Opinion
C.A. No. 99C-06-014 RRC
Submitted: July 10, 2002
Decided: October 10, 2002
UPON THE PARTIES' CROSS-MOTIONS TO "MOLD THE VERDICT." JUDGMENT ENTERED IN FAVOR OF THE MILLAR DEFENDANTS. ORDER
This 10th day of October, 2002, upon consideration of cross-motions to "Mold the Verdict" filed by Delle Donne Associates and DelMont Partners, L.P. on the one hand and Millar Elevator Service Company and Schindler Elevator Company on the other, it appears to this Court that:
1. Currently before the Court are two competing post-trial motions to "mold the verdict" that a jury returned in a trial, the thrust of which trial was to determine whether Delle Donne Associates and DelMont Partners, L.P. (collectively the "Delle Donne defendants") and/or Millar Elevator Service Company and Schindler Elevator Company (collectively the "Millar defendants") were liable for injuries sustained by Cheryl Wickes ("Wickes"). While the term "mold the verdict" does not appear to be a part of Delaware jurisprudence, the Court understands the procedural posture of this case to now implicate both Superior Court Civil Rules 49(a) and 58(2). For the reasons that follow, the Prothonotary is directed to enter judgment in favor of the Millar defendants as set forth below.
This rule provides in pertinent part that the Court "may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." Super.Ct.Civ.R. 49(a).
This rule provides that upon the rendering of a special verdict, "the Court shall promptly approve the form of the judgment and the Prothonotary shall thereupon enter it in the judgment docket." Super.Ct.Civ.R. 58(2). Cf. Breece v. Pettinaro Constr. Co., Inc., C.A. No. 00C-05-252 RRC, 2002 WL 31105332 (Del.Super. Sept. 17, 2002) (holding that recovery of attorneys' fees which were otherwise "reasonable" was not objectionable in third-party indemnity action simply because the requested fees included amounts both for defending against the underlying suit and simultaneously prosecuting the indemnity action, and observing that motions to "mold the verdict" were not a part of Delaware jurisprudence).
2. This matter began as a personal injury claim Wickes brought against the Delle Donne defendants, the Millar defendants, and Elevator Equipment Company, Inc. ("Elevator Equipment"). Wickes was injured while riding an elevator at her place of employment on July 30, 1997. Wickes alleged that the elevator "failed to operate properly causing a rapid acceleration followed by rapid deceleration."
Am. Compl. ¶ 7.
The Delle Donne defendants both owned (through DelMont Partners, L.P.) and managed (through Delle Donne Associates) the building in which Wickes was injured. The Millar defendants both installed (through Schindler Elevator Company) and maintained (through Millar Elevator Service Company) the elevator that Wickes was riding when she was injured. Elevator Equipment had manufactured some of the components contained within the elevator.
The Delle Donne defendants and the Millar defendants had entered into a "Custom Engineered Maintenance" agreement that became effective on September 1, 1992. The agreement was terminable by either party "at the end of . . . [a] . . . five-year period or at the end of any subsequent five-year period by giving the other party ninety (90) days prior written notice." Additionally, on October 1, 1992, the Delle Donne defendants and the Millar defendants entered into a separate "Maintenance Agreement" with an expiration date of September 30, 1995.
Millar Custom Engineered Service Agreement at 6 (Ex. "A" to Defs.' "Answer" to Def. Delle Donne's Mot.).
Both the "Custom Engineered Maintenance" agreement and the "Maintenance Agreement" contained clauses stating that the Millar defendants would indemnify the Delle Donne defendants in the event of injuries to third parties. The indemnification clause in the "Maintenance Agreement" provided that the Millar defendants would indemnify the Delle Donne defendants for any liability it may face because of the Millar defendants' own negligence. The pertinent part of the indemnification clause in the "Custom Engineered Maintenance" agreement provided that the Millar defendants as well as the Delle Donne defendants agreed "to indemnify and hold harmless the other from and against all claims, damages, losses and expenses, including reasonable attorneys' fees, resulting from bodily injury . . . to any person . . . to the extent caused by the negligent acts or omissions of the other . . . ."
Id. at 7.
