Chapter 18: Contribution

§18.1 Generally

The Case: General Electric Co. v. Process Control Co. , 969 S.W.2d 914 (Tenn. 1998).

The Basic Facts: Huskey, a Wisconsin resident, was hurt in Tennessee by a product. He brought a products liability against GE, the manufacturer of the product, in Wisconsin. GE argued at trial that Process Controls negligently modified the subject product. Huskey won the case. The jury was not permitted to assess fault against Process Controls. GE then sued Process Controls in Tennessee seeking contribution.

The Bottom Line:

  • "McIntyre v. Balentine, [833 S.W.2d 52 (Tenn. 1992)], did not 'completely abolish the remedy of contribution.' Bervoets v. Harde Ralls Pontiac-Olds, Inc., [891 S.W.2d 905, 907 (Tenn. 1994)]. Contribution may still be viable in the following limited circumstances:
    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, Owens v. Truckstops of America, [915 S.W.2d 420 (Tenn. 1996)]; Bervoets v. Harde Ralls Pontiac-Olds, Inc., [891 S.W.2d 905 (Tenn. 1994)];
    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, Resolution Trust Corp. v. Block, [924 S.W.2d 354 (Tenn. 1996)]; Camper v. Minor, [915 S.W.2d 437 (Tenn. 1996)]; Owens v. Truckstops of Amer., [915 S.W.2d 420 (Tenn. 1996)], or
    3. in the 'appropriate case' in which 'fairness demands,' see Owens, 915 S.W.2d at 430 (allowing contribution when 'fairness demands'); Bervoets, 891 S.W.2d at 907 (recognizing contribution in the 'appropriate case')."
    969 S.W.2d at 916.
  • "The third circumstance, however, is not a broad 'catch-all' provision that defeats the fundamental concepts of our comparative fault law. The circumstance under which 'fairness demands' should be applicable only when failure to allow contribution would impose an injustice." Id.
  • "The case now before us was brought by the Huskeys and litigated in Wisconsin. Pursuant to Wisconsin law in effect at the time of the Huskeys' suit, contributory negligence did not bar a plaintiff's recovery unless a plaintiff's negligence was greater than that of the defendant. Wis. Stat. § 895.045 (1994). Under Wisconsin Law, a plaintiff's negligence was compared to each defendant's negligence separately, and the primary liability of the defendants was joint and several. Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Constr. Corp., [291 N.W.2d 825 (Wis. 1980)]. Contribution among defendants, however, was based on comparative negligence principles. Brandner v. Allstate Ins. Co., [512 N.W.2d 753 (Wis. 1994)]." Id.
  • "Process Control was apparently not subject to personal jurisdiction in the Huskeys' Wisconsin suit. The Wisconsin jury assessed fault against the defendants pursuant to Wisconsin's law of comparative fault. Process Control was not a party before the Wisconsin jury and, therefore, did not have fault assessed against it. We decline to speculate whether G.E. should or could have removed the Huskeys' personal injury suit to a Wisconsin federal court and then attempt to have the case transferred to a federal court in Tennessee. We believe that fairness demands an action for contribution based upon the following factors: (1) the Huskeys' claim was litigated pursuant to Wisconsin law; (2) Process Control may have been a tortfeasor contributing to Huskey's injuries but was not subject to personal jurisdiction in the Huskeys' suit; and (3) G.E. was jointly and severally liable under Wisconsin law to the Huskeys for any damages or fault assigned by the jury to other tortfeasors". Id. at 916-17.

Other Sources of Note : Smith v. Methodist Hospitals of Memphis, 995 S.W.2d 584 (Tenn. Ct. App. 1999) (contribution denied).

§18.2 Actions Against the State of Tennessee

The Case: Northland Ins. Co. v. State , 33 S.W.3d 727 (Tenn. 2000).

The Basic Facts: Northland's insured negligently caused the death of one man and injuries to two others. Northland made payments to the family of the decedent and to the two injured persons and then sought indemnity and contribution from the State of Tennessee, alleging that its negligence caused or contributed to cause the death and injuries.

