Rollins v. State of California

• Decision Date: 07 January 1971
• Citation: 14 Cal.App.3d 160,92 Cal.Rptr. 251
• Court: California Court of Appeals Court of Appeals
• Parties: James Arthur ROLLINS and Gail Ross Rollins, Minors, by and through Joan Rollins, their guardian, Plaintiffs, v. STATE of California, Defendant and Appellant, and Nina Bammes, Defendant and Respondent. Civ. 12745.

Page 251

92 Cal.Rptr. 251

14 Cal.App.3d 160

James Arthur ROLLINS and Gail Ross Rollins, Minors, by and through Joan Rollins, their guardian, Plaintiffs, v. STATE of California, Defendant and Appellant and Nina Bammes, Defendant and Respondent.

Civ. 12745.

Court of Appeal, Third District, California.

Jan. 7, 1971.

As Modified Jan. 20, 1971.

Harry S. Fenton, Robert F. Carlson, Steven L. Anderson, Sacramento, for defendant and appellant.

Coshow & Barr by William Coshow, Redding, for defendant and respondent.

JANES, Associate Justice.

Defendant state appeals after judgment from an order denying its motion for contribution from its codefendant, Nina Bammes, after the state had paid more than its pro rata share of a personal injury and wrongful death judgment entered jointly against the two defendants in an action which culminated in a plaintiffs' verdict in the amount of $775,000.

The amount required to satisfy the judgment was reduced from $775,000 to $725,000 by virtue of a prior settlement in the amount of $50,000 between plaintiffs and a former defendant. Defendant Bammes, through her insurance carrier, paid the sum of $20,000 (her policy limit) toward satisfaction of the judgment. The defendant state paid the remainder of the judgment, i.e., the sum of $705,000 and plaintiffs then filed a satisfaction of judgment.

Contribution between joint tortfeasors is governed by Title 11, Part II (§§ 875 through 880) of the Code of Civil Procedure. ¹ Section 875, the section with which we are primarily concerned provides: '(a) Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.

'(b) Such right of contribution shall be administered in accordance with the principles of equity.

'(c) Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.

'(d) There shall be no right of contribution in favor of any tortfeasor who has intentionally injured the injured person. ²

'(e) A liability insurer who by payment has discharged the liability of a tortfeasor judgment debtor shall be subrogated to his right of contribution.

'(f) This title shall not impair any right of indemnity under existing law, and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them. ³

'(g) This title shall not impair right of a plaintiff to satisfy a judgment in full as against any tortfeasor judgment debtor.

The pro rata share of each of the defendants was the sum of $362,500. (§ 876(a).) ⁴ Since defendant Bammes paid only the sum of $20,000, the $342,500 balance of her pro rata share of $362,500 has been paid by the state, in addition to payment of its own pro rata share of $362,500, for a total of $705,000. The state's motion for contribution was brought in the trial court pursuant to section 878 which provides for entry of judgment of contribution upon properly noticed application. (§§ 875(e), 878; Thornton v. Luce (1962) 209 Cal.App.2d 542, 550--551, 26 Cal.Rptr. 393 (hear. den.); Augustus v. Bean (1961) 56 Cal.2d 270, 14 Cal.Rptr. 641, 363 P.2d 873.)

Denial of the state's motion for contribution appears to have been based, at least in part, on the court's determination that an agreement had been reached prior to judgment between the attorneys for plaintiffs and counsel for Mrs. Bammes that she would pay her policy limit of $20,000, irrespective of the verdict to be reached by the jury, and that plaintiffs would not attempt to obtain any further amounts from Mrs. Bammes (although they would not release her from this or any subsequent action). The existence of such agreement is not disputed; equally beyond question, however, is the clear absence of an effective settlement between plaintiffs and defendant Bammes prior to verdict. ⁵

The trial court apparently accepted the argument of Mrs. Bammes' counsel that subdivision (b) of section 875, which provides for administration of the right to contribution in accordance with equitable principles, allowed denial of the state's motion for contribution notwithstanding the absence of a formal settlement. No reference was made to section 877 which sets forth the requirements of a prejudgment settlement, release, or good faith disposition sufficient to discharge one joint tortfeasor from liability for contribution to another tortfeasor, ⁶ nor does the abortive agreement in the instant case comply with those requirements.

