Bolamperti v. Larco Manufacturing

• Decision Date: 29 January 1985
• Citation: 164 Cal.App.3d 249,210 Cal.Rptr. 155
• Court: California Court of Appeals Court of Appeals
• Parties: Violet BOLAMPERTI and John Bolamperti, Plaintiffs and Respondents, v. LARCO MANUFACTURING, et al., Defendants and Respondents. Anaheim Memorial Hospital, Movant and Appellant. G001104.

Page 155

210 Cal.Rptr. 155

164 Cal.App.3d 249

Violet BOLAMPERTI and John Bolamperti, Plaintiffs and Respondents, v. LARCO MANUFACTURING, et al., Defendants and Respondents Anaheim Memorial Hospital, Movant and Appellant.

G001104.

Court of Appeal, Fourth District, Division 3, California.

Jan. 29, 1985.

Cooksey, Coleman & Howard and Jon A. Hammerbeck, Tustin, for respondent Tom Reddin Sec.

No appearance for respondents Violet Bolamperti, John Bolamperti and Larco Mfg.

OPINION

TROTTER, Presiding Justice.

Appellant, Anaheim Memorial Hospital (Hospital) appeals from an order denying its motion for intervention.

This case involves the question whether a joint tortfeasor, who has entered into a good faith settlement pursuant to Code of Civil Procedure section 877.6, ¹ can thereafter pursue a cause of action for indemnity against a non-settling joint tortfeasor.

This case arose out of an accident that occurred on July 9, 1981. Plaintiff, Violet Bolamperti, allegedly sustained personal injury when she was struck by an electronically operated door on the premises of the Hospital.

After being served with the complaint, but before answering or otherwise pleading, the Hospital and another defendant, Golden West Radiology (Golden West), entered into a settlement with plaintiffs. The Hospital and Golden West brought a motion for a determination of good faith pursuant to section 877.6. ² On August 10, 1983 the trial court determined the settlement was in good faith, and dismissed the complaint as to defendants Hospital and Golden West. The trial court also ordered "that any further claims against these defendants for equitable comparative contribution or partial or comparative indemnity shall be barred."

On November 3, 1983 the Hospital moved for leave to intervene. In its motion the Hospital alleged it had contributed a total of $82,400 toward the settlement with plaintiffs and sought intervention to pursue a proposed declaratory relief action claiming a right to equitable indemnity against the other defendants. The trial court denied Hospital's motion to intervene.

On this appeal, Hospital contends the trial court erred in failing to grant its motion, claiming it retained a right to pursue its cause of action for indemnity regardless of its settlement with plaintiffs.

Several cases have investigated whether suit for indemnity may be brought against the settling tortfeasor with somewhat conflicting results. (Cf. Huizar v. Abex Corp. (1984) 156 Cal.App.3d 534, 203 Cal.Rptr. 47, and City of Sacramento v. Gemsch Investment Co. (1981) 115 Cal.App.3d 869, 171 Cal.Rptr. 764.) However, none have explored the rights of a settling tortfeasor under section 877.6 to continue his pursuit of an indemnity cause of action against a nonsettling joint tortfeasor. The problem arises because the language of subdivision (c) of section 877.6 provides: "A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault."

Respondent argues as follows: "To allow [Hospital] ... to remain in the case to pursue its claim for partial equitable indemnity will not be fair.... The [Hospital] is insulated from further liability under the ambit of 877.6. But to permit the Appellant to press its claim for indemnity, while insulated itself, and while it may be the most culpable defendant of any kind in the particular case, would certainly not promote equal distribution of a particular loss, and thereby certainly would not be fair to the remaining Defendants."

In Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492, 147 Cal.Rptr. 262 the court concluded "a settling concurrent tortfeasor may pursue his right of equitable partial indemnity against other concurrent tortfeasors." (Id., at p. 497, 147 Cal.Rptr. 262.) However, Sears, Roebuck & Co. was decided before the enactment of section 877.6. The question is whether section 877.6 was designed to change the rule enunciated in Sears, Roebuck & Co. and confirmed in American Bankers Ins. Co. v. Avco-Lycoming Division (1979) 97 Cal.App.3d 732, 159 Cal.Rptr. 70.

