Lametti v. Peter Lametti Const. Co.

• Court: Minnesota Supreme Court
• Writing for the Court: ROGOSHESKE
• Citation: Lametti v. Peter Lametti Const. Co., 232 N.W.2d 435, 305 Minn. 72 (Minn. 1975)
• Decision Date: 08 August 1975
• Docket Number: No. 44988,44988
• Parties: Peter LAMETTI, Respondent, v. PETER LAMETTI CONSTRUCTION COMPANY, Appellant.

Page 435

232 N.W.2d 435

305 Minn. 72

Peter LAMETTI, Respondent, v. PETER LAMETTI CONSTRUCTION COMPANY, Appellant.

No. 44988.

Supreme Court of Minnesota.

Aug. 8, 1975.

Syllabus by the Court

1. Where two defendants facing imminent trial of claims for personal injury damages by an injured party based on negligence make payment through their insurers in settlement of such claims and by stipulation upon settlement, preserve their pleaded cross-claims for contribution, agreeing to litigate apportionment of the amount paid, action for contribution will lie to reapportion the settlement of the amounts separately paid by the parties as joint tort-feasors.

2. On plaintiff's claim of paying more than his just share of the settlement, the burden of proof is on plaintiff as the party seeking contribution to show defendant's causal negligence, and the evidence is sufficient to support the jury's percentage apportionment of defendant's causal negligence.

3. Claimed errors concerning the court's instruction and admission of evidence found to be without merit.

Cragg & Bailly and J. W. Cragg, Minneapolis, for appellant.

Jardine, Logan & O'Brien, John R. O'Brien and Robert J. Tyrrell and Denis Opsahl, St. Paul, for respondent.

Heard by ROGOSHESKE, TODD, MacLAUGHLIN, YETKA, SCOTT and CHANAK, JJ., and considered and decided by the court en banc.

ROGOSHESKE, Justice.

Appeal from the denial of defendant's motion for judgment notwithstanding verdict or for a new trial in a lawsuit brought to reapportion the amount paid separately by the liability insurers of plaintiff and defendant in settlement of a personal injury claim. Finding proper the trial court's disposition ordering apportionment of the settlement amount in accordance with the jury's special verdict, we affirm.

On August 25, 1969, 14-year-old Cecilia Weeks sustained crippling injuries when she dove into a pond on land owned by plaintiff, Peter Lametti, and being developed by defendant, Peter Lametti Construction Company. Cecilia's personal injury suit, asserted by her father as natural guardian against both Peter Lametti and Peter Lametti Construction Company, was in the initial amount of $1,000,000. Each cross-claimed against the other. Peter Lametti was insured by Great American Insurance Company with policy limits of $100,000. The construction company was insured by Hartford Insurance Company with policy limits of $100,000 and also had excess liability coverage with policy limits of $1,000,000. Immediately prior to trial, a total settlement in the amount of $150,000 was agreed to by Cecilia, her father, and the insurance companies and approved by the trial court. Plaintiff's insurer, Great American, paid $100,000 toward the settlement amount and defendant's insurer, Hartford Company paid $50,000. Both of the defending parties and their insurers received releases, and their cross-claims against each other were dismissed without prejudice.

Although Peter Lametti and the construction company were the named defendants in the personal injury suit and continue as the named adverse parties in this suit for contribution, Great American and Hartford Company effectively controlled both the defense and settlement in the personal injury case and the trial in this case. Great American, utilizing the loan-receipt device, brought this action in the name of Peter Lametti, seeking to apply the principles of equitable contribution in order to reapportion the $150,000 settlement amount between the insurers on the basis of the comparative negligence and respective liability of the insured parties. The case was tried in district court before a jury, which by special verdict apportioned liability at 10 percent to Cecilia Weeks, 35 percent to Peter Lametti, and 55 percent to the construction company. On the basis of the jury's determination of liability, the court ordered judgment against defendant construction company in the amount of $41,500. Defendant appeals from the denial of its motion for judgment notwithstanding verdict or for new trial.

Peter Lametti purchased the property on which the injury occurred in 1965. The land was swampy, and Lametti intended to drain it, construct large ponds upon it, and then sell the land surrounding the ponds as residential lots. To accomplish this end, he hired Peter Lametti Construction Company, a building and earthmoving concern incorporated in 1952 of which Peter Lametti is president and controlling stockholder. Nearly all the equipment used to develop the property belonged to defendant construction company, and the men who worked on the development were employees paid by the company. Peter Lametti supervised the work and was paid a salary by the company. There was no written agreement between Lametti and the company concerning the development of the property.

During the summer of 1969, the banks of the ponds were being sloped and contoured, necessitating pumping operations which muddied the water in the ponds. The company had stored large planks and other lumber in a pile on the property. On various occasions, acting pursuant to Peter Lametti's instructions to keep children away from the area, company employees removed pieces of lumber which were being used as diving boards at the ponds and posted 'no trespassing' signs on the property.

On the day of the injury, an employee of the company was working at a point across the pond from the area where the injury occurred. He was summoned by a group of young people and discovered Cecilia lying face down in 3 or 4 feet of murky water near a diving board where the young people had been swimming and diving. The employee pulled the unconscious girl from the water, and she was revived by mouth-to-mouth resuscitation. The testimony of the young people who were swimming at the pound on that day indicates that Cecilia had been swimming and wading for about 1 1/2 hours before the injury occurred. She had jumped or dived from the makeshift diving board five or six times before the injury-causing dive. She testified by deposition that she has no memory of the events surrounding the accident.

On this appeal defendant contends initially that contribution does not lie because the parties had different grounds for liability, because plaintiff did not secure a release for defendant by its payment, and because plaintiff was a volunteer in its payment of $100,000. We find the arguments of defendant without merit. As we have often indicated, it is not essential to an action for contribution that the one from whom contribution is sought be in precisely the same position regarding liability to the injured party as the one seeking contribution. It is enough that the parties share a common liability to the injured plaintiff. Koenigs v. Travis, 246 Minn. 466, 75 N.W.2d 478 (1956); American Auto. Ins. Co. v. Molling, 239 Minn. 74, 57 N.W.2d 847 (1953). See, also, Chicago, R.I. & P.R. Co. v. Chicago & N.W. Ry. Co., 280 F.2d 110 (8 Cir. 1960). Here, the trial court, by its refusal to direct a verdict for defendant, found jury questions in the existence and the extent of liability of the parties for Cecilia's injury. The jury, by answers to the special verdict, found both parties negligent. Thus the common liability here is of the simplest kind; both parties were joint tortfeasors and their negligence caused the injury.

Nor do we find merit in defendant's contention that plaintiff did not by its payment of $100,000 secure a release for defendant. In advancing this argument, defendant attempts to characterize the agreement reached at the time of settlement of the personal injury claim as one by which each insurer separately settled the claim against it and...