Greer v. Intercole Automation, Inc., Civ. A. No. 81-JM-1801.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtRichard L. Kalamaya, Carl F. Manthei, William J. McCarren, Longmont, Colo., for plaintiffs
Citation553 F. Supp. 275
Docket NumberCiv. A. No. 81-JM-1801.
Decision Date17 December 1982
PartiesMarvin J. GREER and Peggy J. Greer, Plaintiffs, v. INTERCOLE AUTOMATION, INC., a California corporation, d/b/a Stewart-Bolling & Company, Inc., in Cleveland, Ohio, Defendant and Third-Party Plaintiff, v. The GATES RUBBER COMPANY, a Colorado corporation, Third-Party Defendant.

553 F. Supp. 275

Marvin J. GREER and Peggy J. Greer, Plaintiffs,
v.
INTERCOLE AUTOMATION, INC., a California corporation, d/b/a Stewart-Bolling & Company, Inc., in Cleveland, Ohio, Defendant and Third-Party Plaintiff,
v.
The GATES RUBBER COMPANY, a Colorado corporation, Third-Party Defendant.

Civ. A. No. 81-JM-1801.

United States District Court, D. Colorado.

December 17, 1982.


Richard L. Kalamaya, Carl F. Manthei, William J. McCarren, Longmont, Colo., for plaintiffs.

Eugene O. Daniels, Denver, Colo., for Ford defendant.

Richard H. Glasman, Denver, Colo., for third-party defendant.

MEMORANDUM ORDER

JOHN P. MOORE, District Judge.

THIS MATTER arises upon the Plaintiffs' Motion to Strike Third Party Claim and the Defendant's Motion for Summary Judgment. For reasons which follow, I

553 F. Supp. 276
conclude that the claim should be stricken. Since this result renders consideration of the summary judgment motion unnecessary, it will be denied as moot

The complaint in this diversity action alleges that Plaintiff Marvin Greer was injured by a defective press machine manufactured and sold by Defendant Intercole Automation, Inc., (Intercole) to Greer's employer, the Gates Rubber Company (Gates). Greer seeks damages based upon theories of strict liability, misrepresentation, and negligence.1 Intercole has answered and asserted a third-party claim against Gates, alleging that Gates participated in the design of the press and subsequently altered its operation so as to render it hazardous to Mr. Greer. Based upon these allegations, Intercole contends that the injuries in question were caused by Gates, and, therefore, it is entitled to contribution from Gates should the Greers recover against it. Colo.Rev. Stat. § 13-50.5-101, et seq., (1973) (1980 Supp.). Plaintiffs have moved to strike, contending that contribution is unavailable in this instance due to Gates' immunity as an employer under the Colorado Workmen's Compensation Act (WCA). Colo.Rev.Stat. § 8-40-101, et seq., (1973) (as supplemented). I agree.

I

Section 102(1) of the Colorado Uniform Contribution Among Tortfeasors Act (UCATA) establishes a right of contribution "where two or more persons become jointly or severally liable in tort for the same injury ...." Colo.Rev.Stat. § 13-50.5-102(1) (1973) (1982 Supp.). The Colorado Workmen's Compensation Act provides:

An Employer who has complied with the provisions of articles 40 to 54 of this title ... shall not be subject to ... any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions of law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.

Colo.Rev.Stat. § 8-42-102 (1973) (1980 Supp.). There appears to be no question but that Gates was in compliance with the Act at the time Greer was injured, nor is it doubtful that this injury arose out of and was suffered in the course of Greer's employment. Colo.Rev.Stat. § 8-52-102 (1973) (1980 Supp.). It follows that Gates is immune from common law liability for this injury2 and, consequently, cannot become "jointly or severally liable in tort" so as to trigger a right of contribution in Intercole.

Intercole resists this logic on statutory grounds. It is asserted initially that § 102 of the Workmen's Compensation Act does not evince an intent to bind strangers to the employment relation. Assuming this to be correct, I fail to see how Intercole's contribution claim is much aided since Gates is, in all events, immune from suit in tort by Plaintiffs, and, therefore, the requisite of joint or "common" liability remains unsatisfied. Moreover, § 102 flatly insulates the complying employer from "any other liability for the death of or personal injury to any employee," thereby abolishing "all causes of action ... for and on account of an employee's injury or death and accruing to any person ...." (Emphasis added.) This and similar language has been interpreted by the Colorado courts to include third-party actions. Holly Sugar Corp. v. Union Supply Co., 194 Colo. 316, 572 P.2d 148 (1977) (action for indemnity); Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969) (action for indemnity); see, also,

553 F. Supp. 277
Ward v. Denver & R.G.W.R. & Co., 119 F.Supp. 112 (D.Colo.1954); Hammond v. Kolberg Mfg. Co., 542 F.Supp. 662 (D.Colo. 1982) (action for indemnity and contribution)

Undaunted, Intercole urges that the extension of immunity embodied in these authorities is in fundamental opposition to the goal of equitable apportionment underlying the UCATA. I find no such contradiction.

