State ex rel. General Elec. Co. v. Gaertner, No. 64787

• Court: United States State Supreme Court of Missouri
• Writing for the Court: WELLIVER; RENDLEN, C.J., concurs in result in separate opinion filed and concurs in separate opinion of BLACKMAR; BLACKMAR, J., concurs in result in separate opinion filed and concurs in separate opinion of RENDLEN; HOUSER; BILLINGS; RENDLEN; BLACKMA
• Citation: 666 S.W.2d 764
• Decision Date: 20 March 1984
• Docket Number: No. 64787
• Parties: STATE ex rel. GENERAL ELECTRIC COMPANY, Relator, v. The Honorable Gary M. GAERTNER, Judge of the Circuit Court of the City of St. Louis, Mo., Respondent.

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666 S.W.2d 764 STATE ex rel. GENERAL ELECTRIC COMPANY, Relator,
v.
The Honorable Gary M. GAERTNER, Judge of the Circuit Court
of the City of St. Louis, Mo., Respondent. No. 64787. Supreme Court of Missouri,
En Banc. March 20, 1984.
Rehearing Denied April 16, 1984.

Donovan S. Robertson, St. Louis, for relator.

Evans & Dixon, Gerre S. Langton, Edward Meyer, St. Louis, for respondent.

WELLIVER, Judge.

This is an action in prohibition brought by relator General Electric Co., (General Electric) challenging an attempt by Hussmann Refrigerator Co. (Hussmann) to implead it as a third party defendant in a suit pending against Hussmann. The issue

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presented is whether a defendant in a pending tort action can implead a third party defendant after the statute of limitations has run in the underlying suit. This Court issued a provisional writ prohibiting respondent circuit judge from proceeding further in the underlying suit pending resolution of this question. We now quash our provisional writ.

Goldes Department Store, Inc. (Goldes) brought suit for damages against Hussmann in July 1978 alleging that a fire at its store in St. Louis County on April 29, 1974, resulted from a defective electric fluorescent light fixture that had been designed, manufactured, supplied and sold by Hussmann's predecessor. In July 1981, approximately seven years and three months after the fire, and three years after the filing of the underlying action, Hussmann initiated a third party action against General Electric. Hussmann averred that in the event it was adjudged liable to Goldes, it was because of General Electric's design and manufacture of a defective component of the light fixture. Hussmann requested the court to apportion the relative fault between it and General Electric should it be held liable.

General Electric then filed a motion for summary judgment. After respondent denied the motion, General Electric filed a petition for a writ of prohibition with this Court and we issued a provisional writ.

General Electric has raised two points in this proceeding. First, it contends that the statute of limitations applicable to Goldes' claim, § 516.120(4), RSMo 1978, ¹ also is applicable to any third party action brought ancillary to the plaintiff's claim pursuant to Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978), and that Hussmann's suit is barred since it was not initiated within this statutory period. Second, General Electric contends Hussmann's third party suit is barred by laches.

I

This Court has not resolved the issue of whether a third party plaintiff seeking contribution under the doctrine of Whitehead & Kales may implead a third party defendant under Rule 52.11(a) after the statute of limitations has expired on the claim asserted by the original plaintiff. General Electric urges us to bar third party practice in this situation. It contends that liability for contribution as established by Whitehead & Kales arises from the parties' common tort liability; that the legislature in § 516.120(4) restricted the period for tort liability to five years; and, that we will circumvent the intent of § 516.120(4) unless we bar third party suits arising from a tort claim initiated after expiration of the five year statutory period.

