Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc.

• Decision Date: 18 May 1981
• Docket Number: SIGHT-SEEING
• Citation: 174 Cal.Rptr. 527,120 Cal.App.3d 622
• Court: California Court of Appeals Court of Appeals
• Parties: COLUMBUS LINE, INC. and Royal Viking Line, Inc., Cross-Complainants and Appellants, v. GRAY LINECOMPANIES ASSOCIATED, INC., etc., Cross-Defendant and Respondent. Civ. 60471.

Page 527

174 Cal.Rptr. 527

120 Cal.App.3d 622

COLUMBUS LINE, INC. and Royal Viking Line, Inc., Cross-Complainants and Appellants, v. GRAY LINE SIGHT-SEEING COMPANIES ASSOCIATED, INC., etc., Cross-Defendant and Respondent.

Civ. 60471.

Court of Appeal, Second District, Division 1, California.

May 18, 1981.

Hearing Denied July 15, 1981.

Overton, Lyman & Prince, Jon P. Kardassakis and George M. Lindahl, Los Angeles, for cross-complainants and appellants.

Cruikshank, Antin & Grebow and Michael A. Vanic, Beverly Hills, for cross-defendant and respondent.

LILLIE, Associate Justice.

Columbus Line, Inc. and Royal Viking Line, Inc. appeal from summary judgment entered against them and in favor of Gray Line Sight-Seeing Companies Associated, Inc. on their cross-complaint for equitable indemnity in a personal injury action.

That action rose out of the following circumstances. Royal Viking is the owner of the M. S. Viking Sea, a passenger vessel. Columbus and Royal Viking entered into a written agreement whereby Columbus agreed to create, manage and operate shore excursions for Royal viking's gulf stream cruise passengers. On October 30, 1974, Fred Lawrence and Ethel Lawrence, passengers on the M. S. Viking Sea, purchased from Columbus tickets for a sight-seeing tour in Guatemala and took the tour on that date. The tour was arranged by Columbus pursuant to its agreement with Guatemala Sightseeing (a Guatemalan corporation), which provided the bus transportation. During the tour the Lawrences sustained personal injuries when the bus in which they were riding collided with a pickup truck. At the time of the accident Guatemala Sightseeing was an associate member of Gray Line, a trade association for the sight-seeing and tour service industry.

The Lawrences filed a complaint for personal injuries against Columbus, Royal Viking and Guatemala Sightseeing, ¹ alleging that each of the defendants was the agent of the others and that the negligence of each combined with that of the others to cause the collision and plaintiffs' resulting injuries. Gray Line subsequently was served as a "doe" defendant and answered the complaint. Columbus and Royal Viking (hereinafter collectively referred to as "Columbus") filed a cross-complaint for indemnity against Gray Line who moved for summary judgment. The motion was placed off calendar to allow Columbus to amend the cross-complaint to seek equitable indemnity under American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 148 Cal.Rptr. 182, 578 P.2d 899.

The amended cross-complaint alleged: Gray Line represented that Guatemala Sightseeing ² was an approved member and an authorized representative of Gray Line and, as such, that it met the high standards of Gray Line as to the quality of its operations; in retaining the services of Guatemala Sightseeing to conduct the tour on which plaintiffs were injured, Columbus relied on the fact that such tour was an approved Gray Line operation; a principal-agency relationship existed between Gray Line and Guatemala Sightseeing, making Gray Line liable as a principal for any negligence of its agent Guatemala Sightseeing; plaintiffs' injuries, if any, were caused or contributed to by Gray Line; under American Motorcycle Assn. v. Superior Court, Columbus is entitled to have Gray Line's negligence determined in this action and is entitled to equitable indemnity from Gray Line.

Gray Line moved for summary judgment on the complaint. The thrust of the motion was that Gray Line is not liable to plaintiffs because: (1) it was not negligent toward plaintiffs in any manner; and (2) it may not be held vicariously liable for the acts of any of its codefendants in connection with the injuries allegedly sustained by plaintiffs. Plaintiffs opposed the motion, arguing that they had produced evidence which raised a triable issue of fact on the question whether Guatemala Sightseeing was the agent (either actual or ostensible) of Gray Line. The motion was granted and summary judgment was entered in favor of Gray Line and against plaintiffs. That judgment stated in part: "... defendant (Gray Line) has shown by admissible evidence and reasonable inferences from that evidence that the action has no merit and that there is no triable issue of material fact and defendant ... is entitled to summary judgment against plaintiffs Fred Lawrence and Ethel Lawrence as a matter of law. Specifically, it appears and the Court so finds that defendant ... was not negligent, either by omission or commission, towards plaintiffs ... in connection with the acts and injuries alleged in said plaintiffs' complaint and that no agency or employment relationship exists between defendant (Gray Line) and defendant Guatemala Sightseeing or any other defendant herein such that (Gray Line) may be held vicariously liable to said plaintiffs for any negligence, either by omission or commission, of defendant Guatemala Sightseeing or any other defendant herein in connection with the acts and injuries alleged in said plaintiffs' complaint." ³

