Fleming v. Threshermen's Mut. Ins. Co.

• Decision Date: 20 June 1986
• Docket Number: No. 84-1873,84-1873
• Citation: 131 Wis.2d 123,388 N.W.2d 908
• Parties: Shane FLEMING, Plaintiff-Respondent, v. THRESHERMEN'S MUTUAL INSURANCE COMPANY and Gregory Putzke, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 908

388 N.W.2d 908

131 Wis.2d 123

Shane FLEMING, Plaintiff-Respondent, v. THRESHERMEN'S MUTUAL INSURANCE COMPANY and Gregory Putzke Defendants-Appellants.

No. 84-1873.

Supreme Court of Wisconsin.

Argued Jan. 7, 1986.

Decided June 20, 1986.

Lila M. Hambleton, New Richmond (argued), for defendants-appellants; Doar, Drill & Skow, S.C., New Richmond, on briefs.

Joe Thrasher, Rice Lake (argued), for plaintiff-respondent; Weisel, Thrasher, Doyle & Pelish, Ltd., Rice Lake, on briefs.

CALLOW, Justice.

We accepted this case on certification from the court of appeals to decide whether a negligent tortfeasor has a right to indemnity or contribution from an intentional joint tortfeasor and to decide how a Pierringer release of an intentional joint tortfeasor affects the rights of a negligent tortfeasor. We conclude that a negligent tortfeasor has a right to indemnity from an intentional joint tortfeasor. We further conclude that a Pierringer release of an intentional joint tortfeasor operates to absolve a negligent tortfeasor of liability to a plaintiff because the negligent tortfeasor's right to indemnity from the intentional joint tortfeasor becomes a right to indemnity from the plaintiff.

This case arises from a confrontation in Rice Lake, Wisconsin, between two groups of young people in which the plaintiff, Shane Fleming, received injuries from a sawed-off shotgun blast. Fleming brought suit in the circuit court for Barron county, Judge Warren Winton, presiding, against two individuals: Darrell Seeger, who allegedly fired the sawed-off shotgun, and Gregory Putzke, who allegedly made the shotgun available. Fleming later amended the complaint to add Putzke's insurer, Threshermen's Mutual Insurance Company (Threshermen's).

Shortly before trial, Fleming settled his claim against Seeger for $20,000 and executed a Pierringer release in favor of Seeger and his insurer, releasing them from any further claims based on negligence or intentional wrongdoing. Because Putzke and Fleming could not reach agreement on a settlement, however, the case proceeded to trial. The court dismissed Seeger on the first day of the trial based on his settlement and release.

The jury found that Seeger intentionally shot Fleming and that Putzke was causally negligent in making the sawed-off shotgun available. The jury also found that Fleming's own negligence contributed to his injuries. The court, however, apparently believing that negligent conduct cannot be compared to intentional conduct, submitted to the jury a special verdict which asked the jury to compare only the relative fault of Fleming and Putzke, the two negligent parties. The jury apportioned 78 percent of the causal negligence to Putzke and 22 percent to Fleming. The jury awarded Fleming $20,000 for loss of future earning capacity and $20,000 for personal injury.

Putzke and Threshermen's made several postverdict motions. First, they moved for a judgment notwithstanding the verdict, arguing that the release Fleming executed in favor of Seeger precluded Fleming from collecting his damages from them. They also moved for judgment notwithstanding the verdict on the ground that the acts of Fleming and Seeger were superseding causes of Fleming's injuries. Alternatively, they moved for a new trial on the ground that Seeger should have been included in the special verdict question which asked the jury to compare the fault of Putzke and Fleming.

The court denied the defendants' motions after verdict and entered judgment against the defendants, jointly and severally, in the sum of $25,000 plus costs and disbursements. The limit of Threshermen's liability is $25,000 under its policy covering Putzke. The court also entered judgment against Gregory Putzke severally in the amount of $8,326.47. In total, the court awarded $33,326.47 in damages, an amount equal to Fleming's total damages less only 22 percent, the percentage of causal negligence attributed to Fleming. The court did not credit Putzke and Threshermen's with any portion of the damages which Seeger paid to Fleming under the Pierringer release.

Putzke and Threshermen's appealed to the court of appeals from the judgment entered by the circuit court. The court of appeals certified the appeal to this court, and we accepted certification.

This case presents two issues: First, whether a negligent tortfeasor has a right to indemnity or contribution from an intentional joint tortfeasor; and, second, whether a Pierringer release of an intentional joint tortfeasor affects the rights of a negligent tortfeasor. Because each of these issues is a question of law, we need not give deference to the lower courts' reasoning. Milwaukee Metropolitan Sewerage District v. DNR, 126 Wis.2d 63, 71, 375 N.W.2d 648 (1985).

Putzke's basic contention is that the judgment entered by the circuit court is inequitable. Had Seeger been guilty of acting negligently, rather than intentionally, the Pierringer release of Seeger would have operated to reduce Putzke's liability to Fleming by the percentage of causal negligence attributable to Seeger. Because Seeger acted intentionally, however, the circuit court did not ask the jury to assess a percentage of causal negligence against Seeger and ruled that the Pierringer release did not operate to reduce Putzke's liability to Fleming. Putzke asserts that it is illogical and inequitable to give a negligent tortfeasor fewer rights against an intentional joint tortfeasor than against a negligent joint tortfeasor. Therefore, while Putzke claims that principles of equity mandate that a negligent tortfeasor should have a right to indemnity from an intentional joint tortfeasor, he alternatively argues that, at a minimun, a negligent tortfeasor should have a right to contribution from an intentional joint tortfeasor.

Fleming essentially contends that Putzke has neither a right to indemnity nor a right to contribution from Seeger. According to Fleming, it is not inequitable for someone as negligent as Putzke to bear some liability for the consequences of his actions. Even granting that Putzke may have a right to indemnity from Seeger, however, Fleming argues that the issues Putzke raises on appeal are not properly before this court. First, Fleming asserts that the issues are moot because Putzke never cross-claimed for indemnity. Second, Fleming claims that Putzke lacks standing to challenge the judgment. Fleming apparently bases the latter argument on the premise that the court's dismissal of Seeger did not effect a dismissal of Putzke's alleged indemnity claim against Seeger because Putzke had not cross-claimed for indemnity prior to the settlement.

Neither of Fleming's standing arguments has any merit. The failure to cross-claim for indemnity is only relevant if such a claim must be raised in the action between a plaintiff and a...