In her suit, Wickes had sought recovery from both the Delle Donne and Millar defendants under a negligence theory, and she included a count against both under res ipsa loquitor. Wickes had proceeded against Elevator Equipment under theories of negligent design and/or manufacture, and breach of warranty.
After Wickes filed her Complaint, the Delle Donne defendants and the Millar defendants filed cross-claims against one another. The Delle Donne defendants contended that they were entitled to indemnification pursuant to the "Maintenance Agreement" that they had entered into with Millar. By contrast, the Millar defendants claimed that they were entitled to indemnification or contribution pursuant to Delaware's Uniform Contribution Among Tort-Feasors Law. Specifically, the Millar defendants pleaded that "in the event it is judicially determined that . . . [Wickes] is entitled to recover damages against . . . [the Millar defendants] . . ., then . . . [the Millar defendants] hereby demand judgment over and against . . . [the Delle Donne defendants] for contribution or indemnity and further demand that the relative degrees of fault be ascertained and utilized in affixing the amount of that liability in accordance with Delaware's Uniform Contribution Among Joint Tort-Feasors Law . . . ." Additionally, the Millar defendants pleaded that any contribution or indemnification that they were entitled to should include "all expenses in conducting the defense of this lawsuit including attorneys' fees."
DEL. CODE ANN. tit. 10, §§ 6301-6308 (1999).
Def. Millar's Cross-cl. ¶ 1.
Id. ¶ 3. The Millar defendants also pleaded as their "Thirteenth Affirmative Defense" to Wickes's complaint that "[t]o the extent there exists any contract governing the allegations of negligent conduct against Millar and to the extent the contract would inure to the benefit of Millar, Millar . . . pleads . . . the contractual provisions and avers that . . . the contract relieves Millar of any liability in this matter." Def. Millar's Answer to the Am. Compl. at 5.
All three groups of defendants (the Delle Donne, Millar, and Elevator Equipment defendants) eventually settled with Wickes before Wickes's suit went to trial.
By letter dated February 11, 2002, Elevator Equipment indicated to the Court that Wickes "ha[d] signed a joint tortfeasor release in favor of Elevator Equipment Company." The terms of the settlement agreement between Wickes and Elevator Equipment apparently had not been disclosed to any other party, either then or presently; likewise, the Court is unaware of the terms of that agreement.
Letter from Micahel K. Tighe, Esquire to the Court of 2/11/02, at 1.
The Delle Donne defendants settled with Wickes for $95,000 in November 2001. The release that they executed provided that it was "expressly intended and shall be construed to release and protect . . . [the Delle Donne defendants] from all claims of contribution pursuant to the Uniform Contribution Among Tortfeasors Law, 10 Del. C. § 6301-6308." The release further provided that "in order to save . . . [the Delle Donne defendants] harmless and as further consideration for the . . . [$95,000] payment . . . [Wickes] agree[s] to satisfy on behalf of . . . [the Delle Donne defendants] any decree, judgment or award against . . . [it] for any and all damages, in which there is such finding or adjudication involving . . . [the Delle Donne defendants], to the extent of . . . [the Delle Donne defendants'] liability to any other party for contribution and/or indemnity."
Release between Wickes and Delle Donne at 3 (Ex. "A" to Def. Delle Donne's Mot.).
Id.
The Millar defendants settled with Wickes after Wickes had settled with the Delle Donne defendants. Although a copy of the Millar defendants — Wickes release has not been provided, the Millar defendants have represented to the Court that they had settled with Wickes for $80,000. The Court does not know of the other terms of the release executed by Wickes in favor of the Millar defendants.
Def. Millar's "Answer" to Def. Delle Donne's Mot. at 2.
Following settlement between Wickes and all defendants, the Delle Donne defendants and the Millar defendants asserted against one another claims for indemnification and/or contribution in the amount of their individual settlements with Wickes. In their cross-claim, the Delle Donne defendants claimed that despite a term of October 1, 1992 through September 30, 1995, the "Maintenance Agreement" that they had entered into with the Millar defendants was still in effect at the time of Wickes's injury because no attempt to terminate the agreement had been made and both parties were still operating under that agreement's terms. Contrastingly, the Millar defendants contended that the "Maintenance Agreement" between them and the Delle Donne defendants had expired by the agreement's own terms, and that the "Custom Engineered Maintenance" agreement was instead the operative contract. Because the "Custom Engineered Maintenance" agreement required the Millar defendants only to indemnify the Delle Donne defendants for the Millar defendants' own negligence, the Millar defendants contended that a trial was necessary in order that a jury could determine whether the Millar defendants had in fact been negligent vis-~-vis Wickes.
