National Mut. Ins. Co. v. Whitmer

• Decision Date: 09 June 1982
• Docket Number: No. 81-1604,81-1604
• Parties: , 24 O.O.3d 248 NATIONAL MUTUAL INSURANCE COMPANY, Appellee, v. WHITMER et al., Appellants.
• Court: Ohio Supreme Court

Page 149

70 Ohio St.2d 149

435 N.E.2d 1121, 24 O.O.3d 248

NATIONAL MUTUAL INSURANCE COMPANY, Appellee, v. WHITMER et al., Appellants.

No. 81-1604.

Supreme Court of Ohio.

June 9, 1982.

Syllabus by the Court

A joint tortfeasor, who pays more than his proportionate share of common liability after the effective date of the Ohio Contribution Among Joint Tortfeasors Act as a result of an injury which was suffered prior to the effective date of the Act, may assert a claim to recover the amount which he paid in excess of his proportionate share of common liability.

The facts in this case are undisputed. On December 1, 1972, appellant Jack T. Whitmer was operating an automobile owned by his father, appellant Harold E. Whitmer, on a highway within Montgomery County. Vicki L. Butler was a passenger in that vehicle. A series of events, the precise nature of which is immaterial to the issues here considered, resulted in Whitmer's collision with an automobile operated by Connie K. Barnett and in a collision with a third vehicle operated by Scott C. Charlesworth, as a consequence of which Butler suffered extensive personal injuries.

On October 4, 1976, National Mutual Insurance Company (National), the appellee, as the insurer of Barnett, paid Butler (and her parents) the sum of $20,500 as compensation for her injuries and obtained a release ¹ from the Butlers.

On March 21, 1977, National commenced an action for contribution against the Whitmers in the Court of Common Pleas. Ultimately, the case was heard by a referee of the court upon whose report and recommendation judgment was entered in favor of National. The court found that, as a result of its payment to the Butlers, National was subrogated to Barnett's right of contribution to the extent of the amount it had paid in excess of Butler's injuries as caused by the joint tort of Barnett and Whitmer. The court adopted the finding of its referee that Jack Whitmer was 60 percent responsible for those injuries and, accordingly, awarded judgment in favor of National for $12,300, i.e., the amount it had paid in excess of Barnett's proportionate share of her common liability with Whitmer.

Throughout the course of the litigation, the Whitmers objected to the proceeding because recovery on the claim would require an unconstitutional retroactive application of the Ohio Contribution Among Tortfeasors Act. ² Their contention was predicated upon the fact that National paid the consideration for the release from the Butlers on October 4, 1976, three days following the effective date of the statutes upon which the company's claim for contribution was premised and some 46 months after the tort had been committed. ³

An appeal, taken by the Whitmers, eventuated in an affirmance by the Court of Appeals which certified the record of the case to this court for review and final determination upon a finding that its judgment was in conflict with the determination of the Court of Appeals for Ross County in Acton v. Kroger Company (December 4, 1976), No. 685, unreported.

Jenks & Myers Co., L. P. A., and Robert J. Surdyk, Dayton, for appellee.

Pickrel, Schaeffer & Ebeling, William L. Havemann and Gregory F. Singer, Dayton, for appellants.

SHANNON, Justice.

The singular question presented by this case is whether a joint tortfeasor, who pays more than his proportionate share of common liability after the effective date of the Ohio Contribution Among Joint Tortfeasors Act as a result of an injury which was suffered prior to the effective date of the Act, may assert a claim to recover the amount which he paid in excess of his proportionate share of common liability.

Appellants contend that R.C. 2307.31 and 2307.32 are legislative enactments affecting substantive rights because they created a right of action between tortfeasors with respect to tortious results caused by them when in pari delicto, a right which did not exist in Ohio theretofore. Resultantly, they reason, application of the legislation to an injury which was suffered prior to its effective date is prohibited by Section 28, Article II of the Ohio Constitution. ⁴ The assumption upon which the argument relies is that the right of contribution arises on the date of the tortious injury.

Appellee responds that a valid cause of action to recover an amount paid by a joint tortfeasor in excess of his proportionate tribution does not accrue until payment of the excess amount, which payment results in the extinguishment of the common liability of all tortfeasors.

The Act, as pertinent to the issue sub judice, follows.

R.C. 2307.31(A): " * * * The right of contribution exists only in favor of a tortfeasor who has paid more than his proportionate share of the common liability * * *."

R.C. 2307.31(B): "A tortfeasor who enters into settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement * * *."

R.C. 2307.32(C): "If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either discharged by payment the common liability * * * or agreed while action is pending against him to discharge the common liability * * *."

It is clear from the provisions of the Act that the liability for contribution is distinct from the liability for the jointly committed tort. Liability to an injured party arises at the time of the tort. Liability for contribution arises only in favor of a joint tortfeasor and then only when that tortfeasor has paid more than his proportionate share of the common liability. Ohio's statutory scheme for contribution does not concern the basic relationship of tortfeasors to one who has suffered injury...