National Farmers Union Property & Cas. Co. v. Nelson

• Decision Date: 10 January 1967
• Docket Number: No. 52118,52118
• Citation: 260 Iowa 163,147 N.W.2d 839
• Parties: NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Appellee, v. Mavis I. NELSON and Lyle V. Nelson and Iowa Home Mutual Casualty Company, Appellants.
• Court: Iowa Supreme Court

Page 839

147 N.W.2d 839

260 Iowa 163

NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Appellee, v. Mavis I. NELSON and Lyle V. Nelson and Iowa Home Mutual Casualty Company, Appellants.

No. 52118.

Supreme Court of Iowa.

Jan. 10, 1967.

Rehearing Denied March 7, 1967.

Ross H. Sidney, Des Moines, and W. M. Cornwall, Spencer, for appellants.

Fitzgibbons & Fitzgibbons, Estherville, for appellee.

LARSON, Justice.

By action in equity plaintiff seeks contribution from defendants for one half of plaintiff's expenditures incident to settlement of a lawsuit. Plaintiff claims that in the accident giving rise to the expenditures defendants Nelson were joint tort-feasors and resultantly liable for contribution. One aspect of the case was before us in Pedersen v. Bring, 254 Iowa 288, 117 N.W.2d 509. We there held that the instrument entitled 'Covenant Not to Sue' was not, as a matter of law, such a full release as to release others claimed to be liable.

The background factual situation in the present controversy is quite involved but not in material controversy. We will refer to the parties originally involved as Freeman, Bring, Pedersen and Nelson.

National Farmers Union Property and Casualty Company, plaintiff herein, was Bring's insurance carrier. For convenience, we shall refer to plaintiff as Bring. Iowa Home Mutual Casualty Company, originally one of the defendants, is Nelson's insurance carrier.

The Nelsons are named as defendants and, although their insurance company on motion has been removed, apparently the controversy is actually between insurance companies.

On September 27, 1957, Freeman was driving west on Highway 9 in Emmet County. Bring was behind Freeman traveling in the same direction. While in a no-passing zone Bring attempted to pass Freeman.

The Pedersen car was approaching from the west. Eleanor Dorr was a passenger in the Pedersen car. Mrs. Nelson, with her children as passengers, was following Pedersen. In avoiding a collision with Bring, Pedersen applied the car brakes, left the highway and came to a stop on the shoulder. Nelson was also forced off the highway and collided with (rear-ended) Pedersen. Injuries, damage and lawsuits resulted. Mrs. Dorr and Bring. This action was subsequently dismissed. The Nelsons sued Bring. Pedersen sued Bring, and in this action Bring cross-petitioned against Freeman and Nelson.

Prior to the commencement of any of these actions the Nelsons had obtained a covenant not to sue from Pedersen for the nominal amount of $79.12. This was the instrument before us in 254 Iowa 288. Mrs. Pedersen later claimed this instrument was obtained by fraud and misrepresentation and she refused to cash the draft tendered by the insurance carrier.

On motion, the Nelson case was transferred from Pocahontas County to Emmet County and consolidated with the Pedersen case. Thereafter, when these cases were ready for trial, a settlement was effected with Arlene Pedersen for the total sum of $20,000.00 wherein Bring, through her insurance carrier, the National Farmers Union Property and Casualty Company, paid the sum of $19,250.00, and Freeman, through his insurance carrier, contributed the sum of $750.00. Demand was made upon the Nelsons and their insurance carrier to contribute to said settlement, which demand was refused. The case of the Nelsons against Bring remained for trial.

Thereafter, the insurance carrier of Bring, National Farmers Union Property and Casualty Company, the plaintiff in this case, commenced suit against the Nelsons in equity for contribution, claiming they were joint tort-feasors. Following the commencement of the action now before this court, the case of Nelson et al. v. Bring was tried and resulted in verdicts in favor of the defendant. Following said verdicts, the plaintiff herein filed an application for the adjudication of law points. Plaintiff was given judgment against these defendants for one half of the total amount of the settlement and all expenses and attorneys' fees incurred in connection therewith.

This appeal is from the judgment granted plaintiff as against these defendants on an application to adjudicate law points, said judgment being in the amount of $11,639.25, with interest thereon at five per cent from March 9, 1963, and for the costs of this action.

