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§33.A2 Right of Indemnity between Negligent Tortfeasor and Intentional Tortfeasor

Author’s Note: The Court did not rule that there was a right to indemnification but only that there was a right to seek indemnification.  The decision is included in this book because it is the only case addressing the issue.

The Case:  Lindsey v. Walgreen Co., No. E2010-00244-COA-R9-CV, 2010 WL 4671007 (Tenn. Ct. App. Nov. 18, 2010).

The Basic Facts:  Plaintiff brought a wrongful death lawsuit on behalf of person shot and killed by Defendant Stackhouse in Walgreen’s parking lot.  Walgreen then sought to make a cross-claim against Defendant Stackhouse under an indemnity theory.  The motion was denied by the trial court, and an interlocutory appeal followed.

The Bottom Line:


·         “[O]ur Supreme Court has instructed:


[W]e conclude that where the intentional actor and the negligent actor are both named defendants and each are found to be responsible for the plaintiff’s injuries, then each defendant will be jointly and severally responsible for the plaintiff’s total damages.


*         *         *


Although our adoption of comparative fault abrogated the use of the doctrine of joint and several liability in those cases where the defendants are charged with separate, independent acts of negligence, see McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992), the doctrine continues to be an integral part of the law in certain limited instances.  See Owens v. Truckstops of Am., 915 S.W.2d 420, 431 n.13, 432 (applying joint and several liability to parties in the chain of distribution of a product when the theory of recovery is strict liability); see also Resolution Trust Corp. v. Block, 924 S.W.2d 354, 3555-6 (Tenn. 1996) (holding the officer and director jointly and severally liable to the corporation for their collective actions). We believe that in the context of a negligent defendant failing to prevent foreseeable intentional conduct, the joint liability rule ‘is a very reasonable and just rule of law which compels each to assume and bear the responsibility of the misconduct of all.’ Resolution Trust Corp., 924 S.W.2d at 356; Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 87 (Tenn. 2001).”


2010 WL 4671007 at *2-3.


·         “Plaintiff alleges that Walgreen and Cortney were negligent in failing to prevent the foreseeable intentional conduct of Stackhouse. As joint and several liability has not been abolished in cases ‘where the intentional actor and the negligent actor are both named defendants and each are found to be responsible for the plaintiff’s injuries,’ we find that Walgreen and Cortney are not precluded from potentially seeking indemnification from Stackhouse.” Id. at *3.

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.

The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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