Haysville U.S.D. No. 261 v. GAF Corp.
| Decision Date | 10 June 1983 |
| Docket Number | CARMICHAEL-WHEATCROFT,No. 54885,54885 |
| Citation | 666 P.2d 192,233 Kan. 635 |
| Court | Kansas Supreme Court |
| Parties | , 12 Ed. Law Rep. 957 HAYSVILLE U.S.D. NO. 261, Plaintiff, v. GAF CORPORATION, Appellant, v.& ASSOCIATES, P.A.; Buckley Roofing Co., Inc.; and W.R. Grace & Co., Third-Party Defendants-Appellees. |
Syllabus by the Court
1. The concept of joint and several liability between joint tortfeasors which previously existed in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages is to be based on proportionate fault, and contribution among joint judgment debtors is no longer needed in such cases because separate individual judgments are to be rendered. Kennedy v. City of Sawyer, 228 Kan. 439, Syl. p 3, 618 P.2d 788 (1980).
2. In actions where comparative negligence is in issue the court deals in percentages of causal responsibility, and distinctions between primary, secondary, active and passive negligence lose their previous identifies. The nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation, and the "all or nothing" concepts are swept aside. Kennedy v. City of Sawyer, 228 Kan. 439, Syl. p 6, 618 P.2d 788 (1980).
3. If contributory negligence or an analogous defense would not have been a defense to a claim, the comparative negligence statute does not apply.
4. Unless a breach of warranty, either expressed or implied, causes death, personal injury or physical damage to property, the comparative negligence statute does not apply. If the result is simple economic loss, liability and damages are governed by breach of contract principles. Broce-O'Dell Concrete Products, Inc. v. Mel Jarvis Constr. Co., 6 Kan.App.2d 757, Syl. p 1, 634 P.2d 1142 (1981).
5. The difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising under or imposed by agreement; whereas, a tort is a violation of a duty imposed by law. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 79, 652 P.2d 665 (1982).
6. Comparative negligence and implied comparative indemnity are tort-based theories and cannot be applied to contract law.
7. A guarantee is a contract between two or more persons, founded upon consideration, by which one person promises to answer to another for the debt, default or miscarriage of a third person, and in a legal sense, has relation to some other contract or obligation with reference to which it is a collateral undertaking. Timi v. Prescott State Bank, 220 Kan. 377, Syl. p 3, 553 P.2d 315 (1976).
8. To entitle a party to subrogation, he must pay the debt for which another is primarily responsible and such payment must generally be in full discharge of that party's obligation. Mere liability to pay is not ordinarily enough for one to be substituted to the rights of a creditor.
Jerry D. Bogle, of Gott, Young & Bogle, P.A., Wichita, argued the cause and was on briefs, for appellant.
Jeff A. Roth, of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause and H.E. Jones, Wichita, of the same firm, was with him on brief, for Carmichael-Wheatcroft & Associates, P.A., appellee.
James D. Oliver, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Jerry G. Elliott and Susan L. Smith, Wichita, of the same firm, were with him on brief, for W.R. Grace & Co., appellee.
Alan L. Rupe, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause and was on brief, for Buckley Roofing Co., Inc., appellee.
Early in 1974 Haysville School District No. 261 discovered that two elementary school buildings needed reroofing. Carmichael-Wheatcroft & Associates, P.A. (architects) were retained by the school district to determine the extent of repairs required in the repair of the two school building roofs. The architects prepared the specifications which included use of products manufactured by W.R. Grace & Company and GAF Corporation. The architects requested bids from contractors, requiring the bids to be submitted by June 19, 1974, at 2:00 p.m. July 8, 1974, the contracts for reroofing were entered into between the school district and Buckley Roofing Company, Inc. (roofing contractor).
December 3, 1974, just prior to completion of the reroofing, the school district and GAF entered into two "Inspection and Service Guarantees." December 6, 1974, the roofing contractor completed work on the roof except for a few repair items that required warm weather, which were completed in April, 1975.
After installation of the new roofs, cracks appeared in both of the elementary school building roofs. The school district alleged that the cracks were caused by inadequate and defective materials provided by GAF. The school district contacted GAF and requested repairs to both of the leaking roofs. GAF denied liability under the contract with the school district. The school district incurred substantial repair bills and suffered interior damage to the school buildings which it alleged was caused by water penetrating the outer roof membrane. The school district sued GAF in May, 1980, on several fault-based theories, including breach of warranties under the Uniform Commercial Code, negligence and fraud. In addition, the school district alleged breach of the inspection and service guarantees between it and GAF. The school district made no claim against GAF or any other individual involved in the repair of the roof for faulty installation.
GAF joined as third-party defendants (K.S.A. 60-214) the architects, the roofing contractor and the manufacturer of the light-weight concrete insulating material on which the roofs were placed, W.R. Grace & Company (Grace). GAF alleged the third-party defendants primarily were responsible for the damages and GAF was entitled to indemnity for any judgment the plaintiff school district might obtain.
The inspection and service guarantees were produced during discovery. The guarantee contracts between the school district and GAF allegedly were entered into after GAF oversaw and inspected insulation of the roofing membranes of the two schools. The contracts between GAF and the school district stated:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Both Inspection and Service Guarantees are identical and only one is reproduced.
After the two inspection and repair contracts were produced during discovery, the third-party defendants filed their motions for summary judgment on GAF's third-party claims for indemnity based upon the inspection and service guarantees. GAF admitted it had no legal theory for recovery of damages from the third-party defendants except as may arise by reason of its inspection and service guarantees between GAF and the school district.
The district court granted the motions for summary judgment and found that the inspection and service guarantees created neither a legal relationship between GAF and the third-party defendants nor an implied cause of action against them. The district court found as follows:
GAF moved the court to reconsider the dismissal of its third-party claims for indemnity based on the guarantee agreements. The court denied the motion and permission was granted to take this interlocutory appeal. On September 9, 1982, the Court of Appeals granted the defendant GAF's application for permission to take an interlocutory appeal pursuant to K.S.A. 60-2102(b ). Further proceedings in the appeal were stayed until the decision of the Kansas Supreme Court on rehearing in Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158 (1982), aff'd 232 Kan. 194, 653 P.2d 816 (1982). On October 6, 1982, the case was transferred from the Court of Appeals to the Kansas Supreme Court.
In the original specifications for reroofing, the architects included a requirement that the roofing contractor provide a 10 year inspection and service guarantee program (with a 10 year renewable option) equal to the GAF Sentinel System. GAF has not alleged that the inspection and service guarantee signed December 3, 1974, between the school district and GAF were the agreements required to be included in the roofing contractor's bid. The third-party defendants allege, and GAF has not denied, that the guarantee agreements entered into December 3, 1974, were separate agreements between the school district and GAF.
The school district sued GAF under two types of theories: (1) fault-based theories (tort), and (2) a breach of inspection and service guarantees between the school district and GAF (contract). The school district made no claim against GAF or any other party for faulty installation.
Under the fault theory, the school district originally sued GAF. GAF answered the school district's petition and was allowed to join as defendants the architect, the roofing contractor and Grace pursuant to K.S.A. 60-258a(c ), which states:
"On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action."
The school district did not amend its petition to include a claim against the added defen...
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