Wagner v. Beech Aircraft Corp., 10107-2-I
| Decision Date | 02 April 1984 |
| Docket Number | No. 10107-2-I,10107-2-I |
| Parties | Steve WAGNER, Plaintiff, v. BEECH AIRCRAFT CORPORATION, Defendant, Flightcraft, Inc., Appellant, and Gross Aviation, Respondent. Dorothy WALTHERS, individually, and as Administratrix of the Estate of David R. Walthers, Deceased, Respondent, v. FLIGHTCRAFT, INC.; and Marvel-Schebler Corporation, a Division of Borg-Warner Corporation, Appellants, and Beech Aircraft Corporation, Defendant. John P. KALBRENER, Plaintiff, v. GROSS AVIATION, INC.; The Estate of David Walthers; John Doe Gross and Jane Doe Gross, husband and wife, Respondents, The Marvel-Schebler Corporation; and Flightcraft, Inc., Appellants, and Lycoming Engine Corporation, Defendant. |
| Court | Washington Court of Appeals |
Karr, Tuttle, Koch, Campbell, Mawer & Morrow, P.S., Philip Talmadge, F. Lee Campbell, David D. Swartling, Seattle, for Marvel-Schebler, Tillotson.
Gordon R. Tobin, Seattle, for Wagner.
Charles E. Peery, Seattle, for Estate of Walthers.
Oles, Morrison, Rinker, Stanislaw & Ashbaugh, Michele M. Sales, Theodore L. Preg, Seth W. Morrison, Seattle, for Flightcraft.
Waitt, Johnson & Martens, Richard L. Martens, Robert K. Waitt, Seattle, for Gross Aviation, Mr. & Mrs. Gross, & Estate Walthers.
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In these consolidated cases, Marvel-Schebler/Tillotson and Flightcraft, Inc. appeal a judgment entered in favor of Gross Aviation, Inc., Mr. and Mrs. Charles Gross, and the Estate of David Walthers 1 on indemnity claims arising from the crash of a single engine aircraft. This case is a sequel to Wagner v. Flightcraft, Inc., 31 Wash.App. 558, 643 P.2d 906 (1982). The details of the crash, the consequent claims of the parties, and the disposition of those claims by the court and jury are included in that opinion.
It is sufficient to say here that the trial of the main action resulted in dismissal of Gross Aviation and substantial verdicts against Flightcraft and Marvel-Schebler. Pursuant to agreement of the parties, the trial judge then
considered the claims of indemnity and made the following findings of fact and conclusions of law:
FINDINGS OF FACT
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3.
Based upon the jury's verdict, the Court finds that Marvel-Schebler/Tillotson was not negligent, but that the carburetor was not reasonably safe, which condition was a proximate cause of the damages sustained by the plaintiffs.
4.
Based upon the jury's verdict, the Court finds that Flightcraft, Inc. was negligent and that it furnished a carburetor that was not reasonably safe, and that this conduct was a proximate cause of damages to the plaintiffs.
5.
The wrongful conduct of Marvel-Schebler/Tillotson and Flightcraft, Inc., as described in Paragraphs and above, resulted in the involvement of Gross Aviation, Inc., Mr. and Mrs. Charles Gross, and the Estate of David R. Walthers, in this litigation as defendants. Plaintiffs Kalbrener, Wagner, and Walthers were not connected with the supplying of the subject carburetor.
6.
Defendants Gross, et al. tendered the defense of the action to both Flightcraft, Inc. and Marvel-Schebler/Tillotson. The tenders of defense were rejected by these two defendants.
7.
During the course of the trial of the main action, the Court ruled that there was insufficient evidence to submit to the jury the question of the conduct of David R. Walthers as it related to this accident. David Walthers was an agent of Gross Aviation for purposes of this lawsuit. The Court finds in this proceeding, based upon the evidence admitted in the principal action and the offers of proof of the defendants, which were not admitted in the principal action, that there was no evidence of active misconduct or negligence on the part of David Walthers.
8.
The Court finds that a representative of the defendants Gross, et al. obtained the carburetor in question as well as the spark plugs for the subject aircraft from the NTSB after the accident and delivered these components to Green Valley Aviation, the salvage yard, without instructions for their disposition. Thereafter, the spark plugs and the carburetor were unavailable or could not be located, except for the top half of the housing of the carburetor.
9.
Representatives of Marvel-Schebler/Tillotson and Flightcraft, Inc. were not present at any time during the NTSB investigation. Their investigation of the facts and circumstances of the accident began after the litigation was commenced, and when they attempted to locate parts of the airplane the spark plugs were lost and the carburetor was missing, except for the top half of the housing.
10.
