant, cross-defendant and respondent.

        No appearance for plaintiffs.

        LUI, Acting Presiding Justice.


        Appellant, Wysong & Miles Company (hereinafter referred to as "Wysong & Miles") appeals from the judgment of the superior court

Page 280

entered pursuant to an order granting summary judgment to respondent, Western Industrial Movers (hereinafter referred to as "Movers") on the cross-complaint by Wysong & Miles for equitable indemnity and/or contribution. The grant of summary judgment was predicated on the trial court's earlier finding that a settlement by Movers with the plaintiffs Richard and Anna Leverton was made in "good faith," pursuant to Code of Civil Procedure section 877.6. 1 For the reasons indicated in this opinion, we conclude that there is substantial evidence to support the trial court's determination that the settlement was made in "good faith" pursuant to section 877.6. Accordingly, the summary judgment entered subsequent thereto was proper.


        Plaintiff Richard Leverton was injured when he was struck by a metal object while operating a press brake for his employer, Metal Working Machinery, Inc. (hereinafter referred to as "Metal"). According to Metal's president, Harry Skillman, Movers had been retained to move the press brake, a heavy piece of equipment, because of their expertise in moving industrial equipment of all sizes and kinds.

        The subject press brake was manufactured by Wysong & Miles in 1973. Wichita Clutch Company, Inc. (hereinafter referred to as "Wichita") manufactured the clutch assembly for this machine. Metal purchased this used press brake from another party. Plaintiff, and one of his co-employees at Metal were engaged to repair and refurbish the press brake. Fifty-five hours were spent refurbishing the machine and its component parts, including the clutch assembly.

        The particular press brake in question is a large piece of metal working machinery which is designed to be anchored to the floor. Movers was hired to

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move the press brake to Metal and then to move the press brake about Metal's shop once it was refurbished.

        Plaintiff was injured while demonstrating the press brake. Skillman and a maintenance mechanic at Metal named James Vickers were present when the accident occurred. According to the declaration of Richard O. Parry, counsel for Movers, the "Plaintiff was allegedly injured while in the course and scope of his employment by a press brake. The machine which allegedly caused injury to the Plaintiff was allegedly repaired by a Co-employee of the Plaintiff. It is alleged that this Defendant [Movers] then moved the machine and that the machine may have been damaged in the move. [p] The Plaintiff's employer received the machine to rebuild and rework. To make the repairs, witness Joseph Wroblewski stated that the guard was removed from the machine. The machine in question weighs approximately nine tons. Mr. Wroblewski also testified that after the machine was tested the guard was replaced. Mr. Wroblewski testified that he never heard anyone say that the Machine was damaged when it was moved by this Defendant and further testified that the accident occurred two to three months after the machine was moved. [p] Mr. Wroblewski testified that it was he, Wroblewski, and the Plaintiff that were primarily responsible for the repairs to this particular machine. The Cross-Complaint of Wysong and Miles seeks indemnity based on Comparative Fault. This Defendant has filed a Cross-Complaint and should this Motion be granted this Defendant will dismiss the Cross-Complaint. [p] This Defendant [Movers] has paid $65,000 to both Plaintiffs. This defendant understands that the Plaintiffs' Attorney, as part of this settlement has also compromised the lien on this case." (Emphasis added.) Counsel Parry's declaration was submitted in support of Movers' motion for an order approving the good faith settlement pursuant to section 877.6.

        In the course of discovery, plaintiff advanced two theories of liability: first, that the clutch plate or the flywheel broke as a result of a defect in manufacturing by Wichita; second, that the clutch was broken while it was being moved by Movers.

        On May 7, 1979, plaintiffs filed a complaint in the superior court for personal injuries, naming as defendants Wysong & Miles, Movers, and Wichita. After the answers to the complaint were filed, Wysong & Miles filed a cross-complaint for indemnity seeking partial indemnity on a comparative fault basis against cross-defendants Movers and Wichita. Subsequently, Wichita Clutch and Movers filed similar cross-complaints for indemnification, contribution and declaratory relief against the other named defendants.

        In December 1981, Movers filed a request for hearing, seeking a determination that a good faith settlement had been made by it with plaintiffs pursuant to

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section 877.6. Movers' motion was opposed by Wysong & Miles. On January 4, 1982, the court denied the motion.

        Subsequently, on January 13, 1982, Movers filed a motion requesting the trial court reconsider its ruling on the good faith settlement, asserting in its moving papers that the trial court did not find Movers' settlement to have been made in bad faith but instead that the issue presented by said motion would be best handled by a bifurcation at the time of trial. In its moving papers, counsel for Movers stated, "there is no evidence at this time that [Movers] did anything wrong. There is no direct evidence that [Movers] damaged the machine in question." Significantly, Movers attached a copy of a page of the deposition transcript of Wroblewski which indicates that Wroblewski had no information that the press brake was damaged during the move. Said transcript states:

        "Q. Did you ever hear either before the accident occurred, or after it occurred, or at any time up until today, that during the move that any portions or any parts of the machine were damaged?

        "A. No. The only damage I see was when I came back off vacation and looked at this machine.

        "Q. I'll get to that in a second. [p] In answer to the question whether or not at the time of the move any parts were damaged, to your knowledge the answer is no?

        "A. No.

        "Q. Did you subsequently after you came back from vacation inspect this machine and note that there were some damaged parts?

        "A. I went to look at it, yeah.

        "Q. What did you observe?

        "A. That the swivel was busted right out of the holding plate, a complete break in there in the casting.

        "Q. This was after you got back from vacation, is that correct?

        "A. Yeah, because I had to order new parts for it." (Emphasis added.)

        The motion to reconsider was opposed by both Wysong & Miles and Wichita. In its opposition papers, Wysong & Miles referred to Metal's president Skillman's statements made during his deposition that the machine could

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have been damaged during the move, attaching a portion of Skillman's deposition to the transcript. However, a reading of that transcript reflects only that Skillman heard that such a proposition had been asserted but that he had no information at all as to how or when Movers purportedly struck the machine during the move.

        Wichita's opposition papers stated that, "[e]xperts who have been consulted regarding the cause of the accident have concluded that the part which fractured and subsequently caused the...

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