Tigges v. City of Ames, 83-469

Decision Date17 October 1984
Docket NumberNo. 83-469,83-469
Citation356 N.W.2d 503
PartiesCarroll TIGGES, As Administrator of the Estate of Roger D. Tigges, Deceased, Appellee, v. CITY OF AMES, A Municipal Corporation, Appellant, and Wayne W. Nathem, Appellee. and CITY OF AMES, A Municipal Corporation, Appellant, v. WAYNE'S EXCAVATING, JoAnn E. Nathem, Wayne W. Nathem and Wayne's Excavating, Ltd., Appellees.
CourtIowa Supreme Court

Stephen M. Terrill of Maurer & Terrill, Ames, and Robert G. Allbee, L.W. Rosebrook and Richard W. Hoffmann of Ahlers, Cooney, Dorweiler, Haynie & Smith, Des Moines, for appellant.

Max E. Kirk and William C. Ball of Ball, Kirk & Holm, Waterloo, for appellee Administrator.

John B. Grier of Cartwright, Druker & Ryden, Marshalltown, for appellees Nathems and Wayne's Excavating.

Considered en banc.

SCHULTZ, Justice.

In the summer of 1978 Roger D. Tigges, an employee of Wayne's Excavating, was killed in a tragic accident caused by a cave-in at a sewer construction project in the city of Ames. The administrator of Tigges' estate brought a wrongful death action against the City of Ames and Tigges' supervisor on the work project, Wayne Nathem (Wayne), charging the City with negligence and Wayne with gross negligence. The construction contract with Wayne's Excavating was executed solely by JoAnn E. Nathem. Joann E. Nathem and Wayne are husband and wife, and Wayne was the general foreman on the construction project. Wayne maintains Wayne's Excavating is a partnership, and he and JoAnn are partners. Wayne, as an alleged partner, challenged the subject matter jurisdiction of the district court claiming that the industrial commissioner had exclusive jurisdiction. On the subject matter jurisdiction question, both plaintiff and the City deny the existence of the partnership and maintain Wayne's status is that of an employee.

Relying on its written contract with Wayne's Excavating for construction of the sewer, the City filed a third-party petition against Wayne's Excavating, JoAnn E. Nathem, Wayne, and Wayne's Excavating, Ltd. Contrary to its position on the issue of subject matter jurisdiction, the City alleged that the third-party defendants were general partners in a partnership known as Wayne's Excavating and also claimed Wayne's Excavating, Ltd., was a successor in interest to the partnership. Without deciding any issue and only for the sake of brevity when discussing the third-party action, we shall refer to the third-party defendants as the contractor.

This third-party petition was dismissed upon motion; however, the City filed a second third-party petition against the contractor which survived a motion for summary judgment and raised issues which were submitted at trial. Following a jury trial the trial court entered a judgment in favor of the administrator against the City for $93,000 and dismissed the third-party petition.

Trial commenced on January 25, 1983, shortly after our adoption of comparative negligence in Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982). The pleadings and jury instructions were amended to submit the case under comparative negligence principles, and the jury rendered a verdict in the form of answers to special verdicts rather than a general verdict. The jury apportioned the fault of all of the parties as follows: Decedent--7 percent ordinary negligence; City of Ames--8 percent ordinary negligence; Wayne--57 percent gross negligence; and Wayne's Excavating--28 percent ordinary negligence. The jury found that the estate was damaged in the amount of $100,000. The court submitted Wayne's requested instruction, although not in the same form, on the factual issue of whether Wayne was a partner in Wayne's Excavating. In answer to this question, the jury responded by indicating "no."

A few days later the trial court entered a judgment order. Upon determining that the jury did not include Wayne's individual negligence in assessing the negligence of Wayne's Excavating, the court totaled the two amounts and determined that Wayne's Excavating was responsible for a total of 85 percent of the fault. The trial court also refused to accept the jury's special determination that Wayne was not a partner, although it acknowledged there was ample evidence in the record to sustain the finding of the jury. As a partner in Wayne's Excavating, Ltd., the court determined that Wayne was an employer of the decedent and that the court lacked subject matter jurisdiction over him in a suit by an employee pursuant to Iowa Code section 85.20 and under our holding in Iowa Power & Light Co. v. Abild Construction Co., 259 Iowa 314, 144 N.W.2d 303 (1966). In entering judgment against the City the court reduced plaintiff's damages 7 percent, the amount of decedent's negligence, and entered judgment against the City for $93,000. Finally, the court dismissed the City's cross-petition against the contractor for indemnity.