The Delle Donne defendants then filed a motion for summary judgment in which they argued that, as a matter of law, the "Maintenance Agreement" entered into between them and the Millar defendants was in effect at the time of Wickes's injury, and that that agreement required the Millar defendants to defend and indemnify them in Wickes's personal injury suit. The Millar defendants responded that the "Custom Engineered Maintenance" agreement was the relevant contract, not the "Maintenance Agreement" the Delle Donne defendants were relying upon. In an oral ruling, the Court denied the Delle Donne defendants' motion "for all the reasons stated on the record," i.e., because there were material facts in dispute and because the Delle Donne defendants were not entitled to judgment as a matter of law.
See Def. Delle Donne's Mot. for Summ. J., Dkt. # 77.
See. Def. Millar's "Answer" to Def. Delle Donne's Mot. for Summ. J., Dkt. #112.
Wickes v. Delle Donne Assocs. et al, Del. Super., C.A. No. 99C-06-014, Cooch, J. (Nov. 5, 2001) (bench ruling).
Following the Court's denial of the Delle Donne defendants' motion for summary judgment, they and the Millar defendants prepared for trial. The Court entered a Pretrial Order that identified the following questions as issues of law that remained to be litigated at that time: 1) "Does Millar Elevator Service Company owe a duty to defend and indemnify DelMont Partners, L.P. and Delle Donne Associates for . . . [Wickes]'s claim?"; and 2) "Whether the Millar Custom Engineered Maintenance Agreement in effect on the date of the accident required [the] Millar [defendants] to defend or indemnify the defendants Delle Donne Associates or DelMont Partners, L.P." The same issues were identified in the Delle Donne defendants' Trial Brief, and in the Millar defendants' Response to the Trial Brief.
See Pretrial Order, Dkt. #133.
Id.
Dkt #139
Dkt #146
At trial, the jury was provided with nine interrogatories. Pursuant to the first six, the jury found that DelMont Partners, L.P., Delle Donne Associates, and Millar Elevator Service Company and Schindler Elevator Company were all negligent, and that the negligence of each of the three groups of defendants was a proximate cause of Wickes's injury. The jury apportioned negligence in the following percentages: DelMont Partners, L.P., 30%; Delle Donne Associates, 35%; and Millar Elevator Service Company and Schindler Elevator Company, 35%. The jury found that Wickes had sustained $900,000 in damages. The jury also found that the "Maintenance Agreement" entered between the Delle Donne defendants and the Millar defendants on October 1, 1992 (and continuing until September 30, 1995) was not in effect on the date of Wickes's injury on July 30, 1997.
3. In their Motion, the Delle Donne defendants contend that "the response of the jury to the interrogatories requires that the mutual claims for contribution and indemnity by [the] Delle Donne [defendants] . . . on the one hand and [the] Millar [defendants] on the other be denied." Because the Delle Donne defendants settled with Wickes before the Millar defendants did, the Delle Donne defendants rely upon title 10, section 6304(b) of the Delaware Code to support their argument. The Delle Donne defendants also argue that "[a]ny claim for indemnity, contribution or attorneys' fees made by Millar on the basis of its [`]Maintenance Agreement['] [entered between Delle Donne and Millar on October 1, 1992] must fail due to the ambiguity of that document." The Delle Donne defendants contend "Delaware law does not permit [the] Millar [defendants] to recover attorneys' fees . . . [because the jury found that the Millar defendants were in part liable for Wickes's injury]. Should the Court find the Delle Donne defendants liable to the Millar defendants for contribution, the Delle Donne defendants move the Court to enter an order requiring Wickes to satisfy that judgment.
Def. Delle Donne's Mot. ¶ 4.
