No. 12666 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

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AUTOMOBILE CLUB INSURANCE COMPANY, 

Plaintiff and Appellant, 

TOYOTA MOTOR SALES, U. S .A. , INC. , and 

TOYOTA MOTOR COMPANY, LTD., 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley , Judge presiding. 

Counsel of Record : 

For Appellant : 

Bennett and Bennett, Bozeman, Montana 

Lyman Bennett, Jr. argued and Lyman Bennett, 111 

argued, Bozeman, Montana 

For Respondents: 

Berg, Angel, Andriolo and Morgan, Bozeman, Montana 

Charles F. Angel argued, Bozeman, Montana 

Submitted: June 13, 1974 
Mr. Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from a summary judgment granted defendants 

in the district court, Gallatin County. 

This cause arose out of an accident in Gallatin County and 

is the same accident involved in Brandenburger v. Toyota Motor Sales, 

U.S.A., Inc., Mont . , 513 P.2d 268, 30 St.Rep. 808. In a 

motion for summary judgment plaintiffasked the trial court to take 

judicial notice of all records, pleadings, facts and the decision 

by this Court in Brandenburger and concluded that the decision in 

the trial court and in this Court on appeal, were res judicata. 

Here, the complaint is one whereby plaintiff Automobile Club 

Insurance Company, insurer of Tafford Oltz, driver of the Toyota, 

by way of indemnity seeks recovery from Toyota for the sum of 

$50,000 which is the amount plaintiff paid on behalf of Oltz on the 

Brandenburger verdict and judgment against Oltz and Toyota, and 

for the recovery of monies incurred by plaintiff in defending for 

Oltz the claim on which the judgment was based. Four separate claims 

predicating liability are made: 

1) Strict liability in tort; 

2) Alleged breach of express warranty; 

3) Alleged breach of implied warranty of merchantability; and 

4) Alleged breach of implied warranty of fitness for a 

particular purpose. 

In Brandenburger. Oltz filed a cross complaint against Toyota 

based on idemnity. The complaint in the instant cause is essentially 

the same as that cross complaint except that there were no allegations 

of negligence in manufacture and design of the vehicle in question 

here, whereas such allegations were contained in the cross complaint 

for indemnity in Brandenburger. 

At the close of all testimony in Brandenburger on behalf of 

Toyota, a motion was made to dismiss the indemnity cross complaint 

on the grounds the evidence showed as a matter of law that Oltz was 
guilty of active negligence which was the proximate cause of the 

accident and rande en burger's death. That same premise was carried 

forward in the answer filed in the instant cause in the third defense wherein it is alleged: 

 hat the injuries and damages of which plaintiff 

complains, if any, were contributed to and proximately 

caused by the negligence of Tafford E. Oltz, ugon 

whose right of recovery the plaintiff depends. 

The trial court initially granted the motion and then later 

took it under advisement, but did not instruct the jury on indemnity. 

Subsequently in the settlement of instructions, counsel for Toyota 

agreed that there would be no claim of waiver of the indemnity cross 

claim merely because it was not disposed of in Brandenburger. 

Here it is contended, however, that the verdict of the jury 

and the decision of this Court in Brandenburger are res judicata as 

to certain controlling factors. Therefore, in properly applying 

the concept of res judicata to this case it becomes necessary to 

clearly ascertain just what the Brandenburger decision determined. 

As to the jury verdict, it is important to note that that 

claim was submitted to the jury insofar as Oltz was concerned on a 

charge of gross negligence in the operation of the vehicle. As 

to the Brandenburger claim against Toyota, it was based on alleged 

negligence and strict liability in tort. The jury in returning 

a verdict in favor of plaintiff against Oltz and Toyota in effect 

found Oltz guilty of gross negligence and Toyota either guilty of 

negligence in manufacture and design or that the vehicle was defective and in an unreasonably unsafe condition. The effect of that 

determination by the Brandenburger jury is a determination of res 

judicata as to the above matters. 

Toyota argues that the jury determination in Brandenburger is 

res judicata only as to the following propositions: 

1) Oltz was guilty of gross negligence which was the proximate 

and contributing cause of the accident and rand en burger's death. 

In other words, but for his gross negligence, the accident would not 

have happened and Brandenburger would not have been killed. 
2) That Toyota was either guilty of negligence, or that the 

vehicle in question was in a defective or unreasonably unsafe condition, and that such negligence or condition also contributed as a 

proximate cause of rande en burger's death. 

This Court's decision in Brandenburger made no determination 

Toyota was strictly liable to plaintiff insurance company by way 

of indemnity for that issue was not before the Court. The decision 

of this Court was that the doctrine of strict liability in tort 

was applicable in Montana; that the instructions on that issue 

were correct; that there was sufficient evidence to show that the 

vehicle in question was in a defective and unreasonably dangerous 

condition; and, that such dangerous condition contributed as a 

proximate cause of rande en burger's death. 

We will not set forth in detail the facts of Brandenburger v. 

Toyota Motor Sales, et.al., Mon t . , 513 p.2dS68, 30 

St.Rep. 808. Reference is made to that case for the fact situation. 

Here, three issues are presented. Did the trial court err 

in: 

1) Determining that no right of indemnity by plaintiff 

against defendants existed? 

2) Denying plaintiff's motion for summary judgment? 

3) Granting defendants' motion for summary judgment? 

As to issue No. 1, the verdict in Brandenburger against Oltz 

and Toyota clearly determed they were joint tortfeasors. Such a 

determination is res judicata as to the parties here involved in the 

present indemnity litigation. 

