Cochran v. Gehrke Const., No. C 01-0161-MWB.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtBennett
PartiesShawn COCHRAN, Plaintiff, v. GEHRKE CONSTRUCTION, National Tank Corporation, and Terracon Consultants, Inc., Defendants, and National Tank Corporation, Third-Party Plaintiff, v. Eagle Grove Crane Service, INC., Third-Party Defendant.
Docket NumberNo. C 01-0161-MWB.
Decision Date20 November 2002
235 F.Supp.2d 991
Shawn COCHRAN, Plaintiff,
v.
GEHRKE CONSTRUCTION, National Tank Corporation, and Terracon Consultants, Inc., Defendants, and
National Tank Corporation, Third-Party Plaintiff,
v.
Eagle Grove Crane Service, INC., Third-Party Defendant.
No. C 01-0161-MWB.
United States District Court, N.D. Iowa, Cedar Rapids Division.
November 20, 2002.

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COPYRIGHT MATERIAL OMITTED

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Marc S. Harding, Marc S. Harding PC, Des Moines, IA, for Plaintiff.

Donald J. Pavelka, Jr., Thomas M. Braddy, Locher, Cellilli, Pavelka & Dostal, LLC, Omaha, NE, Megan M. Antenucci, Marc Thomas Beltrame, Whitfield & Eddy, PLC, Des Moines, IA, John A. Templer, Jr., Pingel & Templer, PC, West Des Moines, IA, Megan M. Antenucci, Marc Thomas Beltrame, Whitfield & Eddy, PLC, Des Moines, IA, Kent Alan Gummert, Gaudineer & Comito, LLP, West Des Moines, IA, for Defendants.

MEMORANDUM OPINION AND ORDER REGARDING MOTIONS TO DISMISS OR PARTIALLY DISMISS NATIONAL TANK CORPORATION'S CLAIMS FOR INDEMNITY AND CONTRIBUTION

BENNETT, Chief Judge.


 TABLE OF CONTENTS
                 I. INTRODUCTION..................................................................994
                 A. Factual Background........................................................994
                 B. Procedural Background.....................................................994
                 II. LEGAL ANALYSIS................................................................995
                 A. Standards For Motions To Dismiss..........................................995
                 B. Eagle Grove's Motion To Dismiss The Third-Party Complaint.................996
                 1. National Tank's third-party claims....................................996
                 2. Arguments of the parties..............................................997
                 3. Contribution versus indemnity.........................................998
                 4. National Tank's contribution claim....................................999
                 5. National Tank's indemnity claim......................................1000
                 a. Indemnity claims against the plaintiff's employer under Iowa
                 law..............................................................1000
                 i. Eighth Circuit precedent...................................1000
                 ii. Iowa precedent.............................................1001
                 b. Sufficiency of National Tank's indemnity claim...................1003
                 i. The duties pleaded.........................................1003
                 ii. Other implied duties.......................................1004
                 iii. Other common-law theories of indemnity.....................1005
                 C. Gehrke's Motion For Partial Dismissal Of The Cross-Claim.................1006
                 1. National Tank's Cross-Claim..........................................1006
                 2. Arguments of the parties.............................................1006
                 3. National Tank's Indemnity claim against Gehrke.......................1007
                III. CONCLUSION...................................................................1008
                

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In a lawsuit following an accident during a construction project involving general, sub-, and sub-subcontractors, it was almost inevitable that the issues of indemnity and contribution would arise. Thus, it is not surprising that one of the subcontractors involved in this case has, indeed, brought such claims against the general contractor and its own subcontractor, nor is it surprising that the general contractor and sub-subcontractor — who was the plaintiff's actual employer — have both moved to dismiss or partially dismiss those claims. In consequence, the court must probe Iowa's sometimes arcane rules of indemnity and contribution as they are influenced by the State's comparative fault and workers' compensation laws.

I. INTRODUCTION
A. Factual Background

The factual background to the motions presently before the court is perhaps deceptively simple. The claims among the parties arise from a construction accident on July 20, 2000, during the erection and refurbishing of a water tower in New Providence, Iowa. The City of New Providence had hired Gehrke Construction as the general contractor for the project, and Gehrke, in turn, subcontracted with National Tank and Terracon to perform various parts of the contract. Specifically, Gehrke hired National Tank to perform some of the construction work and hired Terracon to provide soil compaction testing services. National Tank, in turn, hired Eagle Grove Crane Service to set up and operate the crane used in connection with the water tower project. Shawn Cochran was, in turn, an employee of Eagle Grove.

