Pocatello Indus. Park Co. v. Steel West, Inc.

• Citation: 101 Idaho 783,621 P.2d 399
• Decision Date: 09 December 1980
• Docket Number: No. 12636,12636
• Parties: POCATELLO INDUSTRIAL PARK CO., an Idaho Partnership; and Insurance Company of North America, a Pennsylvania Corporation licensed to do business in the State of Idaho, Plaintiff-Appellants, Cross-Respondents, v. STEEL WEST, INC., an Idaho corporation; and Industrial Indemnity Company, a California corporation licensed to do business in the State of Idaho, Defendant-Respondents, Cross-Appellants.
• Court: United States State Supreme Court of Idaho

Page 399

621 P.2d 399

101 Idaho 783

POCATELLO INDUSTRIAL PARK CO., an Idaho Partnership; and Insurance Company of North America, a Pennsylvania Corporation licensed to do business in the State of Idaho, Plaintiff-Appellants, Cross-Respondents, v. STEEL WEST, INC., an Idaho corporation; and Industrial Indemnity Company, a California corporation licensed to do business in the State of Idaho, Defendant-Respondents, Cross-Appellants.

No. 12636.

Supreme Court of Idaho.

Dec. 9, 1980.

Phillip M. Barber, of Elam, Burke, Evans, Boyd & Koontz, Boise, for plaintiffs-appellants, cross-respondents.

Craig L. Meadows, of Hawley, Troxell, Ennis & Hawley, Boise, for defendants-respondents, cross-appellants.

BAKES, Justice.

This is an appeal from a summary judgment entered in favor of defendant Steel West, Inc., and its compensation and liability insurance carrier, Industrial Indemnity Company (IIC).

Steel West had leased the northern two-thirds of a building from plaintiff appellant Pocatello Industrial Park Company. Croft, an employee of Steel West, was injured when a malfunctioning cement door at the southern end of the building fell upon him. Croft was paid $14,128.01 in workmen's compensation benefits and medical expenses by IIC, Steel West's workmen's compensation carrier. Croft then sued Pocatello Industrial for injuries and damages suffered in the accident. The case was tried before a district court judge commencing February 4, 1975. Pocatello Industrial was the only defendant. IIC was not a party to the Croft action. Although counsel for IIC was present in court during the Croft trial, he did not participate.

On March 18, 1975, the trial court issued its memorandum opinion in the Croft action. The court allocated the comparative negligence as follows: Pocatello Industrial, 80%, and Croft, 20%. The court first reduced Croft's total damages of $80,870.45 by 20%, or $16,174.09, the percentage of negligence attributable to Croft. See I.C. § 6-801. Next, the court reduced the award by "the subrogated amount of $14,128.01 due (the) Workmen's Compensation carrier," resulting in a "net to plaintiff of $50,568.35, together with costs." See I.C. § 72-223(3). The court's subsequent findings of fact and conclusions of law, signed June 11, 1975, reflected this same ruling. "(P)laintiff was awarded 80% of the sum of the general and special damages minus the subrogated amount due the workmen's compensation carrier ...."

Thereafter, the defendant in the Croft action, Pocatello Industrial Park, entered objections to the court's findings and conclusions. It argued, among other things, that the negligence of the plaintiff Croft was equal to or greater than that of the defendant. After a hearing, the court issued an order dated July 30, 1975, amending its prior findings and conclusions. While the court rejected Pocatello Industrial's contention that Croft's negligence was equal to or greater than its own, the court did feel that the allocation of 80% of comparative fault to Pocatello Industrial was too high, and thus modified the original decision to hold that defendant's negligence was 72% and the plaintiff's 28%. The court modified Croft's recovery accordingly, reducing it by 28% instead of 20%. However, in its order the court stated that Croft's award was "subject to any lien or subrogation rights of the compensation carrier which may be according to law," rather than reducing the recovery by the amount Croft previously received in compensation benefits as it had earlier done. The court ordered that new documents be prepared to reflect these changes.

On October 16, 1975, the court signed "Amended Findings of Fact and Conclusions of Law." This time it was stated that Croft's award was "subject however, to any lien or subrogation rights of the compensation carrier."

Pocatello Industrial's insurance carrier, Insurance Company of North America (INA), satisfied the Croft judgment. INA and Pocatello Industrial then commenced the instant action against Steel West and IIC. Their complaint was premised on three alternative theories: contractual indemnity; implied or common law indemnity; and contribution.

Defendants Steel West and IIC moved for summary judgment, primarily on the grounds that the doctrines of res judicata or collateral estoppel precluded plaintiffs from relitigating issues common to both this action and the prior Croft action. The trial judge, the same judge who had sat on the Croft case, entered summary judgment for defendants, and this appeal followed.

