Keefer v. Al Johnson Const. Co.

• Decision Date: 30 December 1971
• Docket Number: Nos. 42550,42551,s. 42550
• Citation: 292 Minn. 91,193 N.W.2d 305
• Parties: Jack KEEFER and Pacific Employers Insurance Company, Respondents, v. AL JOHNSON CONSTRUCTION CO., and Peter Kiewit Sons' Co., defendants and third-party plaintiffs, Respondents-Appellants, v. WISCOMBE SOUTHERN PAINTING COMPANY, third-party defendant, Appellant-Respondent.
• Court: Minnesota Supreme Court

Page 305

193 N.W.2d 305

292 Minn. 91

Jack KEEFER and Pacific Employers Insurance Company, Respondents, v. AL JOHNSON CONSTRUCTION CO., and Peter Kiewit Sons' Co., defendants and third-party plaintiffs, Respondents-Appellants, v. WISCOMBE SOUTHERN PAINTING COMPANY, third-party defendant,

Appellant-Respondent.

Nos. 42550, 42551.

Supreme Court of Minnesota.

Dec. 30, 1971.

Syllabus by the Court

1. The rule that the right of indemnity inures to a person who, without active fault on his part, has been compelled, by reason of a legal obligation, to pay damages occasioned by the initial negligence of another and for which he himself is only secondarily liable, was properly applied in an action brought by an employee, injured in the course of his employment, against a third-party contractor who cross-claimed for indemnity against plaintiff's employer under circumstances where the evidence fairly established that plaintiff's damages resulted from his employer's active and immediate fault and the third-party contractor's liability rested upon a nondelegable duty, the breach of which was technical and vicarious.

2. The fact that an injured employee has received workmen's compensation for his injury will not prevent a common-law action against a third-party tortfeasor nor, in such an action, will it relieve the employer from liability to third parties for injuries done to them. The right of the third party to indemnification against the employer is entirely independent of the elements of workmen's compensation and is based upon a breach of an alleged independent duty or obligation owed to the third party by the employer.

3. An employer operating under the Workmen's Compensation Act cannot be a joint tortfeasor with a third party injuring his employee. Because the act extinguishes the liability of the employer to the employee for negligence, there can be no common liability to the employee, and, accordingly, there can be no issue of comparative negligence between them. Minn.St 4. Where an issue is submitted to the jury on an erroneous instruction or on a prejudicially restrictive theory, a new trial should be granted; but where it conclusively appears, as a matter of law, that the determination on the whole evidence is correct, it should be sustained.

604.01. In the action by the injured employee against a third party, it was proper for the trial court to submit the issue of comparative negligence; in the related indemnity action between the third party and the plaintiff's employer, it was error to submit the issue of comparative negligence. In indemnity, the entire loss falls upon the shoulders of the party who was primarily negligent. The difference between primary and secondary liability, as used in determining the right to indemnity, is based not on a difference in degrees of negligence or on any doctrine of comparative negligence but on the difference in the character or kind of wrongs which caused the injury and in the nature of the legal obligation owed by each wrongdoer to the injured person.

5. Minn.St. 176.061, subd. 10, which permits indemnity against an insured employer only where there is a written agreement therefor, does not have retroactive effect. The statute, which was passed in 1969, accordingly would have no application to an event which occurred in 1962.

6. The retroactive application of the comparative negligence statute, § 604.01, does not abrogate vested rights so as to be constitutionally impermissible. Peterson v. City of Minneapolis, 285 Minn. 282, 173 N.W.2d 353 (1969).

Robb, Van Eps & Gilmore and Don James Chantry, Minneapolis, for respondents-appellants Johnson & Kiewit.

Mahoney, Dougherty, Angell & Mahoney, Minneapolis, for appellant-respondent Wiscombe Painting Co.

Robins, Meshbesher, Singer & Spence, Minneapolis, for respondent.

Heard and considered en banc.

OPINION

MURPHY, Justice.

Plaintiff-employee, injured in the course of his employment and a recipient of workmen's compensation benefits, brought an action for damages against the third-party general contractor. A similar action was brought by the compensation carrier against the contractor. In both actions the contractor instituted a third-party action for indemnity against the employer-subcontractor. The contractor was awarded judgment for indemnity against the subcontractor for damages established by special verdict. The appellant subcontractor asserts error in application of law as to common law and statutory liabilities including comparative negligence.

