White v. Johnson
| Decision Date | 08 October 1965 |
| Docket Number | No. 39644,39644 |
| Parties | Alfred E. WHITE, and Eva White, Respondents, v. Roy Edwin JOHNSON, Defendant and Third-party Plaintiff, Appellant, CITY OF SAINT PAUL, Third-Party Defendant, Respondent. Mary Lou URMAN, Respondent, v. Alfred E. WHITE, Respondent, Roy E. Johnson, et al., Defendants and Third-Party Plaintiffs, Appellants, City of Saint Paul, Third-Party Defendant, Respondent. |
| Court | Minnesota Supreme Court |
1. Under Minn.St.1961, § 465.09, repealed by the 1963 Tort Liability Act and incorporated into L.1963, c. 798, § 5 (Minn.St.466.05), a notice of claim of loss or injury based upon negligence was a prerequisite to maintaining a third-party claim for contribution or indemnity against a municipality.
2. Drawing all inferences in favor of the party against whom summary judgment is moved, defendant and third-party plaintiff may, upon trial of the facts, be able to prove a claim for indemnity against third-party defendant city if his sole negligence lay in failing to discover the negligence of the city.
3. Despite the absence of notice of claim against the city by plaintiffs, at the time the action arose there existed a common liability between defendant and third-party plaintiff and the city so that he has a substantive claim for contribution against the city.
4. A defendant-third-party plaintiff may preserve a derivative claim against a municipality for either contribution or indemnity by his own adequate statutory notice.
Finley & Finley, St. Paul, for appellants.
D. D. Wozniak, St. Paul, for Whites.
Stephen L. Maxwell, City Atty., Thomas J. Stearns, Asst. City Atty., St. Paul, for City of Saint Paul.
Robins, Davis & Lyons, St. Paul, for Urman.
Douglass, Sheets & Bell, St. Paul, for Alfred White.
Appeal from summary judgments dismissing third-party complaints against the city of St. Paul interposed by Roy E. Johnson after actions were brought against him by Mary Lou Urman, Alfred E. White, and his wife, Eva White. 1
The actions arose out of a three-car collision which occurred during the early morning hours of April 7, 1962, upon Warner Road in the city of St. Paul. A truck driven by Mr. Johnson collided head-on with an automobile driven by Mr. White in which his wife was a passenger, and thereupon the White car veered from its lane of travel and collided with an automobile driven by Mary Lou Urman. Three separate actions claiming damages for personal injuries were commenced against Johnson. Thereafter, he served third-party complaints in each action upon the city alleging that the city 'negligently maintained, controlled, and operated' the highway and praying for judgment against the city 'for all sums that may be adjudged against' him.
The third-party actions were instituted under a written notice of claim, which Johnson served upon the city on May 8, 1962, and supplemented on May 24, 1962. In neither notice did he expressly claim damages for injuries suffered by anyone except himself. His notices identified the time, place, and circumstances of the accident and asserted that the city was negligent in the manner in which it 'painted the dividing lines on the pavement to separate the various lanes of traffic' and because of inadequate 'warning signs'; that he suffered personal injuries, 'the extent of which have not yet been determined,' and property damage to his automobile of $750 as a result of such negligence; and that he therefore 'makes claim against the City * * * for the damages which have resulted and will result in the future as a result of the accident.' None of the plaintiffs who brought action against Johnson served notice of claim against the city.
After the pleadings were closed, the actions were consolidated for trial upon separate motions of both the city and Johnson. Thereafter the city moved for summary judgment on the ground that none of the plaintiffs served a notice of claim for damages as required by Minn.St.1961, § 465.09, and that since the 'City cannot be liable to said plaintiffs directly * * * (it) cannot be liable in contribution or indemnity to (Johnson).' The court granted the motion and this appeal is taken from the several judgments entered.
An examination of the motion for summary judgment and supporting affidavits indicates that the narrow issue presented to the trial court was whether a third-party claim for contribution or indemnity may be preserved against a municipality by giving sufficient statutory notice notwithstanding the absence of any notice by the plaintiffs.