Some light is thrown on the factors influencing the trial court's decision by examination of its extensive analysis, after hearing arguments by counsel, at the time of ruling: ⁷

The trial court's use of the phrase 'equitable apportionment,' (see fn. 7, ante) a term which does not appear in any of the relevant code sections (§§ 875--880), may indicate the infusion into the controversy of the concept of implied or equitable indemnity. That concept, however, clearly has no place in the present case and its application is not suggested by defendant Bammes.

As noted in Atchison, T. & S.F. Ry. Co. v. Franco (1968) 267 Cal.App.2d 881, 886, 73 Cal.Rptr. 660, 664, 'A distinction exists between contribution and indemnity in that in the former the parties liable for the tort are said to be In pari delicto and the damages are equally divided, but in the latter, the parties are not deemed to be In pari delicto and the entire burden is placed upon one of them. (See Prosser, Torts (2d ed. 1955), p. 249; Anno. 88 A.L.R.2d 1355, 1356--1357.) Where the fault of each is equal in grade and similar in character, implied indemnity is not available since no one should be permitted to found a cause of action on his own wrong. (Herrero v. Atkinson, Supra, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490.)'

In Thornton v. Luce, supra, 209 Cal.App.2d 542, 26 Cal.Rptr. 393, a landmark case interpreting the contribution sections, the court emphasized the distinction between contribution and indemnity: '* * * the right of contribution, where it exists under the new statutory provisions, presupposes a Common liability which is shared by joint tortfeasors on a pro rata basis, whereas the right of indemnity, because of some special relationship existing between the tortfeasors shifts the Entire loss upon the one bound to indemnify. (Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 75, 4 Cal.Rptr. 379.)' (209 Cal.App.2d at pp. 550--551, 26 Cal.Rptr. at p. 398; see also Augustus v. Bean, supra, 56 Cal.2d at p. 272, 14 Cal.Rptr. 641, 363 P.2d 873.)

Although the contribution statute here under review has been cited frequently, discussions of the manner in which a judgment is to be apportioned between joint tortfeasors have generally appeared in the context of cases in which indemnification is sought. One notable exception is the previously mentioned case of Thornton v. Luce, supra, 209 Cal.App.2d 542, 26 Cal.Rptr. 393, which directs attention to the principle that each joint tortfeasor is to bear no more than his pro rata share. (Id., at pp. 551--552, 26 Cal.Rptr. 393.) ⁸

The indemnification cases state the same rule of equal responsibility for the debt where the rule of contribution obtains. As an example, see Pearson Ford Co. v. Ford Motor Co. (1969) 273 Cal.App.2d 269, at pages 271 to 272, 78 Cal.Rptr. 279, at page 281 (hear. den.), in which the court, citing many such cases, declares:

'Where, as here, two persons are held legally responsible in tort for the injury or damage to another, the question frequently arises as to how the loss is to be apportioned between the two responsible parties. If the rule of contribution obtains, the loss is distributed equally between them. (Code Civ.Proc., §§ 875, 876; Herrero v. Atkinson, 227 Cal.App.2d 69, 73, 38 Cal.Rptr. 490, 8 A.L.R.3d 629; Atchison, T. & S.F. Ry. Co. v. Lan Franco, 270 Cal.App.2d 881, 884--885, 73 Cal.Rptr. 660.) If, however, one of the responsible parties is entitled to indemnity, he may shift or transfer the entire loss to the other who in equity and justice should bear it. (Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 376, 25 Cal.Rptr. 301; Herrero v. Atkinson, Supra, 227 Cal.App.2d 69, 73, 38 Cal.Rptr. 490.) The right to implied indemnity may arise from contract or from equitable considerations. (City & County of San Francisco v. Ho Sing, 51 Cal.2d 127, 130, 330 P.2d 802; Cahill Bros., Inc., Supra, 208 Cal.App.2d at p. 376, 25 Cal.Rptr. 301.) It is not available where the responsible parties are In pari delicto, and the fault of each is equal in grade and similar in character (Herrero v. Atkinson, Supra, 227 Cal.App.2d at p. 74, 38 Cal.Rptr. 490; Atchison, T. & S.F. Ry. Co. v. Lan Franco, 267 Cal.App.2d 881, 886, 73 Cal.Rptr. 660).'

As we have noted, no right to indemnification is claimed by Mrs. Bammes, nor is any basis for such entitlement shown. Accor...