From the record it appears that plaintiff, Jack Keefer, was employed as a painter by Wiscombe Southern Painting Company, whose workmen's compensation insurer is Pacific Employers Insurance Company. Al Johnson Construction Co. and Peter Kiewit Sons' Co., hereafter called the contractor, entered into a contract with the Corps of Engineers, United States Army, for the construction of the upper lock of the St. Anthony Falls Project in the Mississippi River. The contractor entered into a written agreement with Wiscombe, hereafter the subcontractor, pursuant to which the subcontractor was to do 'all painting required by the contract plan and specifications' relating to the project. The accident giving rise to these actions occurred on June 12, 1962. Plaintiff was employed by the subcontractor in spray-painting the inside of a mooring tank. These tanks are cylindrical, each approximately 12 to 14 feet long and 3 to 4 feet in diameter, with a 15- to 18-inch opening at one end sufficient for a man to enter. The cylinder is divided into three compartments by 'baffle plates' or internal bracing. There is also a metal ladder inside running the length of the cylinder. These cylinders were ultimately to be placed vertically in the water in the lock structure and pressure hoses were to be attached to the open ends, allowing them to float up and down in the lock wake 'to provide easier mooring for the tows.'

Plaintiff was required to spray-paint the inside of the cylinders with a vinyl-based paint mixture. The paint, furnished by the Corps of Engineers, contained an additive, described as 'T--10,' which gave it a highly volatile character. The subcontractor's foreman had provided plaintiff with spray-painting gear, an 'old army gas mask,' and an extension cord with a 'floodlight type' bulb. In the process of painting a cylinder, while wearing his gas mask, he would place the electric light on the floor and hold the spray-painting equipment with both hands. The light bulb was not enclosed in a protective wire covering. The spray painting would create a heavy vapor 'fog' which was confined within the cylinder. There was no ventilation. Plaintiff completed painting the inside of one cylinder without incident. While plaintiff was working in the second cylinder, the trapped vapors ignited, presumably from a break or defect in the unprotected bulb, causing severe burns to plaintiff's body. It appears that the resulting injuries are permanent, and plastic surgery was required. Plaintiff is now able to do light painting work.

The employer's insurance company, Pacific Employers Insurance Company, paid workmen's compensation benefits to plaintiff and paid his medical expenses. It also brought an action against the third-party general contractor, alleging negligence on the contractor's part. Minn.St. 176.061, subd. 5. The basis for the alleged liability of the general contractor is that it breached a nondelegable duty assumed by its contract with the Corps of Engineers to protect against damages resulting from negligence in carrying out the contract. After being sued, the general contractor, as third-party plaintiff, joined the subcontractor as third-party defendant, claiming the right to indemnification for any judgment resulting from plaintiffs' actions against it on the ground that the subcontractor breached the terms of the subcontract by failing to observe safety rules. It is agreed that there was incorporated into the contractor's agreement with the Corps of Engineers a safety manual requiring the use of shielded light bulbs with drop or extension cords and requiring the use of adequate ventilation in connection with spray-painting in confined areas. This same obligation was imposed upon the subcontractor by its agreement with the contractor.

The two actions were tried together, and the fact issues, as conceived by the trial court, were submitted to the jury by special verdict. From the record it would appear that the theories of trial were not clearly defined, and the evidence, as submitted and received, would give the impression that the third-party actions were tried as for contribution, with both the contractor and the subcontractor in the posture of joint tortfeasors. In submitting the issues to the jury, the trial court instructed on comparative negligence, and in answer to questions as to percentage of fault, the jury found that the general contractor's proportion was 28 percent; the employer-subcontractor's, 55 percent; and the plaintiff-employee's, 17 percent. The jury found plaintiff-employee's damages to be in the sum of $52,000 plus.$2,954.39 medical costs.

Pursuant to the verdict, the court initially ordered judgment for the plaintiff-carrier against the general contractor for.$2,954.39 and for plaintiff-employee against the general contractor for $42,657.76 and ordered judgment in favor of the general contractor against the subcontractor for $30,224.92 (which amount would presumably conform to the degree of fault determined on the basis of comparative negligence against the respective parties), thereby awarding the general contractor less than the sum it was obliged to pay to plaintiffs. However, on motion for an amended order for judgment notwithstanding the verdict or for a new trial by both the contractor and the employer-subcontractor, the trial court amended and corrected its order for judgment by giving the contractor judgment for indemnity against...