After the granting of its motion for summary judgment on the complaint, Gray Line moved for summary judgment in its favor on the amended cross-complaint for equitable indemnity on the ground that inasmuch as the court determined that Gray Line was not negligent toward plaintiffs nor vicariously liable for the negligence of any codefendant, it was not a concurrent tortfeasor responsible in any manner for plaintiffs' alleged injuries and therefore could not be ordered to indemnify Columbus on a comparative fault basis under American Motorcycle Assn. v. Superior Court. In opposition to the motion Columbus argued that the doctrine of res judicata does not preclude litigation of its cross-complaint for indemnity and that there are triable issues of material fact regarding the alleged principal-agency relationship between Gray Line and Guatemala Sightseeing. The motion was granted, the court determining that there was no triable issue of material fact and that Gray Line was entitled to judgment as a matter of law. Columbus appeals from the summary judgment entered in favor of Gray Line, and against Columbus, on the cross-complaint for equitable indemnity. ⁴

Prior to American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, the doctrine of equitable indemnity permitted one of two tortfeasors to shift the entire loss to the other when, without active fault on the claimant's part, he was compelled by reason of some legal obligation to pay damages occasioned by the immediate fault of the other. (Sanders v. Atchison, Topeka & Santa Fe Ry. Co. (1977) 65 Cal.App.3d 630, 637, 135 Cal.Rptr. 555; Aerojet General Corp. v. D. Zelinsky & Sons (1967) 249 Cal.App.2d 604, 607, 57 Cal.Rptr. 701.) In American Motorcycle, the Supreme Court concluded that "the current equitable indemnity rule should be modified to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis." (20 Cal.3d at p. 598, 146 Cal.Rptr. 182, 578 P.2d 899.) Thus, the case did not establish a new cause of action separate and distinct from the traditional equitable indemnity action, but simply modified the all-or-nothing aspect of the pre- American Motorcycle doctrine to permit partial indemnification in appropriate cases. (People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 756-757, 163 Cal.Rptr. 585, 608 P.2d 673.) Inasmuch as that doctrine presupposes that each of two persons is made responsible by law to an injured party (New Hampshire Ins. Co. v. Sauer (1978) 83 Cal.App.3d 454, 459, 147 Cal.Rptr. 879), Gray Lines' obligation to indemnify Columbus depends upon its having been at least partially responsible for plaintiffs' injuries. The summary judgment in favor of Gray Line and against plaintiffs determined that no such responsibility existed.

Columbus contends that litigation of its cross-complaint for equitable indemnity is not precluded by principles of res judicata and collateral estoppel. The doctrine of res judicata provides that a final judgment on the merits bars the parties or those in privity with them from litigating the same cause of action in a subsequent proceeding and collaterally estops parties or those in privity with them from litigating in a subsequent proceeding on a different cause of action any issue actually litigated and determined in the former proceeding. (In re Russell (1974) 12 Cal.3d 229, 233, 115 Cal.Rptr. 511, 524 P.2d 1295; Martin v. Martin (1970) 2 Cal.3d 752, 758, 87 Cal.Rptr. 526, 470 P.2d 622; Merry v. Coast Community College Dist. (1979) 97 Cal.App.3d 214, 221, 158 Cal.Rptr. 603.) The application of the doctrine in a given case depends upon an affirmative answer to three questions: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (Levy v. Cohen (1977) 19 Cal.3d 165, 171, 137 Cal.Rptr. 162, 561 P.2d 252; Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439.)

The first question must be answered in the affirmative. The summary judgment on the complaint determined that Gray Line was not negligent toward plaintiffs and that no agency relationship existed between Gray Line and Guatemala Sightseeing or any other defendant such that Gray Line could be held vicariously liable to plaintiffs for any negligence of Guatemala Sightseeing or any other defendant. ⁵ The issues thus determined by that judgment are precisely those raised by Columbus' cross-complaint, which seeks indemnity from Gray Line on the ground that it was negligent toward plaintiffs or responsible for the negligence of its alleged agent Guatemala Sightseeing. ⁶

The second question likewise is answered...