"Indemnity allows one who has discharged a common liability to seek reimbursement in full from another." Herstam v. Deloitte Touche, LLP, 186 Ariz. 110, 118, 919 P.2d 1381, 1389 (Az.Ct.App. 1996) (emphasis in original) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts ยง 51, at 341 (5th ed. 1984)). "[I]ndemnity is an all or nothing proposition damage-wise, and hence should be an all or nothing proposition fault-wise."
We also note that in enacting our statute, our legislature did not adopt section 9 of the UCATA, which would have instructed us to construe it in conformance with other states' interpretations. ยถ 21 Finally, the appellees argue that their position is directly supported by our recent decision in Herstam v. Deloitte Touche, LLP, 186 Ariz. 110, 919 P.2d 1381 (App. 1996). We disagree.
"Indemnity allows one who has discharged a common liability to seek reimbursement in full from another" and is "'an all or nothing proposition damage-wise, and hence should be an all or nothing proposition fault-wise.'" Herstam v. Deloitte & Touche, LLP, 919 P.2d 1381, 1388-89 (Ariz. Ct. App. 1996) (quoting Transcon Lines v. Barnes, 498 P.2d 502, 509 (Ariz. 1972)). "It permits one defendant to shift the entire loss to one who more justly deserves it."
Under the common law doctrine of joint and several liability, two or more tortfeasors who caused an indivisible harm were each liable for the full amount of plaintiff's damages. Herstam v. Deloitte Touche, LLP, 186 Ariz. 110, 113-15, 919 P.2d 1381, 1384-86 (App. 1996); see Roland v. Bernstein, 171 Ariz. 96, 97, 828 P.2d 1237, 1238 (App. 1991). A tortfeasor who satisfied plaintiff's claim could not seek contribution from other tortfeasors.
GM notes that Count II states, "GM's second claim for relief is a request for relief based on common law principles of equity." GM cites Herstam et al. v. Deloitte Touche LLP et al., 186 Ariz. 110, 117-18 (App. 1996) for the proposition that Arizona courts recognize various forms of indemnity. It argues that Maritz's motion is based on the false premise that there are only two forms of indemnity, express contractual indemnity and a catch-all category of "common law indemnity." GM continues that a claim for equitable indemnity referred to by GM is not precluded by the existence of an express contractual indemnity provision.
Whether this matters under Arizona law is unclear. In Herstam v. Deloitte & Touche, LLP , 186 Ariz. 110, 919 P.2d 1381 (Ct. App. 1996), the court observed that "[i]ndemnity allows one who has discharged a common liability to seek reimbursement in full from another," but it did not define "common liability" or otherwise address whether coextensive liability is a necessary prerequisite for equitable indemnity. Id . at 1388.
Hatch Dev., LLC v. Solomon, 377 P.3d 368, 374 (Ariz.Ct.App. 2016) (citing Herstam v. Deloitte & Touche, LLP, 919 P.2d 1381, 1388- 89 (Ariz.Ct.App. 1996)). Defendant alleges that LCI is liable for Plaintiff's alleged damages as the general contractor on the construction project and SkySpy is liable for Plaintiff's alleged damages as Plaintiff's direct contractor.
KnightBrook asserts that ยง 76 of the Restatement speaks to a duty that is "common" and does not require that all of the parties' putative liabilities be identical. Id. at 6 (citing Herstam v. Deloitte & Touche , 186 Ariz. 110, 919 P.2d 1381, 1388 (Ariz. Ct. App. 1996) ("Indemnity allows one who has discharged a common liability to seek reimbursement from another." (emphasis in original) ) ).
It permits one defendant to shift the entire loss to one who more justly deserves it.Herstam v. Deloitte & Touche, LLP, 919 P.2d 1381, 1388-89 (Ariz. Ct. App. 1996) (alteration, internal quotation marks, and citations omitted); see also In re Allstate Life Ins. Co. Litig., Nos. CV-09-8162-PCT-GMS, CV-09-8174-PCT-GMS, 2011 WL 5826006, at *6 (D. Ariz. Nov. 18, 2011) (same). Count One does not seek full recovery of the expenses Plaintiffs incurred in defending against the Avoidance Claims.
See Zuckerman v. Transamerica Ins. Co., 650 P.2d 441, 446 (Ariz. 1982); Herstam v. Deloitte & Touche, LLP, 919 P.2d 1381, 1386 (Ariz. Ct. App. 1996). Further, parties to a standardized contract generally are bound by its terms.