The motion did not raise the issues of the timeliness of the notice, whether the time, place, and circumstances were sufficiently detailed, or whether the notice sufficiently described the nature of Johnson's derivative claims. Presumably these issues, if they exist, will be litigated later if the court erred in granting the city's motion for summary judgment.
1. Although there are decisions in other states holding that actions for contribution or indemnity may be maintained against a municipality despite noncompliance with statutory provisions requiring prior notice or presentation of claims against a municipality, 2 we have held that the failure to give timely notice as required by our notice of claim statute, Minn.St.1961, § 465.09, precluded an action for indemnity against a municipality. American Auto. Ins. Co. v. City of Minneapolis, 259 Minn. 294, 107 N.W.2d 320. In that case the insurance company made a settlement of an action against its insured property owner for damages sustained by a person injured in a fall at a point where a private ramp met a defective city sidewalk. The injured party did not give notice of a claim against the city and neither did the property owner or its insurance company until after the settlement was made, some 3 years after the injury occurred. We held that the action involved a claim for injury based on negligence not contract, and that the failure to give notice within 30 days of injury as required by § 465.09 3 'prevented any liability on the part of the city from existing.' 259 Minn. 298, 107 N.W.2d 323. This result was necessarily based upon our conclusion that the wording of the statute applicable to this case is broad and inclusive and that notice is a prerequisite to maintaining an action for indemnity or contribution against a municipality even though such a claim is contingent at the time notice is required to be served. The opinion left open the question, however, whether the action could have been maintained had timely notice been given.
The present statute, broadened in scope to cover liability for torts, but requiring substantially the same notice, is Minn.St. 466.05 (L.1963, c. 798, § 5).
2. Before reaching the ultimate question, whether the notice statute permits a defendant in an action to preserve his third-party claims by giving notice himself, the nature of those claims must be examined. Under his third-party complaint, Johnson would be entitled to prove that the city owed him recovery for either contribution or indemnity. Upon the record before us, the facts are not sufficiently revealed to determine whether either claim in fact exists; thus, we can only determine whether a claim for contribution or indemnity or both might possibly be proved upon trial and, if so, whether either claim or both can be preserved against the city by the notice given.
Indemnity and contribution are both remedies based on equitable principles to secure restitution to one who has paid more than his just share of a liability. They contemplate different measures of recovery, for indemnity secures entire reimbursement and contribution requires equal sharing. Disregarding those situations where a right to indemnity stems from contract, or because one party is only vicariously liable, or because one party followed the directions of another, whether indemnity or contribution possibly lies in this case depends on the conduct of the two wrongdoers and the relative culpability of their actions. 4
It has been held that a right to indemnity lies when the indemnitee has become liable to a plaintiff only because the indemnitee was negligent in failing to discover a condition created by the negligence of another. 5 In that situation it is said that the indemnitor committed the primary negligence, the indemnitee only secondary negligence, and that therefore the indemnitor must bear the entire amount of plaintiff's recovery. Although we are unable to make any judgment as to whether such a situation exists here, the facts in the record can be expanded to support such a claim if it is shown that Johnson's sole negligence lay in failing to discover the double set of dividing lines, and that the manner in which the city 'painted the dividing lines on the pavement' and its inadequate 'warning signs' was negligence on the part of the city.
Drawing all inferences in favor of the party against whom summary judgment is moved, we are compelled to conclude that Johnson may be able to make out a claim for indemnity. On the further assumption that the notice given was timely and sufficient to apprise the city of his derivative claim for indemnity, this alone precluded granting summary judgment and it was error to do so.
3. But, depending on the facts proved, it is quite likely that Johnson may only be able to make out a claim for contribution. This will occur if it is established that the city's negligence concurrently rather than primarily caused the accident. This conclusion leads us to the most difficult question, which will undoubtedly confront the trial court on remand, namely, whether a defendant may maintain a claim for contribution against a municipality absent notice by the injured plaintiff.
We are met at the outset by the principle that a personal defense by one joint tortfeasor against the injured plaintiff is good against a claim for...
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