Guillard v. Niagara Machine & Tool Works

• Citation: 488 F.2d 20
• Decision Date: 05 December 1973
• Docket Number: No. 73-1294.,73-1294.
• Parties: Gary GUILLARD, Plaintiff, v. NIAGARA MACHINE & TOOL WORKS, Defendant and Third Party Plaintiff-Appellant, v. GAGE TOOL COMPANY, INC., Third Party Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

488 F.2d 20 (1973)

Gary GUILLARD, Plaintiff, v. NIAGARA MACHINE & TOOL WORKS, Defendant and Third Party Plaintiff-Appellant, v. GAGE TOOL COMPANY, INC., Third Party Defendant-Appellee.

No. 73-1294.

United States Court of Appeals, Eighth Circuit.

Submitted October 18, 1973.

Decided December 5, 1973.

Greer E. Lockhart, Minneapolis, Minn., for appellant.

O. C. Adamson, II, Minneapolis, Minn., for appellee.

Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

Gary Guillard brought an action to recover damages for bodily injuries which he received while operating a power press manufactured by Niagara Machine & Tool Works (Niagara). At the time of the accident, Guillard was within the course and scope of his employment at Gage Tool Company, Inc. (Gage), a corporation engaged in the business of fabricating metal products. The power press responsible for inflicting the injuries was an open back, E150, inclinable press manufactured by Niagara and shipped to Gage. It came equipped with palm (hand-operated) buttons which are so located that when an operator is actuating the machine his hands are not in the path of the ram of the press.

Gage, upon receipt of the press, disconnected the palm buttons and connected a foot switch. The foot switch was not provided by Niagara but a receptacle was built into the machine it manufactured to permit the installation of the foot switch. No guards were added by Gage to prevent operators' hands from wandering under the ram of the press. The machine was used for a punching operation with dies which were not fastened to the press so that it was necessary for the operator to insert his hands under the ram to adjust the dies after each punching operation.

While Guillard was operating the press and while he had his hands in the adjusting position, the press was activated and the ram descended on both of his hands. The accident resulted in the amputation of Guillard's left hand and part of his right hand. Guillard was paid compensation and medical benefits in accordance with the Workmen's Compensation Act of the State of Minnesota.

Thereafter he commenced this action against Niagara claiming:

1. that the press was defective when designed, manufactured and marketed by the defendant in that it was unguarded, capable of being operated with a foot pedal without a guard and there were neither adequate instructions for use nor warning of the danger;

2. that the defendant impliedly and expressly warranted the press to be of merchantable quality and reasonably fit for the reasonably foreseeable uses;

3. that Niagara owed plaintiff a duty of care in the design, manufacture, inspection, testing, advertising and sale of the press; and

4. that Niagara was guilty of wanton and reckless misconduct in that it:

a) knew that adequate guarding of the danger zone of its press was required in order to prevent serious injury to operators;

b) had the ability to guard, instruct or warn against the dangerous condition of the press;

c) had access to standards to assist it in providing adequate guarding, instruction or warning;

d) knew or should have reasonably foreseeably known that it was foolhardy not to guard, instruct or warn;

e) wantonly and recklessly failed to guard, instruct or warn.

Niagara then impleaded Gage as a third party defendant for indemnity or, in the alternative, contribution, claiming that Gage was guilty of wanton and reckless misconduct in that it:

1. knew that adequate guarding of the danger zone of the press was required in order to prevent serious injury to operators;

2. had the ability to guard, instruct or warn against the dangerous condition of the press;

3. had access to standards to assist it in providing adequate guarding, instruction or warning;

4. knew or should have reasonably foreseeably known that it was foolhardy not to guard, instruct or warn;

5. wantonly and recklessly did fail to guard, instruct or warn.

Thereupon Niagara sought indemnity or, in the alternative, contribution in accordance with a determination of the percentage negligence as between the parties.

Gage moved for dismissal of the third party complaint on the basis that the Minnesota Workmen's Compensation Act in effect when the cause of action arose barred any claim for negligence under the facts of this case, and thus, indemnification against an employer who participates in the insurance program.¹ The district court granted the motion and entered final judgment on the order pursuant to Federal Rule of Civil Procedure 54(b). Niagara appeals from that order dismissing its third party claim against Gage.

