Personal Injury Law

Leading Tennessee Tort Cases - Comparative Fault - Indemnity

By John Day

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 15.23 Indemnity

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc, 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability. 

The Bottom Line: 

• 'Whereas contribution shifts only part of the loss from one party to another, traditional implied indemnity shifts the entire loss from the party found liable to a party who should bear the entire loss. 4 [American Law of Products Liability] at § 52.1. The law of indemnity may be applied where one party is held liable solely by imputation of law because of a relation to a wrongdoer. W. Page Keeton et al., [Prosser and Keeton on the Law of Torts], § 51, at 341-42 (5th ed. 1984). ‘Contracts of indemnification may be expressed, or an obligation to indemnify may arise by implication from the relationship of the parties . . . .' Houseboating Corp. of Am. v. Marshall, 553 S.W.2d 588, 589 (Tenn. 1977).' 915 S.W.2d at 433.

• 'The right of indemnity is not impaired by the Uniform Contribution Among Tort-Feasors Act. Section 29-11-102(f) provides:

This chapter does not impair any right of indemnity under existing law. Where one tort-feasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.

See also Continental Ins. Co. v. City of Knoxville, 488 S.W.2d 50, 52 (Tenn. 1972).' Id. at 434.

'However, indemnification which imposes the entire loss on one tortfeasor based on the imprecise distinction between active and passive negligence is inconsistent with the comparative fault principles adopted in McIntyre and subsequent decisions. Consequently, there can be no claim for indemnification based on active-passive negligence because that distinction is subsumed into the doctrine of comparative fault. While no longer determinative of the right to seek indemnity, the distinctions between the active and passive negligence may be factors to be weighed by the jury in assessing the percentage of fault of the parties. Schneider Nat'l Inc. v. Holland, 843 P.2d 561, 578-79 (Wyo. 1992). However, where implied indemnity is based on the legal relationship between the parties, the traditional principles of indemnity continue to apply.' Id. 

Other Sources of Note: General Elec. Co. v. Process Control Co., 969 S.W.2d 914, 916 (Tenn. 1998) (noting that contribution remains applicable in (1) cases in which prior to McIntyre, the cause of action arose, the suit was filed and the parties had made irrevocable litigation decisions based on pre-McIntyre law; (2) cases in which joint and several liability continues to apply under doctrines such as the family purpose doctrine, cases in which tortfeasors act in concert or collectively with one another, cases in which the doctrine of respondeat superior permits vicarious liability due to an agency-type relationship, or in the 'appropriate' products liability case; or (3) in the 'appropriate case' in which 'fairness demands.' (internal citations omitted).)

Full post as published by Day on Torts on September 29, 2010 (boomark / email).