corvus to construct a battery pack for one of these tugs and aka is responsible for the integration system between the battery pack and the engine aka disregards corpuses charging algorithm instruction a fire ups third party action seeking indemnity and ten months later springs a direct action against aka and several some number of weeks after that immediately settles the district court dismisses the indemnity action which is both across claim third party action on summary judgment under this scenario that has never been any kind of factual determination of any liability or fault we don't know who might be responsible or liable as a factual matter the law that the district court applies it aka urged does not contemplate this kind of factual procedural history at summary judgment and in the appeal here aka is just arguing that there's no right to  length both had a stake in each other's positions in the outcomes in this litigation counsel can i ask a question no no matter what happened in this case whether it went to trial or whether it's settled in the end your client would be liable for the proportionate share if any of the damages caused to fos right if any if any yes right right so when when your client is settled your clients settled for that amount that it thought it might possibly be found to be liable if the case went to trial that's incorrect your honor it's it is  so why would you settle for something more than that why didn't some corpus to settle and i'll take it a step further than the question if we didn't believe we were liable if we think we're totally fall free why would we have settled well the  answer that question is that this is a highly technical case it would have cost well into the high six figures to litigate it because of the expert testimony is demonstratives difficulty in presenting a case like this if corvus were to have prevailed we think we think we're zero at fault why not just try it out prove it then there's no need for indemnity if we'd done that if we'd gone that route we would have been out of pocket something like seven eight hundred thousand dollars in legal fees but we could have settled for much less than rights of another and what you can't preserve your rights with in a claim against one party to proceed against another one of your contention is that they were joint ventures their joint venture partners they have common interests they have a contract but they're not the same entity they're still separate legal entities that would you know that they could make claims get that for that very reason foss was able to sue aka in does your argument today turn on the assumption that you are zero percent at fault yes it does your honor ok so if you were even ten percent fall in aka was ninety percent at fault in the argument you're making here kind of that's right the well if if it were determined that that corpus is liable by way of negligence to some percentage and only negligence and why not strict products because the cases don't say that the foundation the seminal case is that proclaimed that contribution is not available when you know you're talking contribution not indemnity it's been held multiple times that those the that principle only applies to join tortfeasor there's no such thing as joint contract preachers so if corvus was liable to the extent of ten percent based on breach of contract which i might argue is very low a very likely outcome because of the con economic loss rule we could argue we from each other would not apply but at the time of the settlement with corvus declined or did not stipulate to whatever the amount might be that could have been found as its share of responsibility i guess your position is the only thing it was simply to is that we're not responsible for anything exactly the settlement agreement provides we disavow we do not concede by this settlement agreement that we are liable we are settling the strictly to avoid the cost and uncertainty of litigation it's in there but yet you know the the point that the rights that parties that are settling can reserve against each other don't impact some of the others no more so than aka's reservation of its rights with corvus that it is not seeking to settle claims that that foss might have against i guess what's troubling me and maybe it's because of the fact that there isn't any precedent that's on point here directly your client is seeking essentially to recover the amount that it voluntarily paid to us in order to resolve the case but then seeking to hold other fields of law in washington state for example if aka had settled with foss under these circumstances to try to get out of any potential indemnity liability or even contribution liable billeted to the other defendants there would have been a reasonable to searing to see if this is a rumor and the law didn't apply you know contemplate or allow for that here and so we settle with corby doing arc are we creating some sort of or the law of we're not creating anything this the law with the the law is as it is already and i'm just asking for it to be interpreted and yes we are certainly an equity here that's what it's all about i mean look at the global equities of this scenario where if it's true that corpus didn't do anything wrong and one of two things first to avoid high litigation costs that it would not otherwise you you would invoke to trigger this was there any thought given to asking the district court to conduct a quasar a reasonable in this proceeding in order to determine proportionate responsibility had the matter proceeded to trial i  think there's actually case law that may and i believe it's actually ninth circuit case law that says that while reasonable as hearings are useful for this purpose they're not contemplated in the admiralty can i ask you one of the one of the reasons for the m klyde decision was to minimize and hilary litigation and to promote settlement and to promote an economy in litigation how how would your being able to pursue a promote those goals if we didn't understand that we would be able to pursue indemnity against a k a we would not have settled with boss the whole litigation would have continued then that resources on and then you'd be able to seek indemnity or contribution from a k for those costs exactly but you chose not to do that we chose not to do that because we didn't want to have to pay eight hundred thousand nine