On appeal the City places in issue the correctness of the dismissal of both of its third-party petitions and the holding that Wayne was a partner rather than a fellow employee. Plaintiff also cross-appeals on this latter issue and takes the same position as the City. Other issues raised by the City have been conceded following our recent decisions in Rozevink v. Faris, 342 N.W.2d 845 (Iowa 1983), and Thompson v. Stearns Chemical Corp., 345 N.W.2d 131 (Iowa 1984). The pretrial dismissal of the first third-party petition contains different issues than the dismissal of the second third-party petition in the trial court's final holding. Consequently, we shall address these issues in separate divisions.

I. First third-party petition. During the pretrial stage of the wrongful death action the City brought a third-party action against the contractor claiming that it had a right to indemnity under the terms of the parties' construction contract. The City relied upon the contract clause which specifically provided that the contractor would indemnify the City "from any liability ... arising out of or resulting from the contractor's operations under this contract." The City alleged that the plaintiff's cause of action against it arose out of the contractor's operation under the contract and prayed for indemnity for any and all damages that might be awarded to plaintiff.

The district court, David R. Hansen, Judge, dismissed the City's action holding that the plaintiff's petition against the City was grounded on the City's own negligence and that the agreement did not include a right of indemnity for such negligence or wrongdoing. On appeal the City concedes that under the terms of the contract it is not entitled to indemnity for its own 8 percent of the fault; however, it insists that it should be indemnified by the contractor in an amount measured by the contractor's own negligence. Consequently, we need not consider the validity of a claim for full indemnity. The contractor urges that the issue of partial indemnity may not be raised for the first time on appeal and claimed Judge Hansen never was presented with a claim or a theory of recovery for indemnity for that part of the judgment against the City which was attributed to the contractor's negligence. The City, on the other hand, claims the district court erroneously missed the issue of its claim for partial indemnity.

We first address the issue of preservation of error by turning to the pleadings and the proceedings before the court. Our examination of the City's petition does not provide a definite answer to the issue of whether partial indemnity was before the district court. The petition makes no reference to partial indemnity or to a claim based on the contractor's percentage of fault. We recognize, however, that under notice pleading, Iowa Rule of Civil Procedure 69, the pleader is not required to set out specific theories of recovery; the petition only need apprise the opposing party of the incident giving rise to the claim and of the general nature of the action. Soike v. Evan Matthews & Co., 302 N.W.2d 841, 842 (Iowa 1981). This does not mean that a party may not be limited to a specific theory of recovery when he limits his pleadings to certain exclusive theories. Here, the prayer for relief indicated that the City was seeking a judgment for full, rather than partial, indemnity when it prayed for a judgment indemnity "for any and all judgment damages that may be awarded to plaintiff against the City of Ames." We find it unnecessary to solve the thorny question whether the prayer eliminated the issue of partial recovery because we believe the parties omitted this issue when stating their position to the district court.

There comes a time in an action governed by notice pleading when the true nature of the action must be identified and the issues narrowed. Generally, this either occurs at the pretrial conference, Kester v. Bruns, 326 N.W.2d 279, 284 (Iowa 1982), or during the trial before instruction, see Soike, 302 N.W.2d at 843. In the case at hand, we conclude that the City's theory of recovery came into focus through the City's written resistance to the motion to dismiss.

The contractor's motion to dismiss was grounded on the proposition that the indemnification clause did not protect the City from its own acts of negligence. In its written resistance to the motion, the City asserted that six out of eight claims of negligence against the City were based on the contractor's acts; thus, "any negligence of the City would have to be based upon the negligence of the contractor's performance, i.e., imputed to the City for which indemnity would lie." Imputed negligence is the negligence of one person which is chargeable to another because of a relationship between the parties, e.g., the negligence of an agent within the scope of his employment is chargeable to the principal. Black's Law Dictionary 683 (rev. 5th ed. 1979). Thus, the City claimed that the indemnity clause protected it whenever the contractor's negligence could be charged to the City due...

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