As indicated, supra, the case of Nelson et al. v. Bring resulted in verdicts in favor of defendant Bring. In connection with those verdicts, five special interrogatories submitted to the jury were answered as follows:

'SPECIAL INTERROGATORIES

'(1) Did the plaintiff Mavis I. Nelson establish by the burden of the proof that she was not guilty of contributory negligence? Yes _ _ No X

'(2) Did the plaintiff Mavis I. Nelson establish that she was not following the Pedersen car too closely immediately prior to the accident? Yes _ _ No X

'(3) Was the plaintiff Mavis I. Nelson keeping a proper lookout immediately prior to the accident? Yes _ _ No X

'(4) Did the plaintiff Mavis I. Nelson have control of her vehicle immediately before the accident? Yes _ _ No X

'(5) Was the plaintiff Mavis I. Nelson operating her vehicle at a speed that would permit her to bring the same to a stop within the assured clear distance ahead? Yes _ _ No X

Defendants in the action now before us demanded trial by jury on several alleged factual issues. Pursuant to plaintiff's application for adjudication of law points, a pretrial conference was ordered and held. The court reviewed the background, numerous exhibits offered incident to the original lawsuits, and the oral testimony, including testimony as to plaintiff's expense incident to settlement of the Pedersen-Bring case. Objections to the propriety of the proceeding were continually made by defendants.

In spite of defendants' many requests for a jury trial on issues of fact, the trial court ruled on plaintiff's application for adjudication of law points and held plaintiff entitled to contribution from defendants in an amount equal to one half of the sum paid in settlement plus one half of the costs and expenses in the Pedersen-Bring case, together with interest and costs.

Defendants have appealed.

I. Defendants claim the trial court erred in entering judgment for contribution upon plaintiff's application for separate adjudication of law points. They claim that there were fact issues yet to be determined by a jury. We agree.

Rule 105, Rules of Civil Procedure, says: 'The court may in its discretion, and must on application of either party, made after issues joined and before trial, separately hear and determine any point of law raised in any pleading which goes to the whole or any material part of the case. It shall enter an appropriate final order before trial of the remaining issues, adjudicating the point so determined, which shall not be questioned on the trial of any part of the case of which it does not dispose. If such ruling does not dispose of the whole case, it shall be deemed interlocutory for purposes of appeal.'

In ruling on the application for adjudication of law points, only uncontroverted issues which present points of law may be determined. Unresolved factual issues prevent any judgment or determination of the whole case in such a hearing. If there was controversy as to the controlling facts here, the court's contribution judgment was not within the scope of rule 105, Rules of Civil Procedure. Brandt v. Olson, 190 F.Supp. 683 (D.C.1961).

Appellants maintain the vital fact issue, unresolved at the time of this hearing, was whether Nelson was liable to Pedersen, that actionable negligence, which includes freedom from contributory negligence of the injured party, is a necessary prerequisite to a suit for contribution, and until there was either a finding Nelson was liable to Pedersen, i.e., that Nelson was proximately negligent as to Pedersen and that Pedersen was not guilty of contributory negligence, or an admission of liability, which there was not, there could be no valid contribution judgment entered in this hearing. Appellants demanded a jury at all times.

Appellee, on the other hand, maintained the issue as to Nelson's negligence in this matter has been established in the Nelson v. Bring case, and contends that Nelson and Bring, being joint tort-feasors, are jointly liable to the injured third party Pedersen, that the issue of Nelson's negligence is res judicata, and that contribution is an equitable matter which can and should be determined by the court on a record such as this and where the reasonableness of the settlement was well established therein.

Appellants maintain the parties are not joint tort-feasors, but at best would only be concurrent tort-feasors, that their liability as well as appellee's has nt been legally established, and that the reasonableness of the amount claimed as contribution is also a question of fact, that if appellee was not a volunteer, the liability of each should be determined by a jury before they can be called concurrent tort-feasors who are entitled to equitable contribution.

II. Plaintiff has the burden of establishing a right to contribution. Hawkeye-Security Ins. Co. v. Lowe Construction Co., 251 Iowa 27, 32, 99 N.W.2d 421; Mineke v. Fox, 256 Iowa 256, 263, 126 N.W.2d 918.

III. One seeking contribution must admit or prove his own actionable negligence to the third party injured. Allied Mutual Casualty Co. v. Long, 252 Iowa 829, 107 N.W.2d 682. In the instant case plaintiff admits negligence of its insured driver.

IV. Actionable negligence and liability to the injured third party on the part of the party from whom contribution is sought must be established. Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23, 60 A.L.R.2d 1354. 'Contribution is based on Concurrent negligence of the parties toward the injured party And requires common liability.' (Emphasis supplied.) Iowa Power and Light Co. v. Abild Construction Co., Iowa, 144 N.W.2d 303, 308. We find this statement in 18 Am.Jur.2d, Contri...