The Court finds that the unavailability of the total carburetor and the spark plugs did hamper the defense of Flightcraft, Inc. and Marvel-Schebler/Tillotson. However, these defendants did have many detailed photographs of the carburetor and other components for use prior to and at trial, which were utilized for the presentation of their evidence and testimony. There was no conduct on the part of Gross Aviation or its agents which should defeat a claim for indemnity.
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CONCLUSIONS OF LAW
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2.
Defendants Gross, et al. are entitled to judgment against Flightcraft, Inc. and Marvel-Schebler/Tillotson for attorneys fees and costs in the amount of $91,158.43. The insurers for Gross, et al., Aviation Office of America/Aviation Adjustment Bureau, Inc. advanced and paid all attorneys fees and costs herein, and based upon the concurrence of defendants Gross, et al., as indicated by their attorney, judgment will be entered in favor of their insurer, Aviation Office of America/Aviation Adjustment Bureau, Inc.
Judgment was entered in favor of Gross Aviation and against Marvel-Schebler and Flightcraft in the amount of $91,158.43. However, Flightcraft was awarded a setoff for certain judgments previously entered against Gross Aviation Inc. Marvel-Schebler and Flightcraft appeal from this judgment.
Both Marvel-Schebler and Flightcraft have assigned error to pertinent portions of the trial court's findings of fact and conclusions of law. Basically these assignments of error all relate to the propriety of the judgment ordering indemnity of Gross Aviation by the appellants, Marvel-Schebler and Flightcraft.
We hold that the trial court's findings of fact and conclusions of law were supported by substantial evidence and we affirm the judgment.
Initially we observe that the main action was heard before the effective date of RCW 4.22.040, which provides for a right of contribution among persons jointly and severably liable for the same harm. The statute does not apply. Glass v. Stahl Specialty Co., 97 Wash.2d 880, 652 P.2d 948 (1982).
Appellants argue that Gross Aviation was actively negligent and that its negligence contributed to the accident, which bars any indemnification since there is no right to indemnification among joint tortfeasors. This is the common law rule. Rufener v. Scott, 46 Wash.2d 240, 242-43, 280 P.2d 253 (1955). Appellants base their argument upon certain language of this court in Wagner v. Flightcraft, Inc., supra, wherein this court concluded that there was substantial evidence of pilot error. Appellants contend the trial court in the indemnity proceeding erred when it found "that there was no evidence of active misconduct or negligence on the part of David Walthers." Appellants misconstrue the import of the conclusion of this court as to pilot error. First, in making its findings of fact the trial court had the benefit of all the evidence in the main action, including that contained in the offers of proof when it concluded that there was no evidence of pilot error. It was not within the province of this court to weigh the evidence and it made no attempt to do so. Second, the jury found both appellants strictly liable, but only Flightcraft was found negligent.
Flightcraft contends that the trial court erred in finding it negligent and strictly liable. However, "[a] right, a question, or a fact, put in issue and determined by a court of competent jurisdiction as a ground of recovery, cannot again be disputed in a subsequent suit between the same parties or their privies." Rufener v. Scott, supra at 243, 280 P.2d 253; Wilber v. Western Properties, 22 Wash.App. 458, 465, 589 P.2d 1273 (1979).
In this case a jury found Flightcraft negligent and strictly liable for its overhaul of the airplane carburetor. On appeal, this court in Wagner ruled that the jury could have found Flightcraft strictly liable. Wagner v. Flightcraft Inc., supra 31 Wash.App. at 566, 643 P.2d 906. The matter of Flightcraft's strict liability has been decided and cannot now be relitigated. Rufener v. Scott, supra. By so holding, it becomes unnecessary to determine whether Gross Aviation was also negligent.
Even if we were to agree that Gross Aviation was negligent and that its negligence was primary or active, that alone would not defeat its claim for indemnity. Both appellants were found strictly liable for manufacturing or supplying a defective carburetor. Any negligence of Gross Aviation unrelated to its unreasonable use of the defective carburetor would not be a bar to indemnity. In Northwestern Mutual Ins. Co. v. Stromme, 4 Wash.App. 85, 88-89, 479 P.2d 554 (1971), the court held that the doctrine of strict liability would not change the existing law pertaining to indemnity among joint tortfeasors. That case, however, was decided before the Supreme Court ruled that comparative negligence was not a defense in an action based upon strict liability. See Seay v. Chrysler Corp., 93 Wash.2d 319, 322-23, 609 P.2d 1382, 9 A.L.R. (4th) 625 (1980).
To be consistent we now decide that indemnification is appropriate in strict liability actions even where an indemnitee might be considered actively negligent. As stated in 3A L. Frumer & M. Friedman, Products Liability § 44.02 at 15-13 (1983):
[T]he active-passive negligence distinction as a test for allowing indemnity would...
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