Stephenson v. McClure

• Decision Date: 12 November 1980
• Docket Number: No. 11458.,11458.
• Citation: 606 S.W.2d 208
• Parties: Kimberly STEPHENSON, by the Lawful Guardian of the Person and Estate of Kimberly Stephenson, Bert Parrack, Plaintiff, v. Thomas E. McCLURE, Defendant-Appellant, and Della Louise Killian, Administratrix of the Estate of Fred T. Killian, Deceased, Defendant-Respondent.
• Court: Missouri Court of Appeals

606 S.W.2d 208

Kimberly STEPHENSON, by the Lawful Guardian of the Person and Estate of Kimberly Stephenson, Bert Parrack, Plaintiff, v. Thomas E. McCLURE, Defendant-Appellant and Della Louise Killian, Administratrix of the Estate of Fred T. Killian, Deceased, Defendant-Respondent.

No. 11458.

Missouri Court of Appeals, Southern District, Division Two.

August 29, 1980.

Motion for Rehearing and for Transfer Denied September 26, 1980.

Application to Transfer Denied November 12, 1980.

Gary R. Cunningham, Charles F. Kiefer, Jr., Daniel, Clampett, Rittershouse, Dalton & Powell, Springfield, for defendant-appellant.

Kenneth H. Reid, Rodney E. Loomer, Turner, Reid, Duncan & Loomer, Springfield, for defendant-respondent.

Appellant's Motion for Rehearing and for Transfer Denied September 26, 1980.

MAUS, Judge.

In this personal injury action one defendant (the appellant) settled with the minor plaintiff taking a general release. By his first amended cross-claim, the appellant seeks to recover from the other defendant (the respondent) all or part of the amount paid by the appellant as consideration for the release. The trial court sustained the respondent's motion to dismiss the cross-claim. The appellant (settling defendant) has appealed, basing his right to recover upon the authority of Missouri Pac. R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978); hereafter referred to as Whitehead and Kales.

By her petition, the minor plaintiff alleged that she was riding in a southbound motor vehicle driven by the respondent's decedent when a northbound motor vehicle driven by the appellant collided with the vehicle in which she was riding. In one paragraph she charged the respondent's decedent with 11 acts of negligence, including driving on the wrong side of the road and humanitarian negligence. In a succeeding paragraph, she charged the appellant with identical acts of negligence. She then alleged that as a result of the negligence of the respondent's decedent and the appellant "and each of them", she was seriously injured and prayed judgments against the defendants and each of them. Each defendant filed a general denial. The appellant then filed a cross-claim against the respondent. This cross-claim made reference to the parties and alleged that if both the appellant and respondent were found to be liable to the plaintiff, the respondent would be liable to the appellant "by way of contribution" for such part of the judgment as the jury may determine to have resulted from the negligence of the respondent. The cross-claim prayed for judgment in accordance with those allegations.

Subsequently, the plaintiff dismissed as to the respondent. The plaintiff's guardian then obtained judicial approval of a settlement of the plaintiff's claim "with defendant Thomas E. McClure" and a judgment for the amount of the settlement was entered against McClure, the appellant. The judgment of approval authorized the guardian to acknowledge satisfaction of the monetary judgment and to execute "an appropriate release". Upon the basis that the cross-claim was still pending, counsel for the respondent participated in the settlement hearing and established the intent of the settlement was to release all claims of the plaintiff, including her claim against the respondent. The guardian did acknowledge satisfaction of the monetary judgment and executed a release discharging the appellant and all others from liability by reason of the accident in question.¹

The appellant then filed a first amended cross-claim against the respondent. This first amended cross-claim made general reference to the accident, incorporating the plaintiff's petition by reference and then made reference to the original cross-claim. It then alleged that the appellant entered into negotiations for the settlement of the plaintiff's claim; that the respondent declined to participate in those negotiations; and that those negotiations were successful and the plaintiff's claim was settled for a fair and reasonable amount. The first amended cross-claim then recited the judicial approval of the settlement and satisfaction of the monetary judgment and incorporated by reference the petition for approval, the judgment of approval and the release. It then alleged the respondent was negligent in the 11 respects that had been asserted in the plaintiff's petition. The first amended cross-claim then charged that the plaintiff's injuries were the "direct and proximate result of the negligence of Fred T. Killian". It then concluded that the appellant was entitled to contribution from the respondent "for all or such part, portion or percentage of the amount paid to Kimberly Stephenson as corresponded to the part, portion or percentage of fault for the collision in question as the jury may determine to have resulted from an act or omission by Fred T. Killian." The first amended cross-claim prayed for judgment in accordance with the latter allegations. The respondent filed a motion to dismiss the first amended cross-claim, citing four reasons why that motion failed to state a cause of action. The trial court sustained the motion without specifying the basis for its decision. The appellant did not seek to further amend his cross-claim.