Legislative intent is to be judged in the first instance according to the plain and ordinary meaning of the language employed. People ex rel. Marks v. District Court, 161 Colo. 14, 420 P.2d 236, 241 (1966); Jones v. People, 155 Colo. 148, 393 P.2d 366, 369 (1964). Where clear and unambiguous, statutory language must be applied as written; and forced, subtle, or strained interpretations are to be avoided. Harding v. Industrial Comm., 183 Colo. 52, 515 P.2d 95 (1973). The UCATA is clear and unequivocal in its requirement that joint or common liability in tort exist as a precondition to the right of contribution. Colo.Rev.Stat. § 13-50.5-102 (1973) (1982 Supp.). At no point does it attempt to add to or redefine the concept of liability in tort. Thus, the UCATA can hardly be viewed as signaling an intent to override preexisting common law or statutory immunities.3 Intercole's argument to the contrary plainly rests upon a strained and artificial reading. Accordingly, I find that dismissal of Intercole's claim for contribution...

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5 practice notes
  • Borroel v. Lakeshore, Inc., No. 84-K-1707.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 24, 1985
    ...with the Workmen's Compensation Act cannot be subject to third party actions for contribution. Greer v. Intercole Automation, Inc., 553 F.Supp. 275 (D.Colo.1982); Hammond v. Kolberg Manufacturing Corp., 542 F.Supp. 662 (D.Colo.1982). The district court's rationale was that an employer who c......
  • Thompson v. Stearns Chemical Corp., No. 83-918
    • United States
    • United States State Supreme Court of Iowa
    • February 15, 1984
    ...a third party's right to contribution from the employer for the employee's injury."); Greer v. Intercole Automation, Inc., 553 F.Supp. 275, 276 (D.C.Colo.1982) (even if Workmen's Compensation Act did not show an intent to bind strangers to the employment relationship, "the requisi......
  • Tex-Ark Joist Co. v. Derr and Gruenewald Const. Co., TEX-ARK
    • United States
    • Colorado Court of Appeals of Colorado
    • March 27, 1986
    ...impossible for an employer to satisfy the prerequisite of joint or several liability in tort. See Greer v. Intercole Automation, Inc., 553 F.Supp. 275 (D.Colo.1982). The result is that these two statutes are mutually Tex-Ark raises this issue with regard to indemnity as well as contribution......
  • Watters v. Pelican Intern., Inc., Civ. A. No. 88-F-1305.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • February 17, 1989
    ...& Grunewald Construction Co., 719 P.2d 384, 385 (Colo.App.1986), aff'd, 749 P.2d 431 (Colo.1988); Greer v. Intercole Automation Co., 553 F.Supp. 275, 276 (D.Colo.1982). In our view and the view of tort reform commentators, the Proportionate Fault Statute establishes a pure several liabi......
  • Request a trial to view additional results
5 cases
  • Borroel v. Lakeshore, Inc., No. 84-K-1707.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 24, 1985
    ...with the Workmen's Compensation Act cannot be subject to third party actions for contribution. Greer v. Intercole Automation, Inc., 553 F.Supp. 275 (D.Colo.1982); Hammond v. Kolberg Manufacturing Corp., 542 F.Supp. 662 (D.Colo.1982). The district court's rationale was that an employer who c......
  • Thompson v. Stearns Chemical Corp., No. 83-918
    • United States
    • United States State Supreme Court of Iowa
    • February 15, 1984
    ...a third party's right to contribution from the employer for the employee's injury."); Greer v. Intercole Automation, Inc., 553 F.Supp. 275, 276 (D.C.Colo.1982) (even if Workmen's Compensation Act did not show an intent to bind strangers to the employment relationship, "the requisi......
  • Tex-Ark Joist Co. v. Derr and Gruenewald Const. Co., TEX-ARK
    • United States
    • Colorado Court of Appeals of Colorado
    • March 27, 1986
    ...impossible for an employer to satisfy the prerequisite of joint or several liability in tort. See Greer v. Intercole Automation, Inc., 553 F.Supp. 275 (D.Colo.1982). The result is that these two statutes are mutually Tex-Ark raises this issue with regard to indemnity as well as contribution......
  • Watters v. Pelican Intern., Inc., Civ. A. No. 88-F-1305.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • February 17, 1989
    ...& Grunewald Construction Co., 719 P.2d 384, 385 (Colo.App.1986), aff'd, 749 P.2d 431 (Colo.1988); Greer v. Intercole Automation Co., 553 F.Supp. 275, 276 (D.Colo.1982). In our view and the view of tort reform commentators, the Proportionate Fault Statute establishes a pure several liabi......
  • Request a trial to view additional results

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