"A release by the injured person of one joint tort-feasor does not relieve the one joint tort-feasor from liability to make contribution to another joint tort-feasor unless the release is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tort-feasor, of the injured person's damages recoverable against all the other tort-feasors." DEL. CODE ANN. tit. 10, § 6304(b) (2000 Supp.).
Def. Delle Donne's Mot. ¶ 11.
Id. ¶ 10.
The Delle Donne defendants cite the language in their release that states that Wickes "agree[s] to satisfy on behalf of . . . [the Delle Donne defendants] any decree, judgment or award against . . . [it] for any and all damages . . . to the extent of . . . [the Delle Donne defendant]'s liability to any other party for contribution and/or indemnity." Release between Wickes and Delle Donne at 3 (Ex. "A" to Def. Delle Donne's Mot.).
Additionally, the Delle Donne defendants argue that the Millar defendants have never relied on the "Custom Engineered Maintenance" agreement as the basis for any indemnification or contribution rights it may potentially have, and that the Millar defendants should be precluded from doing so now. The Delle Donne defendants argue that the theories that the Millar defendants have advanced regarding indemnification and contribution have been inconsistent throughout the course of this litigation, and that the Millar defendants "took the position throughout trial that indemnity or contribution could [not] be determined until the jury returned a verdict as to the amount of damages." The Delle Donne defendants contend that they do not owe contribution or indemnity to the Millar defendants "because the amount paid by [the] Millar [defendants] to settle the case, namely, $80,000, is less than the figure which results when the jury's verdict of $900,000 is multiplied by [the] Millar [defendant]'s thirty-five percent share of liability."
Def. Delle Donne's Reply in Supp. of its Mot. at 2.
Id.
By contrast, the Millar defendants argue that the jury's answers to the interrogatories support their claimed right to indemnification and to attorneys' fees. Specifically, the Millar defendants argue that because the jury determined that the "Maintenance Agreement" entered between Delle Donne and Millar on October 1, 1992 was not in effect on the date of Wickes's injury, "the contract in effect on the date of the accident was the Millar [`]Custom Engineered Maintenance['] [a]greement," which contract provides for indemnification and attorneys' fees. Although the Millar defendants apparently asserted in their cross-claim against the Delle Donne defendants that they were seeking recovery under Delaware's Uniform Contribution Among Tortfeasors Law, then in the Pretrial Order stated that an issue of law that then remained to be litigated was "[w]hether the Millar Custom Engineered Maintenance Agreement . . . required [the] Millar [defendants] to defend or indemnify the . . . [Delle Donne defendants]," the Millar defendants now unequivocally state that their "right to a judgment on its cross-claim . . . is based upon an indemnity provision within the . . . ["Custom Engineered Maintenance" agreement] . . . ." The Millar defendants argue that they are "entitled to recover $18,750.00 and litigation expenses including reasonable attorneys' fees" because the jury found the Delle Donne defendants to be 65% negligent and 65% of $175,000 (the total amount paid in settlement to Wickes) is $113,750 (yet the Delle Donne defendants paid $95,000), and the jury found the Millar defendants to be 35% negligent and 35% of $175,000 is $61,250 (yet the Millar defendants paid $80,000). The Millar defendants contend that the jury's determination of damages in the amount of $900,000 "establishes [that] the total amount [of $175,000 in settlement] was reasonable." With regard to the Delle Donne defendants' assertion that they are entitled to indemnification from Wickes, the Millar defendants respond that "a potential right to be indemnified . . . does not affect the [C]ourt's decision how to mold the verdict on the cross-claim for contractual indemnity which was the dispute between the parties submitted to the jury for decision."
Def. Millar's "Answer" to Def. Delle Donne's Mot. at 1.
See Pretrial Order, Dkt. #133.
Def. Millar's "Answer" to Def. Delle Donne's Mot. at 3.
Id. at 1.
Id. at 2.
Id.
