George R. Hall, Inc. v. Superior Trucking Co., Civ. A. No. C79-797A.

• Decision Date: 26 February 1982
• Docket Number: Civ. A. No. C79-797A.
• Citation: 532 F. Supp. 985
• Parties: GEORGE R. HALL, INC. and Federal Insurance Company, Plaintiffs, v. SUPERIOR TRUCKING COMPANY, INC., Sims Crane Service, Inc. and Howard Baer, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

532 F. Supp. 985

GEORGE R. HALL, INC. and Federal Insurance Company, Plaintiffs, v. SUPERIOR TRUCKING COMPANY, INC., Sims Crane Service, Inc. and Howard Baer, Inc., Defendants.

Civ. A. No. C79-797A.

United States District Court, N. D. Georgia, Atlanta Division.

February 26, 1982.

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Howell Hollis, III, Freeman & Hawkins, Atlanta, Ga., for plaintiffs.

John D. Sours, Wasson, Sours & Harris, Atlanta, Ga., J. Robert Persons & Stephen E. O'Day, E. Clayton Scofield, III, Hurt, Richardson, Garner, Todd & Cadenhead, Robert E. Corry, Jr., Dennis, Corry, Webb, Carlock & Williams, Atlanta, Ga., for defendants.

ORDER

ROBERT H. HALL, District Judge.

Now before the court are several motions by each party, raising a total of eleven separate requests for post-trial relief. The essential facts underlying the trial of this case can be briefly stated.

I. Facts

George R. Hall, Inc. ("Hall"), hired Superior Trucking Co., Inc. ("Superior") to haul a large and complex newspaper printing press from New York to Louisiana. While in route to Louisiana, the Superior truck carrying the press was involved in a collision near Atlanta, with a truck owned by Howard Baer, Inc. ("Baer"). The collision necessitated a transfer of the press to a different Superior truck. Sims Crane Service, Inc. ("Sims") was called by Superior to lift the press from the damaged Superior truck to the relief truck. During this operation, the press fell and was damaged.

Hall and its insurer, Federal Insurance Company ("Federal"), sued Superior, Sims and Baer. Each defendant filed cross-claims against its co-defendants relating to the allocation of damages in the event liability was established. The defendants' various cross-claims dealt with matters of law, and might have been rendered moot, depending on whether, and how, liability would be assessed.

Because of the contingent nature of the cross-claims, it was agreed among counsel and the court that the cross-claims would be ruled on by the court, after trial, conditional on a finding of liability and subject to the evidence presented during trial.

On September 15, 1981, after a six day jury trial, a verdict was returned in favor of plaintiffs Hall and Federal, and against defendants Superior and Sims. The jury found that the negligence of both Superior and Sims was the cause of damage to the press, and awarded damages in the sum of $118,666.36, for which Superior and Sims were jointly and severally liable. Defendant Baer was found not to have been negligent.

On September 18, 1981, this court entered a partial final judgment against Superior and Sims, jointly and severally, in the amount of $118,666.36 plus interest and costs. In accord with Superior's bill of lading, Superior's liability was reduced to $112,500.

Now pending are the following motions: Superior's motions to reduce costs, and for judgment on its cross-claim for contribution against Sims; Sims' motions for judgment notwithstanding the verdict, a new trial, to reduce costs, and for judgment on its cross-claim asserting defenses of release and indemnity and denying Sims' motions for contribution; and Hall's motions to proceed with the assessment of interest, attorney's fees and punitive damages.

II. Defendants' Cross-Claims

Under Georgia law there exists a right of contribution among joint tortfeasors, each for their pro rata share of a judgment. Ga.Code Ann. § 105-2012 (Supp.1981); Ga. Code Ann. § 37-303 (1979). Based on these provisions, Superior has moved for entry of judgment against Sims in the amount of $56,250, half of Superior's liability.

Sims agrees there is a right to contribution among joint tortfeasors. However, Sims denies that Superior is entitled to contribution in this case. Sims insists that Superior signed a release of its claims against Sims. Sims further contends that Superior agreed to indemnify Sims for any sums which Sims may be required to pay the plaintiffs against satisfaction of the judgment.

Sims bases its claims of a release and indemnity agreement on paragraph 5 of a document referred to by the parties as a "work order". That paragraph states:

PARAGRAPH 5. COMPANY MAKES NO WARRANTIES TO CUSTOMERS, EXPRESS OR IMPLIED EXCEPT AS

SPECIFICALLY SET FORTH HEREIN. COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR TO ANYONE ELSE FOR ANY LOSS OR DAMAGE OF ANY KIND WHATSOEVER, WHETHER CAUSED BY THE EQUIPMENT OR BY THE OPERATION, MAINTENANCE OR REPAIR THEREOF, OR BY ANY FAILURE THEREOF OR INTERRUPTION OF SERVICE OR DELAY CAUSED THEREBY. IT IS AGREED THAT THE RENTAL RATE SET FORTH IN PARAGRAPH 7 HAS BEEN SET IN CONSIDERATION OF THE COMPANY NOT BEING LIABLE TO CUSTOMER EVEN THOUGH A LOSS, DAMAGE OR DELAY MAY BE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF COMPANY OR ITS SERVANTS, AGENTS OR EMPLOYEES.