In very general terms this appeal concerns the right of one party who has satisfied the claim of a third party to seek indemnity or contribution from another party. The terms "indemnity" and "contribution" are often used interchangeably. However, perhaps it is more appropriate to use the term "indemnity" in referring to a claim for 100 per cent reimbursement and the term "contribution" in referring to a claim for partial reimbursement.² Claims for indemnity or contribution may be distinguished upon many bases, for example, whether or not the claim arises from contract or whether or not the claimant has been subjected to vicarious liability. An important distinction is whether or not the claimant was in fact liable for the obligation that he satisfied. The general subject is covered under Topic III, Chapter III, Restatement of Restitution. The point of this discussion is to emphasize the fact that there are distinctions between the various types of claims for indemnity and/or contribution and to accord recognition to the fact that the prerequisites for the successful assertion of such a claim may vary according to the type of claim asserted. Therefore, it is necessary to carefully define and limit the issue to be decided in this case.

In his brief the appellant states: "The issue presented on appeal concerns the rights and liabilities between a settling tortfeasor and a non-settling tortfeasor for equitable indemnity under the rule announced by the Missouri Supreme Court in Missouri Pacific Railroad Co. v. Whitehead and Kales, 566 S.W.2d 466 (Mo. banc 1978)." The appellant has four "points relied on". Each point is prefaced by the following: "That the trial court erred in granting respondent's motion to dismiss, . . . for the reasons that said cross-claim is authorized by virtue of the Missouri Supreme Court ruling in Mo. Pacific v. Whitehead and Kales . . .". With that preface, in consecutive points appellant asserts that each of respondent's reasons one, two, three and four was not a proper basis for dismissal of the first amended cross-claim. As the issue has been clearly defined, it is not the duty, and indeed it would be improper, for this court to assume the position of an advocate and to search for any other theory upon which the cross-claim could be maintained.³ Accordingly, this case will be decided upon the basis of whether or not the first amended cross-claim states a cause of action under the doctrine enunciated in Whitehead and Kales.

Whitehead and Kales introduced a fundamental change in Missouri law.⁴ In very general terms, that case upon the "principle of fairness", established the doctrine of non-contractual indemnity or contribution upon the basis of relative fault between or among joint tortfeasors.⁵ While this concept is an innovation in Missouri, the general doctrine is not novel in the jurisprudence of this country. It has been adopted in one form or another by decision or by legislation in numerous states.⁶ Since the doctrine, whether established by decision or by statute, is based upon the principle of fairness, the statutes and decisions of these other states may be looked to for guidance in the implementation of the doctrine of Whitehead and Kales.⁷

The respondent's first contentions are based upon the proposition that the doctrine of Whitehead and Kales does not extend a right of contribution to a joint tortfeasor who discharges a claim by settlement rather than after his liability has been established by judgment. It is true that in Whitehead and Kales the liability of the tortfeasor claiming contribution had been established by judgment. However, that case does not restrict the application of the doctrine to those circumstances. An argument, most compelling to those accustomed to the individualism of the past practice, is that one tortfeasor should not be permitted by his own action to involve another alleged tortfeasor in a settlement.⁸ But, the fundamental right of the non-settling alleged joint tortfeasor to contest his liability and the extent of the plaintiff's damages can be preserved. They are preserved under rules which have been summarized as follows:

Unless the statute granting a right of contribution requires it, one of several tortfeasors who have incurred a common liability need not wait until the injured person obtains a judgment against him or a joint judgment against him and his cotortfeasors, or even until suit is brought, but he may in good faith enter into a compromise with the injured person and satisfy the entire liability on the basis of the amount so fixed, without assuming the character of a volunteer or endangering his right to contribution. A joint tortfeasor thus called upon to

...