In further response to the Delle Donne defendants' argument that their theories for indemnification and contribution recovery claim have been inconsistent throughout the course of this litigation, the Millar defendants state that they "ha[ve] always asserted that . . . [the] [`]Custom Engineered Maintenance['] [c]ontract was in effect on the date of accident and established the rights and liabilities between the parties . . . ." The Millar defendants contend that under a notice pleading system such as exists in Delaware courts, "the [Millar defendants'] answer to the [S]econd [A]mended [C]omplaint with cross-claim sufficiently pleaded a right to indemnity including reimbursement of expenses, attorneys' fees and costs[,]" or alternatively that "the pleading can be amended to conform to the evidence presented during trial." Regarding the necessity of trial on their cross-claim, the Millar defendants state that the indemnity provision of the "Custom Engineered Maintenance" agreement "could not be applied by the [C]ourt until factual issues had been resolved by the jury, including whether . . . [the Millar defendants were] found not negligent and therefore had paid a settlement to . . . [Wickes] as a volunteer. . . ." Finally, the Millar defendants contend that Delaware law permits "a proportional indemnity clause [to be] applied to the amount of a settlement reached by a defendant during trial based on the percentage of liability assessed by the jury verdict [including an award of attorneys' fees]," i.e., using the jury's allocation of liability, the Millar defendants argue that they are entitled to indemnification in an amount that corresponds to their percentage of liability when that percentage is applied to Wickes's total settlement recovery.
Def. Millar's Reply in Supp. of its "Answer" at 1.
Id. at 1-2.
Id. at 2.
Id. at 4.
4. Contribution exists "where liability is shifted . . . proportionately with a sharing of the burden among . . . [codefendants] . . . ." In Delaware, the right of contribution exists among joint tortfeasors. A joint tortfeasor may not obtain a money judgment for contribution unless that joint tortfeasor has either discharged the common liability by payment or paid more than the joint tortfeasor's pro rata share of the common liability. A joint tortfeasor who enters into a settlement with the injured party is not entitled to recover contribution from another joint tortfeasor whose liability is not extinguished by the settlement. A joint tortfeasor who receives a release from the injured party is not released from contribution to a nonreleased tortfeasor unless the release is given before the rights of the nonreleased tortfeasor for contribution have accrued and the release provides for a pro rata reduction of the injured party's damages based upon the amount of the release.
American Ins. Co. v. Material Transit, Inc., 446 A.2d 1101, 1103 (Del.Super.Ct. 1982).
See DEL. CODE ANN. tit. 10, § 6302(a) (1999).
See DEL. CODE ANN. tit. 10, § 6302(b) (1999).
See DEL. CODE ANN. tit. 10, § 6302(c) (1999).
See DEL. CODE ANN. tit. 10, § 6304(b) (2000 Supp.).
In contrast to the right of contribution, indemnification is invoked "[w]here the entire burden of liability shifts from one [co]defendant to another . . . ." "[I]ndemnification was recognized from early common law and permit[s], for example, one charged with vicarious liability to proceed against the actual wrongdoer for the full amount of the damages." Indemnification rights can also be created by "contractual relationship."
Material Transit, 446 A.2d at 1103.
McLean v. Alexander, 449 F. Supp. 1251, 1265 (D.Del. 1978), rev'd on other grounds, 599 F.2d 1190 (3d Cir. 1979).
Id.
Courts have however recognized that with the advent of comparative negligence, the rules of contribution and indemnification may be changing. As one treatise suggests:
Changes in the law of contribution and comparative fault may materially alter the context and the equities, thus causing courts to reconsider rules of indemnity. In the past, courts often viewed their choice as one between allocating the whole loss to one of two tortfeasors or dividing it equally between them. Adoption of comparative fault may be seen as creating another option — allocating loss according to percentages. In some contexts, this outcome may appear more equitable then either of the first two. . . . Thus an allocation proportional either to culpability or to causal contribution is neither contribution in the traditional sense nor indemnity in the traditional sense. . . . Since in many states there is a statute regarding contribution and a statute regarding comparative fault, but no statute explicitly allowing or disallowing indemnity, it may be argued that courts, addressing the merits, have less freedom to modify rules of "contribution" or "comparative fault" than to modify rules of "indemnity" so as to allow percentage rather than full indemnity.
W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 51, at 344 (5th ed. 1984).
Modification of the rules of indemnity, as suggested by the Prosser and Keeton treatise, has been referred to as "comparative implied indemnity," or "partial indemnity," the effect of which is to "apportion a part of the liability from one party to another [just as traditional contribution would, but without the procedural requirements contained within contribution statutes]."