hundred thousand dollars in a the policy of the law to favor settlements and resolution of disputes rather than leave sort of hanging in the air a potential claim against this third party when everybody thought they had settled and resolve  you don't know how you do it but i suppose you could have stipulated to a private arbitration to in essence to give you a proportionate share determination well i mean if we could get the parties to agree to such a thing but i don't think that that's before the court i mean you can't yes already have said i'm just confused about you or your rationale for not going forward and in the case brought against you is that you didn't want to incur all these litigation costs right it would cost too much to litigate among others yes the uncertainty of the litigation but i guess i don't understand you you said when i asked you earlier that your ability to get indemnity from a k depends on basically your having to zero percent liability and they're being completely hang on they're being completely at fault so if we were to reverse and allow your action against a k to go forward don't you have to litigate the entire dispute anyway i don't see what savings or social contract now we don't know the only thing we would have to litigate at that point that's the whole point settling it would naturally issue significantly instead of litigating all of fosse's damages the whole sick circumstances of the immigration system all out kind of thing with three parties instead we just have one issue litigate which is the sole cause of the fire being the aka's disregard of the charging algorithm instruction that corpus gave it on that one issue and then the damages would be the settlement amount instead of the no much higher but that is i mean that assumes that corpus has no responsibility at all and other words would be going into this proceeding trial whatever you want to call it with one hand tied behind its back that all were determining here is whether or not you disregarded the algorithm and therefore you're one hundred percent liable and to me that doesn't seem like a very fair proceeding it seems to me if you're going to go to trial then you've got to run the ga well and maybe the fact finders going to decide that corvus was responsible for more than zero percent of the damages well hey would be free to argue that and a case exposure would not be the huge litigation cost that  shouldn't be allowed to bring in all that evidence that you say is going to take a lot of time and a lot of the one thing it could do is argue that the settlement that we paid in for which we seek indemnity was too high because the evidence didn't demonstrate the well your theory of recovery is that you get one hundred percent of what you paid and settlements so that is a determination at least from corvus as point of view that it was responsible for none of it and the only reason it incurred this let's say it was a dollars is because it was cheaper to pay the million dollars or five hundred thousand and then go to trial i'm not sure i understand that but corpus settled with us for something less than the amount of the of the claim if that amount was still too high in an indemnity action against aka if it were established that aka was soley at fault then a k could still argue that we're not liable for the full amount of your indemnity because you paid more than the your honour's may please the court my name's dom klein i represent a k s man this case is actually fairly simple although the cause of the fire is very technical and probably beyond my scope to understand fully this is a fire aboard a tugboat as a result of the fire the owner of the tug foss was damaged foss then instigated a lawsuit against quartus and it instigated a lawsuit against aka saying they were if this case had gone to trial what was the result of then the fact finder would have made a finding of fact as to what was the cause of the damage and what more importantly what was the proximate cause of the damage if the saw proximate cause of the damage was a case fault than a k would be one hundred percent responsible for the loss however that didn't happen everybody agreed to settle the case for whatever reason they settled it to avoid attorney's fees they settled it because they had a preexisting basis with the customer but they settled it to bring finality within the meaning yes your position is that let's say that the party in corpus issues and i am absolutely convinced that i've done nothing wrong and that your client is one hundred percent to blame for for the accident right your position is that i i f i want to recover have any hope of recovering even a dollar from you i have to go through a full blown trial in order to have the liability allocation determined i can't sort of truncate things by just trying to settle for on the best deal i can i mean in a sense i'm kind of kind of mitigating your damages by not going to trial and having you know the full amount assessed against me so that then i'd have to collect one hundred percent of that from you so i don't is that that's the rule that you're advocating generally that's how the legal system works you know your position is that by settling you basically foreclose your ability to get any kind of indemnity recovery and why doesn't that discourage settlement and i underlined ok let's this disc figure out exactly where the party stood when a case settled aka had settled there was still a lawsuit going forward between foss and corpus that case goes to trial the court makes a factual finding as to who was the cause of the fire proximate to contract tort theories i submit to you that if the case is litigated that breaches a contract will be cited on a comparative fault basis so fake deals with proximate cause for breaches of warranty so it basically is going to be comparative fault situation the fact of the matter is a k i'm sorry corvus in fast had a contract under the contract the prevailing party was entitled to attorney's fees if the case went to trial and corvus prevail that they were not the proximate cause of the lawsuit was saw the fault of a k then they would get their attorney's fees paid by false they settled the case on the basis that there was a risk let's say the court agrees with corpus in this matter and decides that indemnity actions are possible between joint contract parties on a even though it's should