Opinion
400CV002
July 14, 2000
ORDER
I. INTRODUCTION
In its 6/30/00 Order, the Court resolved the summary judgment motions filed by plaintiff Thyssen Elevator Company, d/b/a Dover Elevator Company (Dover), as well as defendant Drayton-Bryan Company, a Partnership (DB), in this contribution/indemnity case. Doc. #36. The Court's 7/2/00 Order addressed follow-up issues. Doc. #46. Familiarity with those Orders and background facts to this case is assumed.
II. ANALYSIS
A. DB's Indemnification Claim
Previously, the Court held that the jury shall be presented with Dover's contribution claim first and DB's indemnification claim second. Doc. #36 at 9-10. Under Dover's contribution theory, it must show that DB's negligence, solely or concurrently with that of Dover, Adams and Elizabeth Roberts (or any combination thereof), proximately caused her death. Id. at 8.
If Dover's contribution claim fails (i.e., the jury finds that Roberts assumed the risk or, if she did not, then DB's negligence played no part in it), then the jury would turn to DB's indemnification claim, since it will by definition have found DB not negligent (hence, not even passively negligent) while confronting Dover's admission of negligence. Id. at 9-10. The jury would then resolve whether Dover's negligence, solely or concurrently with that of Adams and Elizabeth Roberts (or any combination thereof), proximately caused her death. Upon so finding, the jury would then consider awarding DB the reasonable defense costs it seeks. See doc. #36 at 9-10.
DB's indemnification claim is limited to "the costs and expenses incurred by [DB] in investigation and defense of claims arising from and related to the death of Elizabeth Roberts[.]" Doc. #12 at 6 (Counterclaim relief).
Dover then moved to bifurcate the trial to avoid jury confusion, etc. Doc. #41. In reaching that motion, the Court tracked its 6/30/00 order's reasoning that the jury would have to consider Dover's contribution claim first and DB's indemnification claim second:
DB nevertheless enjoys a recovery possibility. If the jury finds that Dover is not entitled to contribution (hence, that no negligence on DB's part proximately caused Mrs. Roberts's death), but also finds that Dover's negligence proximately caused Mrs. Roberts's death, then DB's indemnification claim will rise to fill that just-evacuated legal space.
Doc. #36 at 9.
In a subsequent passage, however, the Court erred by employing the following (italicized) language:
DB, then, can not simply tender attorney fee and other defense-cost evidence on its indemnification claim. Instead, it must prove, by a preponderance of the evidence, that (a) it at most was passively negligent; (b) Dover's active negligence proximately caused Roberts's death; and (c) it incurred reasonable defense costs. Dover's bifurcation motion (doc. #41) therefore must be denied.
Doc. #46 at 2 (emphasis added).
The italicized phrase constitutes legal error because, by this point in the trial, the jury will have already found against Dover on its contribution claim. By definition, then, it will have found that no DB negligence, solely or concurrently with the negligence of Dover, Adams or Roberts, proximately caused Roberts's death. That means that, to pursue its indemnification claim, DB would not have to prove that it at most was passively negligent, only that Dover's negligence proximately caused Roberts's death plus its defense costs.
The Court therefore amends Part B ¶ 4 of its 7/12/00 Order by vacating it in its entirety and replacing it with the following:
DB, then, can not simply tender attorney fee and other defense-cost evidence on its indemnification claim. Instead, it must prove, by a preponderance of the evidence, that (a) Dover's admitted negligence, solely or concurrently with that of Adams and Elizabeth Roberts (or any combination thereof), proximately caused her death; and (b) DB incurred reasonable defense costs. Dover's bifurcation motion (doc. #41) therefore must be denied.
B. Jury Interrogatories/Bifurcation
The Court has considered the parties' proposed special interrogatories and has crafted a "middle ground" set attached hereto. The parties shall file any objections by 5:00 p.m. Friday, 7/14/00. In that respect, the Court has reconsidered Dover's bifurcation motion (doc. #41) to this extent: the Court will conduct a separate, "indemnification damages" trial phase (assuming, of course, that the jury responds "YES" to interrogatory #4 of the Special Interrogatories) and employ the second, Special Interrogatory for that purpose.
III. CONCLUSION
The Court's 7/12/00 Order (doc. #46) is AMENDED as set forth herein. The parties shall file any objections to the Court's proposed special jury interrogatories by 5:00 p.m. Friday, 7/14/00. Upon sua sponte reconsideration, Dover's bifurcation motion (doc. #41) is GRANTED to the extent set forth above.
SPECIAL INTERROGATORIES
1. Did Elizabeth Roberts assume the risk of her death?
___ Yes ___ No (Please check one)
If your answer is YES, skip all of the remaining questions, have your Foreperson sign and date below, then contact the Marshall. If your answer is NO, proceed to question 2.
2. Did Drayton-Bryan violate its duty of care (and thus, was it negligent) toward Elizabeth Roberts?
___ Yes ___ No (Please check one)
If your answer is YES, proceed to question 3. If your answer is NO, skip to question 4.
3. Did Drayton-Bryan's negligence, solely or concurrently with that of Dover, Adams and Elizabeth Roberts (or any combination thereof), proximately cause her death?
___ Yes ___ No (Please check one)
If your answer is YES, skip question 4 and instead have your Foreperson sign and date below, then contact the Marshall. If your answer is NO, proceed to question 4.
4. Did Dover's admitted negligence, solely or concurrently with that of Adams and Elizabeth Roberts (or any combination thereof), proximately cause her death?
___ Yes ___ No (Please check one)
After selecting your answer, have your Foreperson sign and date below, then contact the Marshall.
This ___ day of July, 2000. ______________________________ FOREPERSON
SPECIAL INTERROGATORY
What reasonable attorney fees and costs do you award Drayton-Byran? $ ____
This ___ day of July, 2000. ______________________________ FOREPERSON