Hamilton v. Volkswagen of America, Inc., 83-320

• Decision Date: 05 October 1984
• Docket Number: No. 83-320,83-320
• Citation: 484 A.2d 1116,125 N.H. 561
• Parties: Joseph L. HAMILTON v. VOLKSWAGEN OF AMERICA, INC. et al.
• Court: New Hampshire Supreme Court

Page 1116

484 A.2d 1116

125 N.H. 561

Joseph L. HAMILTON v. VOLKSWAGEN OF AMERICA, INC. et al.

No. 83-320.

Supreme Court of New Hampshire.

Oct. 5, 1984.

Wiggin & Nourie, Manchester (Alan R. Kusinitz, on brief, and Richard B. McNamara, on brief and orally, Manchester), for plaintiff.

Myers & Laufer, Concord (David W. Jordan, Concord, on brief and orally), for defendants.

SOUTER, Justice.

This is an appeal in a third party action for indemnity. In the underlying action, Kathy Hamilton claims that the present third party plaintiff, Joseph Hamilton, is liable in negligence as the operator of an automobile involved in an accident. Joseph Hamilton brought the present action sounding in strict liability, negligence and warranty, claiming direct liability and liability for indemnity against the seller and the manufacturer of the automobile that he had purchased and was driving at the time of the accident. The defendants moved to dismiss, and the Superior Court (Temple, J.) granted the motion with respect to all claims except that for direct liability in negligence. The plaintiff appeals the dismissal of his claims for indemnity. We affirm.

Since this is an appeal from an order granting a motion to dismiss, we will assume the truth of facts pleaded in the complaint and the truth of reasonable inferences from them as construed most favorably to the plaintiff. Royer Foundry & Mach. Co. v. N.H. Grey Iron, Inc., 118 N.H. 649, 392 A.2d 145 (1978). Because the complaint incorporates the allegations made by the plaintiff in the underlying action, we must make like assumptions about those allegations and the inferences that may be drawn from them.

As so derived, the facts before us are that on December 9, 1978, the present plaintiff was driving a 1977 Volkswagen Rabbit, with his pregnant wife as a passenger. As he headed south on South Willow Street in Manchester, he negligently drove across the median of the wet and snow-covered road and collided with another car heading north. His wife was injured and as a result lost the nine-month-old fetus she was carrying.

The plaintiff's wife brought the underlying action against him for negligently causing her personal injuries. As administratrix of the estate of the unborn child, she has also made a claim for wrongful death. Counsel for the present defendants have represented that the wife also brought an action in strict liability against them, which was pending in the United States District Court for this district at the time of the argument.

Thereafter the plaintiff brought this third party action against the seller and the manufacturer of the car, claiming liability for indemnification against any judgment that the plaintiff's wife might obtain against him in the underlying action. The nub of the present plaintiff's argument is that the obligation to indemnify arises from the defendant's breach of duties to manufacture and sell a car capable of withstanding a low-speed collision without serious damages.

The issue on this appeal is whether the trial judge correctly applied the holding of Consolidated Utility Equipment Services, Inc. v. Emhart Manufacturing Corp., 123 N.H. 258, 459 A.2d 287 (1983). We conclude that he did.

In that case this court decided against generally extending a right of indemnification to a passively negligent tortfeasor as against an actively negligent one. Instead, we limited the right to indemnity to two situations: "where the indemnitee's liability is derivative or imputed by law ... or where an express or implied duty to indemnify exists." Id. at 261, 459 A.2d at 288-89 (citations omitted).

The facts of this case do not bring it within either category. The pleadings in the underlying action do not claim any liability against the present plaintiff based upon the fault of the present defendants. Those pleadings allege that the present plaintiff was negligent in driving the car. The pleadings rest on allegations about his action or inaction, not about the behavior of someone else.

Neither do the pleadings describe the closely related situation in which we have found an express or implied duty to indemnify. Prior to Emhart, two leading cases exemplified the conditions under which an implied duty might be found. Sears, Roebuck & Co. v. Philip, 112 N.H. 282, 294 A.2d 211 (1972); Wentworth Hotel v. Gray, Inc., 110 N.H. 458, 272 A.2d 583 (1970). In each case the indemnitor had agreed to perform a service for the indemnitee. In each, the indemnitor was assumed to have performed negligently. And in each, the result was a condition that caused...