Beech Aircraft Corp. v. Jinkins

• Decision Date: 26 September 1985
• Docket Number: No. 01-85-0183-CV,01-85-0183-CV
• Citation: 698 S.W.2d 722
• Parties: BEECH AIRCRAFT CORPORATION, et al., Appellants, v. Dr. Wiley J. JINKINS, III, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 722

698 S.W.2d 722

BEECH AIRCRAFT CORPORATION, et al., Appellants, v. Dr. Wiley J. JINKINS, III, Appellee.

No. 01-85-0183-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Sept. 26, 1985.

Rehearing Denied Oct. 24, 1985.

Roger A. Rider, Mayor, Day & Caldwell, Patricia J. Kerrigan, Fulbright & Jaworski, Houston, for appellants.

William L. Maynard, Susan B. Baker, Gilpin, Maynard, Parsons, Pohl & Bennett, Houston, for appellee.

Before EVANS, C.J., and SAM BASS and HOYT, JJ.

OPINION

HOYT, Justice.

This is an appeal from a take-nothing summary judgment in a products liability case. The sole question presented by this appeal is whether a settling defendant may, prior to any determination of causation, be denied contribution, as a matter of law, from a non-settling defendant alleged to be a joint tortfeasor. We affirm the judgment.

FACTS

Doctors Jinkins and Weiner were injured in the crash of a Beechcraft aircraft in April 1982. Jinkins was the owner and pilot of the plane and Weiner was a passenger. Jinkins had experienced a number of problems with the engine and demanded that the defendants, manufacturer (Teledyne) and supplier (Beech Aircraft), provide a new engine. Although Houston Beech installed a new engine, the plane crashed on take-off as a result of engine failure.

Jinkins and Weiner filed separate lawsuits (later consolidated under one cause number) against all defendants alleging identical theories of negligence and strict products liability. Weiner and the defendants then entered into a settlement agreement which released the defendants and Jinkins from further liability to Weiner. Following the release, a non-suit order of dismissal with prejudice was entered between Weiner and the defendants, but it failed to mention the terms of the agreement. The defendants filed counterclaims against Jinkins seeking contribution and/or indemnity based on the settlement with Weiner. Jinkins responded by filing a motion for summary judgment which the trial court granted. After the trial court granted the summary judgment, it severed Jinkins' original suit from the defendants' counterclaim so that the summary judgment became final and appealable.

In support of the trial court's judgment, Jinkins contends that the defendants have no common-law or statutory right of contribution or indemnity. He further contends that the settlement agreement which released the defendants from liability to Weiner extinguished any right to contribution that they may have had against him. The defendants contend that they are entitled to both statutory and common-law contribution, that they were judgment debtors, and that their rights to contribution could not effectively be decided until a jury had passed on the causation issues.

I. COMMON-LAW INDEMNITY

The terms " 'contribution' and 'indemnity' have not always been exactly used or precisely distinguished. Indemnity is defined as the payment of all of plaintiff's damages by one tortfeasor to another tortfeasor who had paid it to the plaintiff." ¹ Unlike contribution, indemnity has depended on the evolution of the common-law concept of implied contract rather than on legislative prerogative. ² Courts have applied the concept of indemnification where they have found a breach, through an "imaginary lawsuit," of an implied contract. Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 565 (1949). Common-law indemnity has been abolished in suits between negligent joint tortfeasors, and also in actions between strictly liable joint tortfeasors. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 819 (Tex.1984); Cypress Creek Utility Service Co. v. Muller, 640 S.W.2d 860, 864 (Tex.1982); B & B Auto Supply, Sand Pit, & Trucking Co. v. Central Freight Lines, Inc., 603 S.W.2d 814, 816-17 (Tex.1980). It is questionable whether common-law indemnity is still available in a case which involves both negligence and strict liability, but even if there is a viable basis for relief, the pleadings and evidence must establish that one tortfeasor breached a duty to both the injured party and the co-tortfeasor. Austin, 216 S.W.2d at 565.

The record of pleadings by the defendants did not allege that Jinkins owed a duty to Weiner and to them, and they do not contend that they were denied the right to present such a claim in the summary judgment proceedings. Therefore, common-law indemnity is not an issue in this case.