The general rule is a joint tortfeasor is not entitled to either 

contribution or indemnity. As noted by Judge Jameson in Panasuk 

v. Seaton, 277 F.Supp. 979, 980: 

"The rule is well settled in Montana that, 'if the 

concurrent negligence of two or more persons causes 

an injury to a third person, they are jointly and 

severally liable, and the injured person may sue them 

jointly or severally, and recover against one or all'. 

[Citing cases] * * * the Montana court also recognized 1 the general rule that one of the several wrongdoers cannot 

recover against another wrongdoer although he may have 

been compelled to pay all the damages for the wrong done. 1 11 
The "conflicting views" regarding the right of contribution as 

between joint tortfeasors is well summarized in the Annotation, 

60 ALR2d 1366. See also: 18 Am Jur 2d, Contribution 5 33; 41 Am 

Jur 2d,Indemnity 520. There are exceptions but, where each tortfeasor is chargeable with affirmative negligence, neither is entitled 

to indemnity or contribution. 41 Am JUT 2d, Indemnity 521. 

Two recent opinions of this Court involved the question of 

indemnity between joint tortfeasors but are distinguishable. St. 

Paul Fire and Marine Ins. Co. v. Thompson, 152 Mont. 396, 451 P.2d 

98; Crosby v. Billings Deaconess Hospital, 149 Mont. 314, 426 P.2d 

217. While indemnity was allowed in Thompson it was on the basis 

of imputed negligence or responsibility under the doctrine of 

respondeat superior not on any independent act of negligence of the 

employer. 

In Crosby this Court reversed a summary judgment of the trial 

court but noted that the hospital's claim for indemnity would be 

defeated if the evidence showed that its (hospital's) responsibility 

to plaintiff was that of an active tortfeasor. See also: Great 

Northern Railway Company v. United States, 187 F.Supp. 690. 

As to any claim that the indemnity sued for in this cause is 

based upon warranty, we find that 0ltz's active negligence which 

contributed as a proximate cause to the accident bars any recwery. 

In a case similar to Brandenburger on the facts, the Washington Court 

denied indemnity, Northwestern Mutual Insurance Co. v. Stromme, 

4 Wash.App. 85, 479 P.2d 554, 556, and said: 

I I In conjunction with this assignment of error, 

plaintiff contends the doctrine of strict liability 

imposes a sufficient degree of liability on defendants 

for injury to the user of its product to establish the 

primary-secondary relationship between tort feasors 

required to invoke the exception to the indemnity pro- hibition rule. Assuming arguendo that there might be 

strict liability imposed upon defendants for injuries 

suffered by the user of a defective product in such a 

situation, this does not diminish the quantum, or 

change the character, of liability attributable to 

plaintiff ' s insured. 
"~ashington's recent adoption of strict liability 

as a basis for tort action against a manufacturer does 

not, of itself, raise the tort feasor's liability thereunder to a higher plateau or degree than the user's 

liability which stems from the use of the product causing 

the injury; nor does it change our indemnity law pertaining 

to joint tort feasors. The facts surrounding the incident 

giving rise to the initial cause of action and the duties 

breached by the tort feasors determine whether indemnity 

will be permitted, not the theory upon which their liability 

may be based. We believe Rufener v. Scott, supra, contains 

one of the clearer statements of the law applicable to this 

issue wherein it states 46 Wash.2d at 243, 280 P.2d at 255, 

quoting from 27 Am.Jur.Indemnity $18: 

I"* * dr one constructively liable for a tort is generally held entitled to indemnity from the actual wrongdoer, 

regardless of whether liability is imposed on the person seeking indemnity by statute or by rule of * * * law, * * *.I 

(Italics ours.) In other words, if the tortious conduct 

of the wrongdoer, regardless of the underlying theory of 

liability, does nothing more than furnish a condition to 

which a subsequent independent 'act' of a co-wrongdoer 

occurs, the tort feasors are not in pari delicto and indemnity may be allowed. Conversely, if each of the tort 

feasor's acts although independent concur in establishing 

the basis for the actual liability,they are in pari delicto 

and indemnity will not be allowed. 

I I In the instant appeal plaintiff's cause was dismissed 

at the close of its case. The trial court found as a matter 

of law that Mrs. Blacklaw was liable to Curtis for (1) operating an automobile with a defective brake system, (2) failing to sound her horn to warn Curtis of her approach, and 

(3) failing to apply her emergency brake. If only (1) had 

been the basis for the trial court's decision we would be 

compelled to reverse and remand the case for a factual determintation of other possible sources of Mrs. lackl law's 

liability. The actual wrongdoer in such a situation could 

be the retailer or the manufacturer who placed the defective 

automobile in her possession. [Citing case.] However, the 

presence of (2) and (3) establish actual liability in addition to her constructive fault. Thus, her tortious conduct 

concurred with defendants' in producing the injury and this 

concurrence precludes indemnity. 11 

We hold the jury's finding in Brandenburger that Oltz was 

grossly negligent is controlling and this precludes appellant insurance company from receiving indemnity. 

Having so found there can be no error in the trial court's 

failure to grant summary judgment for appellant. Granting of summary 

judgment for respondent was proper. 

The judgment is affirmed. 
We Concur: 

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chief Justice 

P' 

/ 

..................................... Justices. 

Mr. Justice Frank I. Haswell, specially concurring: 

I concur in the result. However, in my viey the rule 

of collateral estoppel rather than res judicata is involved 

here. See Gessell v. Jones, 149 Mont. 418, 427 P.2d 295, for 

the distinction. 

Justice