I

The first issue we address concerns the applicability of the doctrines of res judicata or collateral estoppel. Res judicata is generally invoked to bar a subsequent suit between the same parties or their privies upon the same cause of action. Idaho State University v. Mitchell, 97 Idaho 724, 552 P.2d 776 (1976); 1B Moore's Federal Practice P 0.441(1) (2d ed. 1965). See In re Russell, 12 Cal.3d 229, 115 Cal.Rptr. 511, 524 P.2d 1295 (1974); Seattle First Nat. Bank v. Kawachi, 91 Wash.2d 223, 588 P.2d 725 (1978). Since the Croft case involved different parties and different causes of action, ¹ all the parties to this case agree that we are dealing only with collateral estoppel.

In order for the doctrine of collateral estoppel to apply, the issue in question must have actually been litigated and resolved in the prior suit. See Duff v. Draper, 96 Idaho 299, 527 P.2d 1257 (1974); 1B Moore's Federal Practice P 0.443(5) (2d ed. 1965). Cf. Green v. Gough, 96 Idaho 927, 539 P.2d 280 (1975); Gaige v. City of Boise, 91 Idaho 481, 425 P.2d 52 (1967); Intermountain Food Equipment Co. v. Waller, 86 Idaho 94, 383 P.2d 612 (1963); (cited opinions apply a similar rule to cases involving doctrine of res judicata ).

For the reasons set forth below, we cannot, based on the record before us, hold that the issue of the employer Steel West's negligence was actually litigated in the Croft action. ² First, nowhere in the court's memorandum opinion, findings of fact and conclusions of law, or judgment is there any mention made of Steel West's negligence. If that issue was in fact litigated, we would expect the trial court to have concluded that Steel West's negligence was "0%", or that Steel West had no legal duty to maintain the malfunctioning door, or something to the effect that Steel West was not negligent.

Secondly, the trial court did find that "all parties," including the management of Steel West and many of its employees, were aware that the door was malfunctioning. The court also found that Steel West employees "circumvented the electrical, mechanical system by activating the same with a stick and further, by manually opening and closing the lower door subsequent to the removal of the chain drive." While we cannot conclude from those findings alone that the trial court considered Steel West to be negligent, nonetheless, considering the involvement of Steel West employees in operating and altering the door mechanism, we do conclude that the court on summary judgment below erred in holding as a matter of law that the trial court in the Croft action had found that Steel West was not guilty of any negligence in connection with Croft's accident.

Thirdly, in its memorandum opinion, the trial court listed Pocatello Industrial's three defenses to Croft's claim. None of these defenses involved the matter of Steel West's negligence. If indeed Steel West's negligence was asserted as a defense to a portion of Croft's claim, we would expect the trial court to have so stated.

Finally, IIC and Steel West were not parties to the Croft action. The trial court might have felt that it was precluded from apportioning any negligence to Steel West due to its status as a non-party. ³ If that be the case, we think the trial court erred. The inclusion of non-parties in the special verdict is apparently a question of first impression in Idaho, although we have reviewed other cases in which negligence was apportioned to a non-party. Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979); Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978). In neither case did we comment on the practice. We now adopt the rule which was suggested by Tucker and Jensen and which is clearly the prevalent practice among state courts. ⁴

"It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tortfeasors either by operation of law or because of a prior release." Connar v. West Shore Equipment of Milwaukee, Inc., 68 Wis.2d 42, 227 N.W.2d 660, 662 (1975).

"The reason for such (a rule) is that true apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case." Heft & Heft, Comparative Negligence Manual § 8.131, at 12 (1978). Apparently, only Florida has adopted a contrary rule. Id.; Davis v. Lewis, 331 So.2d 320 (Fla.App.1976), cert. denied 348 So.2d 946 (Fla.1977); Model v. Rabinowitz, 313 So.2d 59 (Fla.App.1975), cert. denied 327 So.2d 34 (Fla.1976); Echeverria v. Barczak, 308 So.2d 633 (Fla.App.1975), cert. denied 321 So.2d 558 (Fla.1975).

It must also be remembered that this is an appeal from a summary judgment, and therefore we are to liberally construe the record in favor of the party opposing the summary judgment. E. g., Farm Bureau Finance Co., Inc. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980); State Tax Comm'n v. Western Electronics, Inc., 99 Idaho 226, 580 P.2d 72 (1978). Moreover, the party seeking to bind another by a prior judgment has the burden of proving that the requirements of collateral estoppel have been met. Peters v. Missouri-Pacific Railroad Co., 483 F.2d 490 (5th Cir. 1973), cert. denied 414 U.S. 1002...