II. STATUTORY CONTRIBUTION (ARTICLES 2212

AND 2212a)

Except where authorized by statute, contribution between joint tortfeasors in tort cases has not been allowed. The "no contribution" rule had its roots in the concept that all torts are intentional and that two persons must act in concert to bring about a circumstance of joint liability. Austin, 216 S.W.2d at 565. Two legislative enactments created exceptions to the "no contribution" rule. The first of the two statutory enactments, Tex.Rev.Civ.Stat.Ann. art. 2212 (Vernon 1971), enacted in 1917, provides in pertinent part that:

[a]ny person against whom, with one or more others, a judgment is rendered in any suit ... based on tort ... shall ... have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment.

Article 2212 established a cause of action for contribution, and recovery was based on a "pro rata" allocation of liability determined by the number of defendants ultimately found liable. Callihan Interests, Inc. v. Duffield, 385 S.W.2d 586, 587 (Tex.Civ.App.--Eastland 1964, writ ref'd). The enactment of art. 2212 evidenced the legislature's recognition that two people not acting in concert may cause a tort and in which event some relief, other than indemnity, should be available to the tortfeasor who is no more culpable than his co-tortfeasor. Under this statute a tortfeasor could, following a judgment against him, commence a suit for pro rata allocation of liability and seek recovery on that basis. This statute signaled the beginning of a state policy toward a more equitable allocation of liability between joint tortfeasors. See Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 452 (1941).

While art. 2212 created a cause of action for contribution it did not prescribe the procedure by which it was to be accomplished. Callihan, 385 S.W.2d at 587. The procedure was, and is, that the party seeking contribution must assert that a final judgment has been entered, that he has paid the injured party, and that he has secured a release which satisfies the liability of the alleged tortfeasor(s) against whom contribution is sought. Traveler's Insurance Co. v. United States, 283 F.Supp. 14 (S.D.Tex.1968). A dismissal with prejudice incorporating or referring to the terms of a settlement has been held sufficient to satisfy the statute. Callihan, 385 S.W.2d at 587. A judgment against a settling party under this statute, however, does not bind alleged tortfeasors not parties to the judgment, thereby necessitating a second cause of action between joint tortfeasors for contribution. Traveler's, 283 F.Supp. at 31.

Article 2212 has been held applicable in a case which involves issues of both negligence and strict liability. General Motors Corp. v. Simmons, 558 S.W.2d 855, 862 (Tex.1977); Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964). Pro rata allocation of loss among negligent plaintiffs and defendants and strictly liable defendants, as in Simmons, would impede development of a rational and fair system of loss allocation. Therefore, it does not apply when strict products liability, including uncrashworthiness and breach of warranty, is established. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427 (Tex.1984). Pro rata contribution recognized multiple tortfeasors, but did not provide a vehicle for equitable distribution of liability.

Another entry in the "no contribution" arena came in 1973 when the second statute affecting contribution and indemnity was enacted. Article 2212a provides in pertinent part:

Section 1. Contributory negligence shall not bar recovery in an action by any person or party or the legal representative of any person or party to recover damages for negligence resulting in death or injury to persons or property if such negligence is not greater than the negligence of the person or party or persons or parties against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person or party recovering.

....

[Section 2.] (b) In a case in which there is more than one defendant, and the claimant's negligence does not exceed the total negligence of all defendants, contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.

(c) Each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant, except that a defendant whose negligence is less than that of the claimant is liable to the claimant only for that portion of the judgment which represents the percentage of negligence attributable to him.

(d) If an alleged joint tortfeasor pays an amount to a claimant in settlement, but is never joined as a party defendant, or having been joined, is dismissed or nonsuited after settlement with the claimant (for which reason the existence and amount of his negligence are not submitted to the jury), each defendant is entitled to deduct from the amount for which he is liable to the claimant a percentage of the amount of the settlement based on the relationship the defendant's own negligence bears to the total negligence of all defendants.

Tex.Rev.Civ.Stat.Ann. art. 2212a, secs. 1, 2 (Vernon Supp.1985).

Article 2212a governs cases where no findings of defect have been obtained against a product supplier who was joined with a negligent defendant. Duncan, 665 S.W.2d at 427...