Sydenstricker v. Unipunch Products, Inc.
Decision Date | 09 March 1982 |
Docket Number | No. CC923,CC923 |
Citation | 288 S.E.2d 511,169 W.Va. 440 |
Court | West Virginia Supreme Court |
Parties | John C. SYDENSTRICKER, et al., Plaintiffs, v. UNIPUNCH PRODUCTS, INC., et al., Defendants. UNIPUNCH PRODUCTS, INC., et al., Defendants and Third Party Plaintiffs, v. TERRELL TOOL AND DIE CORP., Third Party Defendant. |
Jenkins, Fenstermaker, Krieger, Kayes & Farrell and Michael J. Farrell, Huntington, for Unipunch, et al., defendants and third party plaintiffs.
Love, Wise, Robinson & Woodroe and John C. Palmer, IV, Charleston, for Niagara.
Jackson, Kelly, Holt & O'Farrell, Robert L. Elkins and Michael L. Minsker, Jackson, Kelly, Holt & O'Farrell, Charleston, for Terrell Tool, third party defendant.
1. Syllabus Point 2, Hill v. Joseph T. Ryerson & Son, Inc., W.Va., 268 S.E.2d 296 (1980).
2. Implied indemnity is based upon principles of equity and restitution and one must be without fault to obtain implied indemnity.
3. In a products liability case where the third party is the manufacturer, he is not accorded a right of implied indemnity against the employer because, having made a defective product, he is not fault free.
4. The doctrine of contribution has its roots in equitable principles. The right to contribution arises when persons having a common obligation, either in contract or tort, are sued on that obligation and one party is forced to pay more than his pro tanto share of the obligation. One of the essential differences between indemnity and contribution is that contribution does not permit a full recovery of all damages paid by the party seeking contribution. Recovery can only be obtained for the excess that such party has paid over his own share.
5. In Haynes v. City of Nitro, W.Va., 240 S.E.2d 544 (1977), we extended a right of contribution to a tortfeasor to bring in as a third-party defendant a fellow joint tortfeasor to share by way of contribution on the verdict recovered by the plaintiff.
6. Where the right of contribution is initially grounded in common liability in tort, courts have held that a joint tortfeasor employer is immune from a third-party contribution suit because he is initially immune from tort liability to his injured employee by virtue of the workmen's compensation statutory bar of such tort actions.
7. Where the Workmen's Compensation Act provides an express exception from immunity against suits by an employee in a tort area, it follows that a suit grounded on this exception would enable a third party to maintain an action in contribution.
8. The deliberate intent exception contained in W.Va.Code, 23-4-2, permits a defendant to bring a third-party action in contribution against the employer of the injured plaintiff.
We have accepted this certified question from the United States District Court for the Southern District of West Virginia pursuant to the provisions of W.Va.Code, 51-1A-1, et seq. 1 We consider in this question 2 whether a manufacturer, who has been sued by a plaintiff injured while using the manufacturer's product, may bring a third-party action against the injured plaintiff's employer. The manufacturer's third-party complaint alleges the employer by his "deliberate intent" rendered the manufacturer's product dangerous resulting in the plaintiff employee's injuries. The manufacturer seeks compensation from the employer based on a theory of implied indemnity and/or contribution. The employer contends that our workmen's compensation law precludes the third-party action.
The parties have stipulated to the following statement of facts as set out in the Certification Order:
We answer the certified question in the affirmative but because we have been presented only conclusory facts, we do not pass upon the evidentiary sufficiency of the third-party claims. We state in this opinion only an answer to the abstract certified question posed: "[Whether an employer under our Workmen's Compensation Act] may be held liable as a third-party defendant to such defendant manufacturers as third-party plaintiffs, upon the theory of contribution and/or implied indemnity based upon allegations in the third-party complaint that such employer was guilty of willful, wanton and reckless misconduct or intentional tort toward the plaintiff employee resulting in plaintiff employee's personal injuries?"
There are two basic types of indemnity: express indemnity, based on a written agreement, and implied indemnity, arising out of the relationship between the parties. One of the fundamental distinctions between express indemnity and implied indemnity is that an express indemnity agreement can provide the person having the benefit of the agreement, the indemnitee, indemnification even though the indemnitee is at fault. Such result is allowed because express indemnity agreements are based on contract principles. Courts have traditionally enforced indemnity contract rights so long as they are not unlawful. Sellers v. Owens-Illinois Glass Company, 156 W.Va. 87, 191 S.E.2d 166 (1972). See also Eastern Gas and Fuel Associates v. Midwest-Raleigh, Inc., 374 F.2d 451 (4th Cir. 1967), cert. denied, 389 U.S. 951, 88 S.Ct. 333, 19 L.Ed.2d 360; Eley v. Brunner-Lay Southern Corporation, Inc., 289 Ala. 120, 266 So.2d 276 (1972); City of Borough of Juneau v. Alaska Electric Light & Power Company, 622 P.2d 954 (Alaska 1981); Christy v. Menasha Corporation, 297 Minn. 334, 211 N.W.2d 773 (1973); Waggoner v. Oregon Automobile Insurance Co., 270 Or. 93, 526 P.2d 578 (1974); Di Lonardo v. Gilbane Building Company, 114 R.I. 469, 334 A.2d 422 (1975); Herchelroth v. Mahar, 36 Wis.2d 140, 153 N.W.2d 6 (1967). No claim of an express indemnity agreement is made in this case.
On the other hand, the concept of implied indemnity is based on equitable principles arising from the special nature of the relationship between the parties. In Syllabus Point 2 of Hill v. Joseph T. Ryerson & Son, Inc., W.Va., 268 S.E.2d 296 (1980), we stated in regard to implied indemnity:
We also explained in Hill that the person claiming implied indemnity in order to recover had to be without fault in regard to the incident that created the plaintiff's injuries. This is because a cause of action for implied indemnity rests on principles of restitution which permit a recovery against the indemnitor for all damages that the indemnitee has been required to pay to the injured party. We summarized this point in Hill as follows:
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