In Whitehead & Kales we held that a tortfeasor sued by an injured party has the substantive right to obtain a relative apportionment of damages among all tortfeasors, whether or not they were named as defendants in the plaintiff's suit. The practical effect of the holding was the creation of a new cause of action which expanded the right to contribution among joint tortfeasors. Prior to Whitehead & Kales, the only right to contribution among tortfeasors was that granted by § 537.060, RSMo Cum.Supp.1983, providing for contribution among tortfeasors who were "[d]efendants in a judgment." See Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 131 (Mo. banc 1948). This statutory right to contribution was available only after the entry of judgment against the defendants. In addition to authorizing contribution from tortfeasors whom the plaintiff had not sued, Whitehead & Kales permitted enforcement of the right to contribution in the plaintiff's original action by means of impleader under Rule 52.11(a). The rule provides, in part:

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be

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liable to him for all or part of the plaintiff's claim against him.

Our subsequent decision in Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. banc 1982), held that the right to contribution also could be enforced in a separate suit after judgment has been entered in the original suit. There was no need for us to decide what statute of limitations applied to actions for contribution or when the statute commenced to run in either Whitehead & Kales or Safeway. In Whitehead & Kales the question of the appropriate statute of limitations was not addressed by the Court and in Safeway the underlying statute of limitations had not run at the time of commencement of the separate suit for contribution.

General Electric's contention that we should measure the statute of limitations applicable to the cause of action created by Whitehead & Kales from the time the plaintiff's claim accrues reflects a basic misconception of both the nature of a third party claim and our decision in Whitehead & Kales. It is well established in case law that the cause of action asserted by a third party plaintiff, whether based on contribution, indemnification or some other theory of recovery, is separate and distinct from the tort claim asserted by the plaintiff against the defendant. See, e.g., Doall v. Michigan Consolidated Gas Co., 23 Mich.App. 454, 179 N.W.2d 26, 27-28 (1970); Blum v. Good Humor Corp., 57 App.Div.2d 911, 394 N.Y.S.2d 894, 896 (1977); McKay v. Citizens Rapid Transit Co., 190 Va. 851, 59 S.E.2d 121, 123-24 (1950); State Farm Mutual Auto Ins. Co. v. Schara, 56 Wis.2d 262, 201 N.W.2d 758, 759 (1972); 3 Moore's Federal Practice § 14.09 (2d ed.); Annot. 57 A.L.R.3d 927, 929 (1974). In cases such as the one we have before us, virtually all jurisdictions hold that the third party plaintiff's claim arises, and the statute of limitations commences to run, at the time the defendant in the original suit pays more than his or her proportionate share of an adverse judgment. See generally Annot., 57 A.L.R.3d 867, 875-77 (1974). See also Simon v. Kansas City Rug Co., 460 S.W.2d 596, 600 (Mo.1970). The foregoing does not mean, however, that the third party action is barred until the defendant pays more than his or her proportionate share of the judgment. Like its counterpart in the Federal Rules of Civil Procedure, Rule 14(a), our Rule 52.11(a) serves to "accelerate the right to contribution among joint tortfeasors even though such right is 'inchoate, unascertainable and contingent until [the joint tortfeasor] pays more than his proportionate share of the common liability.' " 3 Moore's Federal Practice § 14.08 at 14-52 (2d ed.), quoting Bosin v. Minneapolis, St. Paul & Sault Ste. Marie R.R. Co., 183 F.Supp. 820, 823 (E.D.Wis.1960). See also Glens Falls Indemnity Co. v. United States, 229 F.2d 370, 373 (9th Cir.1955); Markvicka v. Brodhead-Garrett Co., 76 F.R.D. 205, 207 (D.Neb.1977).

The wording of Rule 52.11(a) clearly contemplates no time limitation upon the right to file the third party proceeding. "At any time after commencement of the action" is but another way of saying "during the pendency of the action." Moreover, Safeway held that a defendant may enforce his or her claim for contribution by separate suit after judgment in the original suit. Recognition of the right to contribution after judgment tacitly assumes the existence of an inchoate right to contribution during the pendency of the action.

The drafters of the Uniform Comparative Fault Act ² address enforcement of the right to contribution and the time within which the action shall be commenced. In Gustafson v. Benda, 661...