Allison Steel Mfg. Co. v. Superior Court of Maricopa County, Division Three
| Decision Date | 26 June 1973 |
| Docket Number | DORR-OLIVER,Nos. 1,INCORPORATED,DORR-OLIVE,CA-CIV,s. 1 |
| Citation | 20 Ariz.App. 185,511 P.2d 198 |
| Parties | ALLISON STEEL MANUFACTURING CO., a corporation, Petitioner, v. SUPERIOR COURT OF Arizona, MARICOPA COUNTY, DIVISION THREE, The Honorable Yale McFate, Presiding; andINCORPORATED, a corporation, and E. L. Farmer Construction Co., Inc., a corporation, the Real Parties in Interest, Respondents. Morris A. STROUD and Marjorie Stroud, husband and wife, Petitioners, v. SUPERIOR COURT OF MARICOPA COUNTY, DIVISION THREE, the Honorable Yale McFate, presiding; and, a corporation, and E. L. Farmer Construction Co., Inc., a corporation, the Real Parties in Interest, Respondents. 2216, 1 2217. |
| Court | Arizona Court of Appeals |
Moore, Romley, Robbins & Green, by Kenneth J. Sherk, Phoenix, for petitioner Allison Steel.
Langerman, Begam & Lewis, P.A., by Samuel Langerman, Phoenix, for petitioners Stroud.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Westover, Phoenix, for respondent Dorr-Oliver.
Maupin, Wilson & Maud, by Donald R. Wilson, Phoenix, for respondents.
The primary special action before this court sought to set aside a denial by the Superior Court of a motion for summary judgment as to a third party complaint and cross complaint seeking indemnity from the third party cross defendant.
The procedural posture in the superior court giving rise to the primary special action was that Morris Stroud and Marjorie Stroud (Stroud) filed an action seeking damages for personal injuries received by Morris Stroud while working on the erection of a steel structure and employed by the petitioner, Allison Steel Manufacturing Co. (Allison). Named as defendants in that litigation were the respondents, real parties in interest, Dorr-Oliver, Incorporated (Dorr-Oliver) the fabricator and designer of the steel structure and E. L. Farmer Construction Co. (Farmer) the general contractor on the job. 1 Allison was Farmer's subcontractor.
Dorr-Oliver filed a third party complaint against Allison seeking indemnity from Allison for any judgment that might be entered against it in the Stroud litigation. Farmer also sought indemnity from Allison by way of a cross-claim. Allison filed a motion for summary judgment both as to the third party complaint of Dorr-Oliver and as to the cross-claim of Farmer. This motion was denied on November 9, 1972, and trial in the superior court was scheduled to commence on November 15, 1972. On November 10, 1972, Allison filed a special action in this court, being 1 CA-CIV 2216.
A recitation of the procedural manner in which this matter was handled in the Court of Appeals is also necessary for an understanding of this opinion.
This court on November 10, 1972, set the special action for a hearing and oral argument on November 22, 1972. (The trial court extended the time of trial until this date, pending action by this court.) On November 13, 1972, Stroud also filed a special action (1 CA-CIV 2217) seeking an order of this court that in the event the relief requested by Allison was denied, that separate trials be had as to the liability of Dorr-Oliver and Farmer to Stroud and the indemnity claims of Dorr-Oliver and Farmer against Allison. This court ordered the consolidation of the two separate special actions and advanced oral argument to November 20, 1972.
On November 20, 1972, following oral argument, this court entered its order, the pertinent portions of which provided:
'IT IS FURTHER ORDERED that the relief requested by petitioners Morris A. Stroud and Marjorie Stroud in 1 CA-CIV 2217 is denied and their petition is dismissed, the same being moot in view of the order of the Court in 1 CA-CIV 2216.'
Following the issuance of this order, Dorr-Oliver and Farmer filed a special action in the Supreme Court seeking a reversal of this court's decision. The members of this court were made parties to the Supreme Court special action. Pending the determination of the Supreme Court special action, this court withheld issuing its written opinion.
In the meantime, the action between Stroud and Dorr-Oliver and Farmer proceeded to trial. While the special action was pending in the Supreme Court, the jury in the Stroud v. Dorr-Oliver and Farmer litigation returned a verdict in favor of Dorr-Oliver and Farmer and judgment was entered on that verdict.
Upon this court being advised of the jury's action and the entry of judgment, the court on its own motion dismissed the special action of Allison as being moot on the grounds that the claimed indemnity against Allison would be viable only if Stroud had received a judgment against Dorr-Oliver and Farmer. This order of dismissal, however, expressly provided that the dismissal was without prejudice in the event an appeal was taken by Stroud from the judgment entered against them. Allison timely moved this court for rehearing of the dismissal order. The court, in reconsidering its previous order of dismissal, is of the opinion that the motion for rehearing by Allison is well taken, especially in view of an appeal filed by Stroud making again the issue of indemnity between Allison and Dorr-Oliver and Farmer alive, in the event the Stroud appeal is successful. For this reason and in order to settle the issues raised by this special action in the event of a retrial of the Stroud case, the Motion for Rehearing by Allison is granted.
The special action procedure is proper to determine whether the third party complaint and cross-claim should have been dismissed. Chrysler Corporation v. McCarthy, 14 Ariz.App. 536, 484 P.2d 1065 (1971).
This opinion will now deal with the merits of the Dorr-Oliver and Farmer v. Allison controversy. Since the theory of liability of Dorr-Oliver against Allison is different from Farmer's theory of liability against Allison, these two theories will be handled separately.
The underlying cause of action of Stroud against Dorr-Oliver was, as previously pointed out, the result of injuries received by Stroud when a portion of the steel structure upon which he was working collapsed. This particular structure was a digester gas cover which was to be furnished by Dorr-Oliver. This cover was to be attached by a center compression ring to the rest of the structure also supplied by Dorr-Oliver. Dorr-Oliver was also to supply specifications for the details as to the installation of this ring and the cover. Apparently, this ring was installed upside down, resulting in the collapse of the structure and the subsequent injuries to Stroud.
The liability of Dorr-Oliver to Stroud was based upon its alleged negligence in designing the cover, improper preparation of specifications for installation of the cover and improper fabrication of the steel. In turn, Dorr-Oliver's claim of indemnity against Allison was based upon Allison's alleged negligence in failing to follow drawings and plans prepared by Dorr-Oliver and the negligent installation and erection of the structure. In addition to the complete indemnity sought by Dorr-Oliver against Allison, Dorr-Oliver also sought contribution. In summary then, Dorr-Oliver's liability to Stroud turns upon its alleged active negligence in causing Stroud's injuries, and there is no relationship existing, either contractual or arising as a matter of law, between Dorr-Oliver and Allison, which would impose liability upon Dorr-Oliver to Stroud for Allison's negligent acts alone.
It is the contention of Dorr-Oliver that the doctrine of Busy Bee Buffet v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957), imposes liability upon Allison for indemnity based upon the 'passive negligence' of Dorr-Oliver and the 'active negligence' of Allison Steel. This court has, however, held that where the liability of the would-be indemnitee to the plaintiff is based upon the indemnitee's...
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