PUBLISHER'S EDITORIAL STAFF, CLARK BOARDMAN CALLAGHAN, COMPARATIVE NEGLIGENCE MANUAL § 9:17, AT 9-29 (3d ed. 1995).
At lease one Delaware case has involved post-trial modification of a verdict according to the percentages of liability that the jury had determined at trial; the Court deciding that case, Seither v. Balbec Corp., captioned its disposition as "proportional indemnity."
C.A. No. 90C-11-257 WTQ, 1995 WL 465187 (Del.Super. July 27, 1995).
The salient facts of the Seither case involved a plaintiff who had been employed as a construction subcontractor and who was injured on the general contractor's construction site. Despite having reached a settlement with the general contractor for $425,000, the plaintiff went to trial against that general contractor, who in turn had brought a cross-claim against the subcontractor that had employed the plaintiff; the settling general contractor and the subcontractor that employed the plaintiff had had an indemnity agreement in place between them at the time of the plaintiff's injury. The jury "returned a verdict in favor of plaintiff and against . . . [the general contractor] and assessed damages in favor of $950,000 in favor of Mr. Seither and $20,000 for Mrs. Seither's loss of consortium claim." Furthermore, "the jury determined that . . . [the subcontractor that employed the plaintiff] was negligent in a manner proximately causing Mr. Seither's recovery against . . . [the general contractor] and that 30% of Mr. Seither's recovery against . . . [the general contractor] should be borne by . . . [the subcontractor], pursuant to the contractual indemnification provision."
Id. at *1.
Id.
Following the rendering of the jury's verdict, the Court entered judgment against the general contractor in the amount of $970,000 (the combined amount returned by the jury on both Mr. and Mrs. Seither's claims) and against the subcontractor in favor of the general contractor in the amount of $285,000 (30% of the $950,000 awarded Mr. Seither, as the indemnification agreement was determined not to cover Mrs. Seither's consortium claim). The Court itself then further apportioned the two tortfeasors' liability because the general contractor had settled with the plaintiff before trial for $425,000; by applying a ratio of $950,000 over $970,000 (the potentially indemnifiable amount under the parties' contract as compared to the combined amount actually returned by the jury) to a ratio of "x" over $425,000 (the amount the general contractor paid in settlement), the Court determined that the subcontractor's indemnification liability amounted to $124,871.13. Additionally, the Court found that the general contractor was contractually entitled to recover its expenses in defending against the plaintiff's suit and prosecuting its cross-claim against the subcontractor, and then awarded the general contractor it fees and costs on a "30% basis," i.e., the amount of negligence the jury had determined should have been apportioned to the subcontractor.
Id.
The Seither Court also calculated an additional amount due the general contractor from the subcontractor pursuant to an assignment the general contractor executed in favor of the plaintiff.
Seither, 1995 WL 465187, at *8.
4. This case was fraught with complicated legal issues; in retrospect, the Pretrial Stipulation was not as carefully drawn as it should have been, as is evidenced by the fact that the parties now disagree as to the theory on which the case was tried. However, several things are perceptible, and convince the Court that the Millar defendants should be granted the relief that they currently seek.
Despite the Delle Donne defendants' argument (which has some merit to it) that the Millar defendants' litigation theory has been inconsistent throughout this suit, the Pretrial Stipulation did identify as an issue of law that remained to be litigated the question "[w]hether the Millar Custom Engineered Maintenance Agreement in effect on the date of . . . [Wickes's] accident required [the] Millar [defendants] to defend or indemnify the . . . [Delle Donne defendants]." Similarly, the Millar defendants had earlier responded to the Delle Donne defendants' motion for summary judgment with the contention that the "Custom Engineered Maintenance" agreement was in effect on the date of Wickes's injury. The same issues were also identified in the Millar defendants' Response to the Trial Brief.
See Pretrial Order, Dkt. #133.
Dkt. #146.
