Thyssen Elevator Co. v. Drayton-Bryan Co.

• Decision Date: 30 June 2000
• Docket Number: No. 400CV002.,400CV002.
• Citation: 106 F.Supp.2d 1342
• Parties: THYSSEN ELEVATOR COMPANY d/b/a Dover Elevator Company, Plaintiff, v. DRAYTON-BRYAN COMPANY, A Partnership, Defendant.
• Court: U.S. District Court — Southern District of Georgia

106 F.Supp.2d 1342

THYSSEN ELEVATOR COMPANY d/b/a Dover Elevator Company, Plaintiff, v. DRAYTON-BRYAN COMPANY, A Partnership, Defendant.

No. 400CV002.

United States District Court, S.D. Georgia, Savannah Division.

June 30, 2000.

COPYRIGHT MATERIAL OMITTED

A. Martin Kent, Kent, Thomas, Worsham & Smart, Savannah, GA, for Dover Elevator Co., plaintiff.

Frank W. Seiler, D. Michael Conner, Bouhan, Williams & Levy, Savannah, GA, for Drayton-Bryan Co., defendant.

A. Martin Kent, Kent, Thomas, Worsham & Smart, Savannah, GA, for Dover Elevator Co., counter-defendant.

ORDER

EDENFIELD, District Judge.

I. BACKGROUND

In 1996, the then recently dissolved law firm of Adams, Gardner, Ellis & Inglesby, P.C. (Adams) employed Elizabeth Roberts — the firm's former office manager — to help it wind up its affairs. Doc. # 25 ¶¶ 3-6;¹ # 32 at 12-13. Alone inside the firm's building on a Friday afternoon, she died while attempting to escape from its elevator, which had stopped between floors. Doc. # 25 ¶¶ 5-10. Defendant Drayton-Bryan Company (DB) owned the building, and Adams was DB's tenant. Id. ¶ 4.

Roberts's husband subsequently brought a State court wrongful-death action (individually and as executor of Mrs. Roberts's estate) against Thyssen Elevator Company, d/b/a Dover Elevator Company (Dover), the elevator repair company that had serviced the elevator 16 days before Roberts's death. Id. ¶¶ 2, 11; doc. # 18 at 4; # 34 App. A. He also sued Adams, but not DB. Id.

Dover third-partied DB, but that "action was severed from the first trial by agreement of counsel." Doc. # 18 at 4. After Dover and Adams settled with Mr. Roberts, Dover brought this action to recover contribution from DB for half of the $633,333.33 it paid to him (Adams, incidentally, paid him $366,666.66). Doc. # 25 ¶ 2; # 28 App. A ¶¶ 18-19. DB responded with an indemnification counterclaim for its defense costs in both actions. Doc. # 12 at 4-6.

DB now moves for summary judgment on the theory that Mrs. Roberts assumed the risk of her own injury, thus absolving DB of any joint tortfeasor liability.² Doc. # 19. DB also moves for partial summary judgment "on [Dover's] theory that [DB] is vicariously liable for contribution." Doc. # 21. And, it moves for partial summary judgment "on any claim that [DB] is liable for merely passive negligence." Doc. # 23.

Dover opposes those motions, doc. 30-31, and moves for summary judgment against DB. Doc. # 32. At Dover's request, see doc. # 29, the Court heard oral argument on 6/13/00. There both sides agreed that this is an atypical case that in no small part turns on subtle distinctions between contribution and indemnification law.

II. ANALYSIS

A. Contribution & Indemnification

"With respect to actions in federal courts, it is well established that, for the purposes of rights founded on state statutes and for the purposes of the Erie doctrine, the right of a joint tortfeasor to contribution from his cotortfeasors is a matter of substantive law which, in diversity suits, is controlled by state, and not federal, law." 18 AM.JUR.2D Contribution §§ 58-59.

As noted in Greyhound Lines, Inc. v. Cobb County, Ga., 681 F.2d 1327 (11th Cir.1982), Georgia contribution law can be confusing, id. at 1332-33, in part because courts sometimes indiscriminately mix the terms "indemnification" and "contribution" without pausing to precisely define them. Contribution

refers to apportioning damages between joint tortfeasors by requiring each to pay his proportionate share, while indemnity implies a shifting of the entire loss from the party who paid the judgment to the tortfeasor who should in fairness bear it. The distinction is often blurred.

Id. at 1332 n. 7 (emphasis added); see also Jones v. Otis Elevator Co., 861 F.2d 655, 664 n. 15 (11th Cir.1988) ("A successful claim for indemnification shifts the entire burden of loss to the active tortfeasor and is governed by common law. In contrast, contribution merely apportions damages among tortfeasors and is governed by statute"). Contribution also requires a showing of common, "in pari delicto" (i.e., equally at fault) level liability, while indemnification does not.³

Another source of confusion stems from the use of active and passive negligence concepts in indemnification law. An elevator service company's act of negligently maintaining an elevator can constitute active negligence, while a building owner's failure to discover a dangerous condition created by that company can constitute passive negligence. Jones, 861 F.2d at 664.