In Sears, Roebuck & Co. v. International Harvester Co., supra, 82 Cal.App.3d 492, 147 Cal.Rptr. 262, plaintiffs brought a suit for wrongful death against Sears on theories of product liability, breach of warranty and negligence alleging a defective tire was the cause of decedent's death in a truck accident. Sears filed a cross-complaint against International Harvester, the manufacturer of the defective tire, seeking indemnity and asserting theories of product liability and negligence contributing to the accident. The trial court granted a judgment on the pleadings, and Sears appealed. While the appeal was pending, Sears settled with plaintiffs. The appellate court reversed the judgment dismissing the cross-complaint. The court stated: "We analyze the Supreme Court decisions as creating a hierarchy of interests. First in the hierarchy is maximization of recovery to the injured party for the amount of his injury to the extent fault of others has contributed to it. (See Li v. Yellow Cab Co., supra 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226], eliminating the bar to recovery of contributory negligence, and American Motorcycle Assn. v. Superior Court, supra 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899], retaining the rule of joint liability of concurrent tortfeasors and holding named defendants liable for damage assessable against unnamed persons.) Second, is encouragement of settlement of the injured party's claim. (American Motorcycle Assn. v. Superior Court, supra 20 Cal.3d at pp. 603-604 [146 Cal.Rptr. 182, 578 P.2d 899].) Third is the equitable apportionment of liability among the tortfeasors. (Id., 20 Cal.3d at pp. 603-605 [146 Cal.Rptr. 182, 578 P.2d 899].) [p] The hierarchy of policies dictates the result which we reach in the case at bench. In no way does a rule permitting assertion by a settling defendant of his right of comparative indemnity impinge upon the maximization of recovery to the injured person. Permitting the recovery encourages settlement. If recovery were barred, a named defendant would be inhibited in effectuating a settlement where he believes that he has a right of indemnity against a solvent person or corporation, particularly where the potential indemnitor is not named as a defendant by the plaintiff. Allowing the settling defendant to assert his right of contribution against other concurrent tortfeasors effectuates the policy of equitable apportionment of the loss among them." (Id., at p. 496, 147 Cal.Rptr. 262; fn. omitted.)

Similarly in American Bankers Inc. Co. v. Avco-Lycoming Division, supra, 97 Cal.App.3d 732, 159 Cal.Rptr. 70 the court held that a settling tortfeasor may pursue his right of indemnity in a postsettlement complaint against a party named as a defendant in a prior suit, but against whom the settling tortfeasor did not file a cross-complaint. In the prior action, American Bankers Insurance Company had settled with the plaintiff for the full amount of its claim and obtained plaintiff's dismissal with prejudice as to all defendants. In so deciding, the court stated: "Every effort should be made to encourage the amicable and fair resolution of disputes. When needless and time-consuming litigation can be avoided, costs for all parties are reduced. If an insurer concludes it has the good faith obligation to settle a claim, it should not be required as part of its settlement package and in order to apportion its loss among those truly liable, to file a cross-complaint in the principal suit. After the case has been settled and the action dismissed, the insurer who has, through its efforts set a ceiling on damages, may still continue to negotiate among those liable for an equitable apportionment of damages. If a settlement cannot be reached, it should still have the opportunity to pursue its rights in court. Defendants are not prejudiced. No elements of res judicata or collateral estoppel are present, for defendants are entitled to a trial on the merits with the added benefit that in all likelihood the negotiated settlement imposing the lid on damages involves a sum which, in many cases, will be less than the open-ended and uncertain amount if each party were to blame the other at trial. If they did not answer the principal action, they may still assert their claim, if any, against the plaintiff. ( [Code Civ.Proc.] § 426.30, subd. (b)(2).)" (Id., at p. 736, 159 Cal.Rptr. 70.)

On the other hand, in Cardio Systems, Inc. v. Superior Court (1981) 122 Cal.App.3d 880, 176 Cal.Rptr. 254, the court concluded that a good faith settlement resulting in a dismissal as to one concurrent tortfeasor constituted a bar to another concurrent tortfeasor's cross-complaint for partial equitable indemnity. The court reached its result by interpreting section 877 which provides, "Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort--[p] (a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the...