For the sake of simplicity, the court will rely for now on Shawn Cochran's allegations of what happened on July 20, 2000. Apparently while the water tank was being placed on the tower, Cochran alleges that "[t]he ground beneath the crane slowly sank, causing instability that [Cochran] was powerless to control," and "[t]he crane toppled, dropping [Cochran] approximately 140 feet to the ground below," with the result that Cochran was "critically injured." Plaintiff's Complaint at ¶¶ 10-12. This litigation followed.

B. Procedural Background

On November 23, 2001, Shawn Cochran initiated this action by filing a Complaint against defendants Gehrke, National Tank, and Terracon, in which Cochran alleged that the negligence of the defendants caused his injuries. Defendant Terracon answered the Complaint on December 20, 2001, defendant Gehrke answered on February 1, 2002, and defendant National Tank answered on February 4, 2002. Cochran's Complaint, however, is not the subject of the motions to dismiss presently before the court.

Instead, the motions to dismiss involve cross-claims and third-party claims. On May 15, 2002, defendant Gehrke sought leave to amend its answer to assert a cross-claim against defendant National Tank for indemnification for damages to Cochran pursuant to a contract between National Tank and Gehrke. Similarly, on May 17, 2002, defendant National Tank sought leave to file a cross-claim against Gehrke and a third-party complaint against third-party defendant Eagle Grove for indemnity and/or contribution for damages and injuries claimed by Cochran. On May 22, 2002, a magistrate judge of this court granted Gehrke's motion to amend its answer to include its cross-claim against National Tank, and on June 10, 2002, the magistrate judge granted National Tank's motion to file its cross-claim against Gehrke and its third-party complaint against Eagle Grove. National Tank answered Gehrke's cross-claim on June 12, 2002.

However, on August 7, 2002, instead of answering National Tank's third-party

Page 995

complaint, Eagle Grove moved to dismiss it, contending that National Tank's contribution or indemnity claim is barred by the exclusive remedy provision of Iowa's Workers' Compensation Act, and thus fails to state a claim upon which relief can be granted. Similarly, on August 15, 2002, Gehrke filed a partial motion to dismiss National Tank's cross-claim against it, arguing that the indemnity portion of the cross-claim fails to state a claim upon which relief can be granted, because the common-law theory of indemnity upon which National Tank relies has been abandoned by Iowa courts as incompatible with Iowa's Comparative Fault Act. National Tank resisted Eagle Grove's motion to dismiss its third-party complaint on August 26, 2002, and Eagle Grove filed a reply on September 6, 2002. After an extension of time to do so, National Tank resisted Gehrke's partial motion to dismiss its cross-claim on October 1, 2002.

Unfortunately, during much of the pendency of the present motions to dismiss, the case was not assigned to a presiding judge, owing to a judicial vacancy upon the elevation of Judge Michael Melloy to the Eighth Circuit Court of Appeals. However, following a status hearing before a magistrate judge on October 25, 2002, the undersigned agreed to preside over this case, as well as another case consolidated with this one for the purposes of discovery. Therefore, this case was assigned to the undersigned on October 28, 2002. As these matters are now ripe — indeed, overripe — for disposition, the court turns to the legal analysis of Gehrke's and Eagle Grove's motions to dismiss or partially dismiss National Tank's indemnity and contribution claims.

II. LEGAL ANALYSIS

A. Standards For Motions To Dismiss

The issue on a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of his, her, or its claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989). In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged by the complaining party, here National Tank, are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir.1999) ("On a motion to dismiss, we review the district court's decision de novo, accepting all the factual allegations of the complaint as true and construing them in the light most favorable to [the non-movant]."); St. Croix Waterway Ass'n v. Meyer, 178 F.3d 515, 519 (8th Cir.1999) ("We take the well-pleaded allegations in the complaint as true and view the complaint, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff."); Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir.1999) (same); Midwestern Machinery, Inc. v. Northwest Airlines, 167 F.3d 439, 441 (8th Cir.1999) (same); Wisdom v. First Midwest Bank, 167 F.3d 402, 405 (8th Cir.1999) (same); Duffy v. Landberg, 133 F.3d 1120, 1122 (8th Cir.) (same), cert. denied, 525 U.S. 821, 119 S.Ct. 62, 142 L.Ed.2d 49 (1998); Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir.1997) (same); WMX Techs., Inc. v. Gasconade...