The Bottom Line:

  • "Article I, section 17 of the Tennessee Constitution provides that '[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.' This constitutional provision reflects sovereign immunity, the notion that a sovereign governmental entity cannot be sued in its own courts without its consent. See State v. Cook, [106 S.W.2d 858, 860 (Tenn. 1937)]; Tenn. Code Ann. § 20-13-102 ('No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state...with a view to reach the state, its treasury, funds, or property...'). As a general interpretive matter, this Court has held that the principle of sovereign immunity requires that legislation authorizing suits against the state must provide for the state's consent in 'plain, clear, and unmistakable' terms. Cook, [106 S.W.2d at 861]; see also Beare Company v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986). We must therefore carefully analyze the statute granting jurisdiction to the Tennessee Claims Commission, which this Court has previously held creates a 'sweeping procedure for filing monetary claims against the state.' Hembree v. State, 925 S.W.2d 513, 516 (Tenn. 1996)." 33 S.W.3d at 729.
  • "That statute, Tennessee Code Annotated section 9-8-307, begins by stating that the Commission has 'exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of [state employees] falling within one (1) or more of the following categories...' Tenn. Code Ann. § 9-8-307(a)(1). One such category, which applies here, is '[d]angerous conditions on state maintained highways.' Tenn. Code Ann. § 9-8-307(a)(1)(J). To maintain a suit based on this category, the claimant 'must establish the foreseeability of the risk and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.' Tenn. Code Ann. § 9-8-307(a)(1)(J). Also of relevance to this dispute is the following directive: 'It is the intent of the general assembly that the jurisdiction of the claims commission be liberally construed to implement the remedial purposes of this legislation.' Tenn. Code Ann. § 9-8-307(a)(3)." Id.
  • "We find that the Commission does not have subject matter jurisdiction to hear contribution and indemnity claims. The statute's liberal construction mandate allows a court to more broadly and expansively interpret the concepts and provisions within its text. For instance, in Hembree v. State this Court was presented with the question of how to interpret one of the jurisdictional categories listed in section 9-8-307, specifically, the category allowing suits against the state involving 'negligent care, custody and control of persons.' Hembree, 925 S.W.2d at 516 (interpreting the provision that is now codified at 9-8-307(a)(1)(E)). The state contended that a claim for 'negligent release' of a patient from a state controlled mental health institute did not fall into this category. Id. The Court disagreed, holding that 'care, custody and control' jurisdiction should be read to cover the state's decision to release a patient from custody. Id. at 517-18. Hembree illustrates that the jurisdictional categories in section 9-8-307 should not be interpreted narrowly. A liberal construction of an existing category, however, is a different proposition than a construction creating a new category." Id. at 730.
  • "Northland argues that contribution and indemnity claims are intimately related to the underlying tort suit which, in this case, the Commission would have had subject matter jurisdiction to hear. Thus, the category of 'dangerous highway condition' may be read to include Northland's claim against the State; no new jurisdictional category need be created. While contribution and indemnity claims are, of course, linked to the underlying tort, they are separate and independent remedies under Tennessee law. See Butler v. Trentham, [458 S.W.2d 13, 15 (Tenn. 1970)] ('[W]here [contribution] is allowed between joint tortfeasors, it does not sound in and is not based on tort. It rests rather on principles of equity and natural justice.'); Uniform Contribution Among Tort-Feasors Act, Tenn. Code Ann. § 29-11-101, et seq. (providing a contribution remedy that is distinct from the underlying tort remedy). A plaintiff's suit against an alleged tortfeasor seeks redress for harm caused by that tortfeasor, in this case because of the tortfeasor's negligence. Contribution and indemnity, however, are remedies a party seeks after having been found liable for tortious conduct, designed to recover all or part of the loss from another responsible party. See Owens v. Truckstops of America, 915 S.W.2d 420, 433 (Tenn. 1996) ('[C]ontribution shifts part of the loss from one party to another [and] traditional implied indemnity shifts the entire loss from the party found liable to a party who should bear the entire loss.').FN1 Thus, although Northland's desired contribution suit against the State is related to Mr. Sheppard's, Mr. McGuire's and the estate of Mr. Deskovic's suit against Mr. McDonald and Walnut, Inc., the two suits are nonetheless distinct.
    FN1 To avoid confusion, we note that the contribution and indemnity claims at issue in this case were initiated prior to our decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). However, because of our resolution o f the jurisdictional issue presented here, it is unnecessary for us to determine how comparative fault principles affect the availability of contribution and indemnity in this case."
    Id . at 730-31.
  • "Recognition that contribution and indemnity claims are not merely expansions of the underlying tort suit on which they are based, but rather different remedies which exist for different purposes, resolves this dispute. As noted, legislation authorizing suits against the state must provide for the state's consent in 'plain, clear, and unmistakable' terms. Cook, [106 S.W.2d at 861]. No such clarity is present in section 9-8-307. A decision from this Court interpreting this statute to include Northland's claim within the Commission's subject matter jurisdiction would be tantamount to judicially creating a waiver of sovereign immunity to which the State has not actually consented. We decline to adopt this interpretation and therefore affirm the Court of Appeals." Id. at 731.

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.

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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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