be decided on  comparative fall basis that means we go back and we retry the case that has been settled they throw their settlement funds in and ask for attorneys fees i can tell you i didn't believe that it was a viable theory so we didn't claim indemnity against a if the court says that because there's a contract then we're going to being an indemnity point against them so the court is going to be making a decision as to who was at fault in this case with the understanding that if one party is one hundred percent at fault they have to pay all of the damages from the settlement and the other side's attorneys fees that does not seem to be in danger wanting to settle the fact of the matter is when corpus settled they were already aware that a k and faucet settled we have filed a motion for summary judgment when they already knew we were taking the position that they didn't have a crime as part of the settlement they basically decided that the risk was to great and that they could make an argument based on indemnity and again let's just take a look at the cases what is contribution indemnity what is the basis they take snippets of cases out of context and say hey we're a fall free defendant and that we therefore entitled to indemnity well you can counsel since you're going to now talk about the cases let me ask you about in essence and that therefore this is how much everyone's going to pay the email correspondence between the core attorneys indicated there had been no agreement as to who would pay what and therefore there was a global settlement with a global figure and it basically left open the issue of who was responsible for that global settlement the same thing could have happened here corvus and a k a could've gone to foss and say hey we agree that the settlement should be this amount and we will reserve the right to argue between ourselves who is responsible for that that is a contribution case once again under am clyde once we settled with fosse then that meant that the proportionate fault of us would not be one of us is responsibility and the only portion of the case that corpus was settling was its own risk of liability the court's job in the trial courts yog is not to revisit settled issues there was a claim against corvus as a tortfeasor they settled that claim based on risk the court is not supposed to do decide what was settled what was not settled that is part of the purpose of settlements that each side can decide what the issues are where they will win what they won't win that's a complex calculus that basically corvus is asking to relive the gate they were aware that we settled when they did they could have taken it to trial this is a case that is pretty much on point with and  clyde dealt with top contract and tort remedies and they decided that it should be decided on a contributary fault basis and that each party is only responsible for its portion of the damages which is what would have happened here of the case was tried be sort of a case of first impression that would extend i am caught in two cases where there has not been a trial on the merits right well i guess yes and no i mean because it's not extending cases where there's not been a trial and merits it is implying am clyde when there's multiple defendants and q s the being responsible for damage that those cases cases settle on a regular basis so if you're telling me under am clyde if i settle a case i'm done if the other side goes to trial but the other defendant goes to trial but if i settle the case and the other defendant decides to settle the case  doesn't apply and they can litigate it that doesn't make any sense what's the case is settled the fact that the nother defendant settle doesn't all of a sudden open up your settlement that way that doesn't make any sense from a practical point of view can you dress however you want to the suggestion that there was something sort of coercive about the way and it of bringing your client in and then you know there was a pretty quick settlement after that from from the outside it does look suspicious and  found that one person thought was proof of the knights templar his girlfriend however decided it was just a shopping list both theories were equally compatible with the list in this situation yes we have a business relationship with last corpus has a business relationship with oil the issue is a legal regal minds don't deal with conspiracy they deal with facts ok fact the fact is thanks for educating me about the nature of conspiracy theory the fact is that i assume when foss initially filed that suit against corvus it knew something of the circumstances under which this fire occurred certainly knew that your client was right in the middle of it yet for a can't remember how long for ten months wasn't the litigation proceeded without your client being brought in why did something in that intervening ten months change in terms of why fos all of a sudden realize oh my god ok has much greater exposure than we thought let's  bring them in and well let's just take a quick step back there was a report that was referenced in the thing that basically shows fault on both parties side a third party claim was brought against that report was available i can't remember the time you know that report was it available to time the fos products initials yes ok so that's what i'm saying that that report implicated both both of you all of the all right and so why it just seems suspicious that foss would have targeted its non joint venture part partner very soon after the cross claim or the third party claim was brought against you all of a sudden wakes up and says my god we need to go after a k and then quickly after that there's a settlement that just seems very suspicious again is the issue is what were the facts of the case there was a fire there is no evidence of a conspiracy suspicion is basically probably what happened was that corvus attorney probably the third make a fairly good argument that the court may end up coming to a conclusion that aka is all your fault and which point in time fos as any prudent litigator would do would be the why better include a claim against that because last thing  want to do is bring a claim against a defendant in find at the end of the day that i am not only response i get nothing in return i'm responsible for their attorney's fees that's what a prudent litigator would do you all of