Even though the work order was not signed until after Sims had supplied crane service, Sims maintains that the work order sets forth the terms of the agreement under which service was supplied and Superior was billed.

In response, Superior argues that Sims failed to raise the issue of release before or during trial and is barred from doing so now; that if this issue can be raised now the work order cannot be construed as an agreement to release or indemnify; that if the agreement can be so construed, the agreement must fail for want of consideration; and that even if the release and indemnification agreement is valid, it cannot be enforced because it was procured by fraud.¹

A. Release

1. Failure to raise affirmative defense of relief.

Rule 8(c) of the Federal Rules of Civil Procedure requires that "In pleading to a preceding pleading a party shall set forth affirmatively ... release ... and any other matter constituting an avoidance or affirmative defense." Generally, a failure to plead an affirmative defense results in a waiver of that defense and its exclusion from the case. Henry v. First National Bank of Clarksdale, 595 F.2d 291, 298 at n.1, (5th Cir. 1979); 5 Wright & Miller, Federal Practice and Procedure: Civil § 1278 (1969).

Superior maintains that at no time during this litigation until the filing of post-trial briefs, did Sims raise the affirmative defense of release. Sims made five pre-trial filings relevant to the question of its waiver of affirmative defenses: its answer to plaintiffs' complaint; its cross-claims; its answer to Superior's cross-claims; the pre-trial order; and its trial brief. An examination of these filings reveals no claim of release.

Sims relies on its answer to Superior's cross-claim. But this merely states "that Defendant Superior, at the outset of the undertaking, contractually disclaimed and absolved Defendant Sims ... from any liability." This coincides with the theory set forth in Sims' own cross-claim that "... at the time of occurrence of the damage ... Sims was party to a written agreement ... with Superior."

The notice this pleading provides is that Sims would argue a contract for provision of crane services was signed or verbally consented to prior to the damage of the press, and that one term of this contract was a covenant not to sue. Post-accident release, which is a separate and distinct theory, see Cash v. Street & Trail Inc., 136 Ga.App. 462, 221 S.E.2d 640 (1975), is no where mentioned or hinted at. By contrast, other issues raised by Sims are brought forth clearly and forcefully. For example, Sims' contention that paragraph 5 serves as an indemnification agreement is specifically alleged.

Furthermore, the issue of release is not discussed in the court's pre-trial order which purports to be an all-inclusive statement of the issues present for consideration, and which was signed by Sims' attorneys. Sims' trial brief is also devoid of any arguments pertaining to release.

Sims asserts that even if its pleadings did not raise the defense of release, the pleadings should be treated as if the defense were raised in its answer, pursuant to Rule 15(b), Fed.R.Civ.P. Under Rule 15(b), if issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised by the pleadings.

Sims argues that there was express consent to try the issue of release in the agreement to reserve cross-claims for post-trial decision, and implied consent to try the issue in the uncontested introduction of the work order into evidence.

The burden of proof on a Rule 15 motion to amend the pleadings rests with the movant. Sims has failed to indicate any portions of the trial transcript which would support its claim that release was expressly raised at trial.²

Additionally, while under Rule 15, a party's failure at trial to object to evidence relevant to an unpleaded theory gives implied consent to amendment of the pleadings; the introduction of evidence relevant to an issue already in the case may not be used to show consent to a new issue, absent a clear indication that the party who introduced the evidence was attempting to raise a new issue. International Harvester Credit Corp. v. East Coast Truck and R. V. Sales, Inc., 547 F.2d 888, 890 (5th Cir. 1977), Bettes v. Stonewall Insurance Co., 480 F.2d 92 (5th Cir. 1973); 6 Wright & Miller, Federal Practice and Procedure: Civil § 1493 (1971).

The work order and the circumstances of its execution were relevant to Sims' claims of borrowed servant, indemnity and contractual disclaimer. Absent some showing by Sims indicating its intention to raise release as a defense, Superior's failure to object to introduction of the work order cannot be used to imply consent. See International Harvester, 547 F.2d at 890.

As a final point, it has been suggested that since the claim of release relates to matters of law, there is no prejudice to Superior if the question of release is decided on the merits. Professor Moore states that the question of prejudice to the defendant plays no role under the first part of Rule 15(b). He writes that the...