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4 practice notes
  • Cochran v. Gehrke, Inc., No. C 01-161-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • November 24, 2003
    ...indemnity and contribution by a sub-contractor against the general contractor and a sub-subcontractor. See Cochran v. Gehrke Constr., 235 F.Supp.2d 991 (N.D.Iowa 2002). Now before the court is the general contractor's motion for partial summary judgment on its own indemnity cross-claim agai......
  • Subcliff v. Brandt Engineered Products, Ltd., No. 3:05-cv-00001-RAW.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • October 3, 2006
    ...party against an injured party's employer that is recognized by Iowa law is the `independent duty' basis." Cochran v. Gehrke Const., 235 F.Supp.2d 991, 1005 (N.D.Iowa 2002)(emphasis This Court agrees with the Cochran court that section 90 will not support a third party's indemnity claim aga......
  • Cochran v. Gehrke, Inc., No. C 01-161-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 3, 2004
    ...See, e.g., Cochran v. Page 1047 Gehrke, Inc., 293 F.Supp.2d 986, 988-90 (N.D.Iowa 2003) (Cochran II); Cochran v. Gehrke Constr., Inc., 235 F.Supp.2d 991, 994 (N.D.Iowa 2002) (Cochran I); Wegener v. Gehrke, Inc., slip op. at 2, No. C 02-0108-MWB (N.D.Iowa Jan. 10, 2003) (Memorandum Opinion a......
  • Wells Dairy, Inc. v. Air, No. 06-1018.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 2009
    ...to implied contractual indemnity. Merryman v. Iowa Beef Processors, Inc., 978 F.2d 443, 445 (8th Cir.1992); Cochran v. Gehrke Constr., 235 F.Supp.2d 991, 1003-04 (N.D.Iowa 2002); Roger W. Stone & Jeffrey A. Stone, Indemnity in Iowa Construction Law, 54 Drake L.Rev. 125, 147 (2005) (noting o......
4 cases
  • Cochran v. Gehrke, Inc., No. C 01-161-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • November 24, 2003
    ...indemnity and contribution by a sub-contractor against the general contractor and a sub-subcontractor. See Cochran v. Gehrke Constr., 235 F.Supp.2d 991 (N.D.Iowa 2002). Now before the court is the general contractor's motion for partial summary judgment on its own indemnity cross-claim agai......
  • Subcliff v. Brandt Engineered Products, Ltd., No. 3:05-cv-00001-RAW.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • October 3, 2006
    ...party against an injured party's employer that is recognized by Iowa law is the `independent duty' basis." Cochran v. Gehrke Const., 235 F.Supp.2d 991, 1005 (N.D.Iowa 2002)(emphasis This Court agrees with the Cochran court that section 90 will not support a third party's indemnity claim aga......
  • Cochran v. Gehrke, Inc., No. C 01-161-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 3, 2004
    ...See, e.g., Cochran v. Page 1047 Gehrke, Inc., 293 F.Supp.2d 986, 988-90 (N.D.Iowa 2003) (Cochran II); Cochran v. Gehrke Constr., Inc., 235 F.Supp.2d 991, 994 (N.D.Iowa 2002) (Cochran I); Wegener v. Gehrke, Inc., slip op. at 2, No. C 02-0108-MWB (N.D.Iowa Jan. 10, 2003) (Memorandum Opinion a......
  • Wells Dairy, Inc. v. Air, No. 06-1018.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 2009
    ...to implied contractual indemnity. Merryman v. Iowa Beef Processors, Inc., 978 F.2d 443, 445 (8th Cir.1992); Cochran v. Gehrke Constr., 235 F.Supp.2d 991, 1003-04 (N.D.Iowa 2002); Roger W. Stone & Jeffrey A. Stone, Indemnity in Iowa Construction Law, 54 Drake L.Rev. 125, 147 (2005) (noting o......

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