that at the very outset of the case  the report again i don't know what foss was doing there is no evidence that there was a conspiracy that said you don't have to sue us because we'll take care of something the fact of the matter is that is pure speculation there is no evidence to that it is suspicious but the rule of the court is that when a i was hoping you could say something that would dispel the suspicion parent we can't apply i'm not sure it's relevant to the legal issues before as i was just trying to get a better read on the i frankly was not involved in the litigation of that point time and again once the amended complaint was filed that's the document that controls the litigation i don't know what foss was thinking i don't know why they decided to it may have been for business reasons but again the people do business things for business reasons on a regular basis the issue is there is no nefarious plot to try and corvus responsible for more than its proportionate share of damages and that's something they have to point to that there's some sort of fraud on the court by this joint venture again joint venture is it's a bit of a red herring in this case because first of all i don't think it was argued in the trial court but that even if it was if it's a joint venture it's becomes its own legal entity and if a if in fact there was a joint venture between corvus now i'm sorry between a k and farce and for settles with corvus doesn't that extinguish any liability that a k would have because corpus is in fact settled with the joint venture that is my position i mean any again that's what i said in the brief that if the joint venture is the entity that entered into the contract again there's no evidence of that then then that the terms of the contract in the settlement would determine the rights we don't have the settlement in front of us the contract in essence would be as a corvus that has now settled with fawaz or the joint venture is now once again suing the joint venture actually right that's your argument best that's my argument but the fact of the matter is even if there was a joint venture in all likelihood the contract with corpus was outside of the joint venture and the fact of the joint venture other than being suspicious is regard it doesn't make any difference because the legal entities are separate it's not a joint venture that entered into a contract with  is false lawsuit and don't you actually have a better argument though of your view that it was a joint venture i agree we do have a better argument but we weren't a joint ventur the fact of the matter is that there may have been a joint venture for matters unrelated to the contract with corus but the fact of the matter is this we each had separate contracts with boston fawcett on the separate contract and that's what the record shows the record doesn't the record indicates that it was a joint venture as to other things but there is no indication that there the contract with corvus was a contract by the joint venture and again i really haven't even talked about the whole different indemnity theories of tor condemned the contracts will indemnity why they don't apply and i can i can go through that quite quickly contractual indemnity generally requires a relationship between the instructive on that on this in terms of the limits of that warranty davis dealt with a employee of a subcontractor that was injured on a ship as a result of that injury he sued the ship in the general contractor the general contractor owed a warranty of implied workman like performance to the ship and had to pay the ship indemnity because that's what ryan said the sub contractor who was found to be one hundred percent of all for their accident did not have to pay an indemnity to the general contractor because that is not within the scope of ryan indemnity that is not the present case i still do not understand the fundamental argument of corvus that they could have been found at fault if the cause of the fire was one hundred percent the fault of a k a it seems to me that a fact finder house to find that any breach of contract any negligence was in fact not the proximate cause of the fire and they would have no damages they settle this case a case based solely upon the risk to them that there would be an adverse judgment against them and walker give me two minutes on remote no cases ever held that the defendant which is not yet been found at fault may not see condemning the from another party no case is held that a party is fault free that it may not see condemned in fact the in a couple of places i'm looking at two twenty one i'm quoting the proportionate share rule announced in this opinion applies when there has been a settlement and here there has been a settlement after there is no determination of proportionate share there was a determination of proportion if there is none here there is still been one here in essence i read the supreme court as saying that once there is a settlement were done not in the case where there's been no fa in with where the situation is indemnity and not well if the policy of the law is to encourage settlements isn't it more likely the case that there will not be a fact finder determining proportionate share i mean the whole as we've been arguing about here for the last forty minutes the whole purpose of settlement is to avoid running the gauntlet of a bench trial or a national theatre a jury judge just just the opposite if if there is no right to indemnity if there's been a settlement then that encourages parties who feel that there are one hundred percent fall free from not settling we would have to try this case out to show that we're not  this determination on to fifth circuit circuit case is hardy's statement about non negligent tortfeasor meaning defendants on which the law imposes responsibility even though they committed no negligent acts in the trial court ruled corvus as an ordinary defendant it's liability if any arises from its own negligence but not even false allege that foss was alleging liability on corpuses part based on negligence breach of contract which warranty product liability which is strict liability these are species of liability without fault ok that's it we're done thank you very much thank you just argued is submitted for decision we'll get an answer soon as we can and the last case on the calendar nelson versus the department of