§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.