In that regard, a building owner cannot delegate (e.g., to an elevator service company) its duty to maintain elevators with respect to third parties. Id. at 665. In other words, the owner will remain liable to an injured plaintiff.⁴ But it nevertheless can recover in indemnity from a service company whose negligent maintenance proximately caused the third party's injuries. Jones, 861 F.2d at 665.

Indemnity was not an option in the past. Id. at 664 ("Generally, under Georgia law, a joint tortfeasor is not permitted to maintain an action for indemnity against another tortfeasor") (emphasis added). But courts made an exception "where a joint tortfeasor's liability arose from negative action or omission [hence, passive negligence], such as failure to inspect, and the other tortfeasor's active, positive acts proximately caused the plaintiff's injuries." Id.

"In short, Georgia law at the turn of the century allowed indemnification based on the active/passive negligence dichotomy and contribution based upon the [Georgia] code provisions." Greyhound, 681 F.2d at 1332. But Georgia courts also created confusion by "occasionally merg[ing] the active/passive negligence rule into one which seemed to cover both indemnification and contribution." Id. (emphasis added).

Georgia's 1966-enacted contribution statute, O.C.G.A. § 51-12-32⁵ (amended in 1972 and 1987, see § 51-12-32(c)), cleared up some of the confusion by "abrogat[ing] the common law rules regarding contribution in Georgia," Greyhound, 681 F.2d at 1333 (emphasis added), thus making contribution easier to obtain.

The new code section, for example, eliminated the requirement that a joint tortfeasor must have sustained a judgment against him before he can be pursued for contribution. Now "a [joint] tortfeasor who pays a judgment enjoys a right of contribution against [all] other joint tortfeasors. O.C.G.A. § 51-12-32(a)." Crawford v. Johnson, 227 Ga.App. 548, 549, 489 S.E.2d 552 (1997).

Stated differently, a joint tortfeasor who settles with a plaintiff can pursue other co-tortfeasors in contribution, even where no judgment has been entered against any of the tortfeasors. State Line Metals, Inc. v. Aluminum Co. of Am., 216 Ga.App. 14, 15 n. 1, 453 S.E.2d 474 (1995) ("Contribution is a right afforded a joint tortfeasor and is not affected by any settlement between plaintiff and another joint tortfeasor").

And, a joint tortfeasor need not even implead another in order to seek contribution from him. See State Farm Fire & Cas. Co. v. Am. Hardware Mut. Ins. Co., 224 Ga.App. 789, 794, 482 S.E.2d 714 (1997) (Tort defendants' failure to file cross-claims against each other for indemnity did not preclude filing of such claims after tort action was dismissed with prejudice upon settlement).⁶

In practice, then, a plaintiff can elect not to sue a joint tortfeasor, but the tortfeasor she does sue may, by third-party complaint or by separate action, pursue the "un-sued" tortfeasor for contribution, even after the sued tortfeasor settles with the plaintiff. See Marchman, 251 Ga. at 478, 306 S.E.2d 290.⁷ However, "[t]his does not mean the plaintiff in the contribution suit is relieved of the necessity [of proving] the defendant was a joint tortfeasor." Id. at 477 n. 4, 306 S.E.2d 290.

In that respect, Georgia courts no longer distinguish between active and passive negligence in contribution actions. Greyhound, 681 F.2d at 1333 ("The Georgia cases which correctly analyze the contribution issue without reference to the active/passive negligence theories are legion").

To summarize, a passively negligent building owner can pursue indemnification from an actively negligent elevator service company — if his contract with the service company,⁸ or the common law (indemnity is an equitable doctrine, see 41 AM.JUR.2D § 3), supports his claim. Jones, 861 F.2d at 665; see also Fromer, 50 F.Supp.2d at 240; 41 AM.JUR.2D § 29. But an actively negligent owner cannot pursue equitable (i.e., non-contract based) indemnification from an actively (or, for that matter, a passively) negligent actor:

Generally, where joint tortfeasors have both been actively or affirmatively negligent in contributing to an injury, neither is entitled to indemnity from the other; there is no indemnity between active tortfeasors. For example, an elevator company could not recover on its third-party claim for common law indemnity arising out of a wrongful death action brought on behalf of a hotel employee who fell down an empty elevator shaft to his death, since the elevator company was actively negligent.

41 AM.JUR.2D § 28 ("Both parties actively negligent") (footnote omitted); see also Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560, 272 S.E.2d 251 (1980) ("if the negligence of the tortfeasor is passive as opposed to active, a tortfeasor can seek indemnity against a party whose conduct is alleged to be the proximate cause of the injury") (emphasis added); Gilbert v. CSX Transp., 197 Ga.App. 29, 32, 397 S.E.2d 447 (1990); Peacock Const. Co. v. Montgomery Elevator Co., 121 Ga.App. 711, 713, 175 S.E.2d 116 (1970).

In contrast, any negligent tortfeasor can pursue another negligent tortfeasor in contribution, regardless of whether each other's negligence is active or passive, since Georgia courts have abandoned the active/passive negligence distinction here. See Greyhound, 681 F.2d at 1333 ("Greyhound's active negligence does not bar its contribution...