Contribution and indemnity are variant remedies used to secure restitution. Although similar in nature, they differ in the relief afforded. Contribution rests upon common liability, not joint negligence or joint tort. Merrimac Mining Co. v. Gross, 216 Minn. 244, 248-249, 12 N.W.2d 506, 509 (1943); Parten v. First Nat. Bank & Trust Co., 204 Minn. 200, 201, 283 N.W. 408, 412 (1938); Restatement of Restitution § 81 (1937). Common liability exists when two or more actors are liable to an injured party for the same damages, even though their liability may rest on different grounds. Farmers Insurance Exchange v. Village of Hewitt, 274 Minn. 246, 249, 143 N.W.2d 230, 233 (1966); Koenigs v. Travis, 246 Minn. 466, 472, 75 N.W.2d 478, 483 (1956); Duluth, M. & N. Ry. v. McCarthy, 183 Minn. 414, 236 N.W. 766, 768 (1931). Thus, if, as a matter of law, the concurring negligence of the party from whom contribution is sought gives the injured party no cause of action against him, the claimant cannot recover contribution, even though such concurring negligence was a proximate cause of the injury. American Auto Ins. Co. v. Molling, 239 Minn. 74, 57 N.W.2d 847, 851 (1953). See also Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 371, 104 N.W.2d 843, 847 (1960); Koenigs v. Travis, supra, 246 Minn. at 472, 75 N.W.2d at 483; London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 64 N.W.2d 781, 783 (1954). The right of contribution does not exist in such circumstances because there is no common liability.

The Minnesota Workmen's Compensation Act is intended to control only the rights between employer and employee and at the time this cause of action arose, did not by its terms prevent contribution or indemnity where appropriate. Hendrickson v. Minnesota Power & Light Co., supra; Lunderberg v. Bierman, 241 Minn. 349, 63 N.W.2d 355, 359 (1954); Gleason v. Geary, 214 Minn. 499, 8 N.W.2d 808, 813 (1943). The relevant section in this respect is Minn.Stat. § 176.031 (1969) which, at the time of the accident, provided:

The liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employe, his personal representative, surviving spouse, parent, any child, dependent, next of kin, or other person entitled to recover damages on account of such injury or death. . . .

Thus, the Act affected the right to contribution where the concurrent negligence of the employer and the third party causes injury to an employee. Since workmen's compensation statutes provide that the obligations thereunder are the only liability of the employer to the employee, there is no common liability involving the employer and a third party in such situations; and, therefore, there is no ground for allowing contribution. Hendrickson v. Minnesota Power & Light Co., supra, 258 Minn. at 374, 104 N.W.2d at 849.

Indemnity is the remedy securing the right of a person to recover reimbursement from another for the discharge of a liability which, as between them, should have been discharged by the other. Hanson v. Bailey, 249 Minn. 495, 505, 83 N.W.2d 252, 260 (1957); Restatement of Restitution § 76 (1937). It is appropriate where one party has a primary or greater liability or duty which justly requires him to bear the whole of the burden as between the parties. Hendrickson v. Minnesota Power & Light Co., supra, 258 Minn. at 370, 104 N.W.2d at 847. Hendrickson held that the Workmen's Compensation Act of Minnesota does not preclude the recovery of indemnity from an employer by a third party. However, the circumstances of the recovery of indemnity were limited to five situations:

(1) Where the one seeking indemnity has only a derivative or vicarious liability for damage caused by the one sought to be charged.

(2) Where the one seeking indemnity has incurred liability by action at the direction, in the interest of, and in reliance upon the one sought to be charged.

(3) Where the one seeking indemnity has incurred liability because of a breach of duty owed to him by the one sought to be charged.

(4) Where the one seeking indemnity has incurred liability merely because of failure, even though negligent, to discover or prevent the misconduct of the one sought to be charged.

(5) Where there is an express contract between the parties containing an explicit undertaking to reimburse for liability of the character involved.

Id. at 848.

In Haney v. International Harvester Co., 294 Minn. 375, 201 N.W.2d 140 (1972), a factual situation similar to the one which faces us now was before the Minnesota Supreme Court. The sole issue noted on appeal in that case was whether the third-party action against plaintiff's employer should have been dismissed where the plaintiff-employee, having received workmen's compensation benefits,...