Sweet v. Herman Bros., Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: KENNEDY
• Citation: Sweet v. Herman Bros., Inc., 688 S.W.2d 31 (Mo. App. 1985)
• Decision Date: 26 February 1985
• Docket Number: No. WD,WD
• Parties: Prod.Liab.Rep. (CCH) P 10,697 David SWEET and Colleen Sweet, Respondents, v. HERMAN BROTHERS, INC., and Fruehauf Corporation, Appellants, Herzog Contracting Corporation, Respondent. 35927.

Page 31

688 S.W.2d 31

Prod.Liab.Rep. (CCH) P 10,697

David SWEET and Colleen Sweet, Respondents, v. HERMAN BROTHERS, INC., and Fruehauf Corporation, Appellants Herzog Contracting Corporation, Respondent.

No. WD 35927.

Missouri Court of Appeals Western District.

Feb. 26, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

April 2, 1985.

Application to Transfer Denied

April 30, 1985.

John K. Thomas, St. Joseph, for appellant Herman Bros., Inc.

George A. Barton, Kansas City, for Fruehauf Corporation.

Richard A. Heider, St. Joseph, for respondents Sweet.

Jeffrey B. Davison, St. Joseph, for Herzog Contracting Corp.

Before KENNEDY, P.J., and DIXON and LOWENSTEIN, JJ.

KENNEDY, Presiding Judge.

Plaintiff David Sweet was an employee of Herzog Contracting Corporation on September 10, 1981 when he sustained burns from a spill of hot asphalt as he was unloading a tanker truck. He received workers' compensation benefits from Herzog or its insurer. The present action for damages is brought by Sweet and his wife against the owner of the tanker truck, Herman Brothers, Inc., and the manufacturer thereof, Fruehauf Corporation. The plaintiffs' petition alleges that a valve on the tanker truck was defective and unreasonably dangerous and that such defect caused Sweet's injuries.

Herman Brothers and Fruehauf, pursuant to leave granted by the court, filed a third-party petition against Herzog, plaintiff David Sweet's employer, alleging that Sweet's injuries were caused in whole or in part by Herzog's negligence, and seeking contribution from Herzog for its proportionate contribution to the total causation of Sweet's injuries.

Later Herzog's motion to dismiss the third-party petition was granted. It is this order of dismissal that is now before us on appeal. The question presented is whether Herzog, under the workers' compensation immunity provision of § 287.120.1, RSMo 1978 is immune from suit for contribution, or if its negligence counts in any way under the comparative fault principles of Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), and under the provisions of the Uniform Comparative Fault Act which were adopted by the Supreme Court in that case.

Employer Herzog says the issue is settled by State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), which held that the employer's statutory immunity under section 287.120.1 shielded the employer from any liability for contribution under the apportionment of fault doctrine of Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978).

We think Herzog's position is correct and we affirm the trial court's judgment.

Maryland Heights, of course, preceded Gustafson v. Benda. It is the position of appellants Herman Brothers and Fruehauf that Gustafson v. Benda and the provisions of the Uniform Comparative Fault Act have introduced a new approach, and that section 287.120.1 does not any longer furnish an impenetrable shield protecting the workers' compensation employer from all liability for contribution if his fault contributes to the employee's injury. They suggest three different approaches, which are thus summarized in appellant's brief:

In Point I, appellants suggest that the liability of the defendants should be reduced in accordance with the relative degree of fault of the employer in causing the employee's injury, up to a maximum of the employer's subrogation interest in the employee's lawsuit against the defendants. To the extent the employer is found at fault in causing the employee's injuries, his subrogation interest would be reduced accordingly.

In Point II, defendants propose that they would be liable only for their respective percentages of fault, and that the employer be treated as a released party under § 6 of the Uniform Comparative Fault Act.

In Point III, defendants suggest that contribution be allowed against the employer.

As between the other tortfeasors and the employer, we do not see that Gustafson v. Benda has in any way changed the fundamental apportionment of fault principles announced by Whitehead & Kales, which were in effect at the time of the Maryland Heights decision. All the appealing arguments which Herman Brothers and Fruehauf make for one or the other of the three alternative positions urged upon us were just as relevant under Whitehead & Kales before Gustafson v. Benda as after the latter decision.

There is nothing about Gustafson v. Benda or the Uniform Comparative Fault Act which eliminates the principle that liability for contribution depends upon the existence of actionable negligence of the defendant toward the plaintiff. In the absence of actionable negligence toward the plaintiff, an alleged tortfeasor is not liable to other defendants for contribution. That is a fundamental principle of the apportionment of fault doctrine under Whitehead & Kales. Kendall v. Sears, Roebuck & Co., 634 S.W.2d 176, 179 (Mo. banc 1982); Safeway Stores v. City of Raytown, 633 S.W.2d 727, 730 (Mo. banc 1982); Missouri Pacific Railroad v. Whitehead & Kales Co., 566 S.W.2d at 468. And see, for an intelligent discussion of the principle, Downie v. Kent Products, Inc., 420 Mich. 197, 362 N.W.2d 605 (1984). It remains a fundamental principle of the comparative fault system under Gustafson v. Benda. Section 4 of the Comparative Fault Act says: "(a) A right of contribution exists between or among two or more persons who...