While perhaps less than crystal clear in their position, the Millar defendants had put the Delle Donne defendants on notice that the Millar defendants were relying on the "Custom Engineered Maintenance" agreement as the source for the rights and duties of the parties concerning a potential liability for contribution and/or indemnification under their mutual cross-claims. That the Delle Donne defendants realized they may at some point become a contribution or indemnification source to the Millar defendants is evident — even as early as executing its release with Wickes, the Delle Donne defendants sought protection against "any decree, judgment or award against . . . [them] . . . to the extent of . . . [their] liability to any other party for contribution and/or indemnity." Thus the Delle Donne defendants could have anticipated a claim for indemnification from the Millar defendants arising under the "Custom Engineered Maintenance" agreement. And while the Millar defendants' cross-claim did specifically reference Delaware's Uniform Contribution Among Tort-Feasors Law, the Millar defendants had also demanded indemnification or contribution (albeit in a more generalized way) when they pleaded that "in the event it is judicially determined that . . . [Wickes] is entitled to recover damages against . . . [them]. . ., then . . . [the Millar defendants] hereby demand judgment over and against . . . [the Delle Donne defendants] . . . ."
Release between Wickes and Delle Donne at 3 (Ex. "A" to Def. Delle Donne's Mot.).
Def. Millar's Cross-cl.¶ 1.
As the Seither case indicates, "proportional indemnity" can be an appropriate remedy for this Court to grant when the circumstances dictate, i.e., "when this outcome . . . appear[s] more equitable. . . ." Much like the damages liability of the general contractor inSeither was "essentially capped" at the $425,000 amount that it was prepared to pay the plaintiff before proceeding to trial, the damages liability of the Delle Donne and Millar defendants combined is the $175,000 that Wickes received from them in total; that number is therefore the figure with which the Court is concerned in the present analysis, and not the $900,000 that the jury determined was the amount of damages Wickes suffered. (It should be remembered that Wickes did not participate in this trial). However, the Court finds persuasive the Millar defendants' argument that the amount of damages returned by the jury establishes the reasonableness of the total amount ($175,000) that the Millar and Delle Donne defendants paid to Wickes in settlement.
PROSSER AND KEETON, supra note 45.
Seither, 1995 WL 465187, at *5.
Additionally, the jury verdict established the relative degrees of fault of each of the Millar and Delle Donne defendants. Applying those percentages to the total amount of settlement monies that Wickes recovered from the Millar and the Delle Donne defendants, the Court finds that the proper amount of the $175,000 for which the Delle Donne defendants should have paid based on its jury-assessed 65% liability is $113,750; conversely, the proper amount for which the Millar defendants should have paid based on its jury-assessed 35% liability is $61,250. Because the Millar defendants paid $80,000 (or almost 46% of Wickes's settlement recovery), they have contributed in excess of what the jury determined to be the percentage of their liability. The Millar defendants therefore are entitled to recover their overpayment in the amount of $18,750 from the Delle Donne defendants.
With regard to attorneys' fees and costs, the Court again looks to theSeither decision for its conclusion that such fees may be recoverable as part of proportional indemnification. The fact that the Millar defendants were themselves negligent does not preclude such an award, as the "Custom Engineered Maintenance" agreement provides for such recovery. According to Seither, the Millar defendants' recovery of expenses and fees should be on a "65% basis." Because the Court has not been provided with the relevant amounts, the Court now asks counsel to confer to seek to reach agreement as to the Millar defendants' "reasonable" attorneys' fees and costs. Counsel shall submit a stipulated order on or before October 30, 2002; in the (hopefully unlikely) event that counsel cannot agree, this Court should be so informed on or before that date and the Court will thereafter confer with counsel.
Any such agreement reached would of course be subject to the parties' right of appeal. See Breece, 2002 WL 31105332, at *3 (citing Fed.R.Civ.P. 58 advisory committee's note for the proposition that "it may be more efficient to decide fee questions before an appeal is taken so that appeals relating to the fee award can be heard at the same time as appeals relating to the merits of the case.").
5. Accordingly, the Prothonotary shall enter a judgment in favor of the Millar defendants and against the Delle Donne defendants in the amount of $18,750, such amount to also include costs and reasonable attorneys' fees on a 65% basis, as provided to the Court in a forthcoming memorandum. This judgment however shall not be considered a final judgment until a separate order is entered awarding the Millar defendants their reasonable attorneys' fees and costs.