### No. 12666 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

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### AUTOMOBILE CLUB INSURANCECOMPANY, Plaintiff andAppellant,

TOYOTAMOTOR SALES,U.S

### .A. 

## , INC.

## ,and TOYOTA MOTOR COMPANY,LTD., Defendants and Respondents.

Appeal from: District Court of the Eighteenth JudicialDistrict, Honorable W. W. Lessley

# ,Judgepresiding. Counsel of Record: 

### ForAppellant: 

### Bennett and Bennett, Bozeman,Montana Lyman Bennett, Jr. argued and Lyman Bennett, 111

argued, Bozeman, Montana ForRespondents: Berg,Angel,Andriolo and Morgan, Bozeman,Montana Charles F. Angel argued,Bozeman,Montana

Submitted: June 

### 13, 1974Mr. 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 isthe same accident involved inBrandenburger v. Toyota Motor Sales, Mont

# . U.S.A., Inc., 

## , 513 P.2d 268, 30 St.Rep. 808. In a motion for summary judgment plaintiffasked the trial court to take judicial notice of allrecords, pleadings, facts and the decision by this Court inBrandenburger and concluded that the decision in the trialcourt and in this Court on appeal, were resjudicata. 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 incurredby plaintiff in defending for Oltz the claim on which thejudgment was based. Four separate claims predicating liabilityaremade: 1) Strict liabilityin 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 inmanufacture and design of the vehicle in question here, whereas such allegations were contained in the cross complaint for indemnity inBrandenburger. At the close of alltestimony inBrandenburger on behalf of Toyota, a motion was made todismiss the indemnity cross complaint

on the grounds the evidence showed as a matter of law that Oltz wasguilty of activenegligence which was the proximate cause of the accident and 

### rande en burger's death. That same premise was carried forward inthe answer filed in the instant cause in the third defensewherein 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 thejury on indemnity. Subsequently in the settlement of instructions, counsel forToyota agreed that therewould be no claim of waiver of the indemnity cross claim merely because itwas not disposed of inBrandenburger. Here it 

### iscontended, however, that the verdict of thejury and the decision of this Court in Brandenburger are resjudicata as tocertain controlling factors. Therefore, inproperly applying the concept of resjudicata to this case itbecomes necessary to clearly ascertainjust what the Brandenburger decision determined. As to thejury verdict, it isimportant tonote that that claimwas 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 liabilityin tort. The jury inreturning

a verdict in favor of plaintiff against Oltz and Toyota in effect found Oltz guilty of gross negligence and Toyota either guilty of negligence inmanufacture 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 thejury determination inBrandenburger is

resjudicata only as to the following propositions: 1) Oltz was guiltyof gross negligence which was the proximate and contributingcause 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 inquestion was in a defective orunreasonably 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 toplaintiff insurance company by way of indemnity for that issuewas not before the Court. The decision of this Court was that the doctrine of strict liabilityin tort

was applicable inMontana; that the instructions on that issue

were correct; that therewas sufficient evidence to show that the vehicle inquestion 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 willnot set forth in detail the facts of Brandenburger 

### v. Toyota Motor Sales, et.al., Mont

# . , 513 p.2dS68, 30 St.Rep. 808. Reference is made to that case for the fact situation. Here, three issues arepresented. Did the trialcourt 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 inBrandenburger against Oltz and Toyota clearly determed they were joint tortfeasors. Such a determination isresjudicata as to the parties here involved in the present indemnity litigation. The general rule 

### isa joint tortfeasor isnot entitled toeither contribution or indemnity. Asnoted by Judge Jameson in Panasuk

v. Seaton, 277 F.Supp. 979, 980: "The rule iswell settled inMontana that, 'if the concurrent negligence of two ormore persons causes an injury to a third person, they arejointly and severally liable, and the injured person may sue them jointly or severally, and recover against one or all'.

[Citing cases] 

# *** the Montana court alsorecognized 1 the general rule that one of the severalwrongdoers cannot recover against anotherwrongdoer although he may have been compelled topay allthe damages for the wrong done. 1 11The "conflicting views" regarding the right of contribution as between joint tortfeasors 

### iswell summarized in the Annotation, 60 ALR2d 1366. See also: 18Am Jur 2d, Contribution 

### 5 33; 41Am Jur 2d,Indemnity 520. There are exceptions but, where each tortfeasor 

### is chargeable with affirmative negligence, neither 

### is entitled toindemnity or contribution. 41Am 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 inThompson itwas 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 toplaintiff was that of an active tortfeasor. See also: Great Northern Railway Company v. United States, 187 F.Supp. 690. As toany 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 toBrandenburger on the facts, theWashington Court denied indemnity, Northwestern Mutual Insurance Co. v. Stromme, 4Wash.App. 85, 479 P.2d 554, 556, and said:

IIIn conjunctionwith this assignment of error, plaintiff contends the doctrine of strict liability imposes a sufficient degree of liabilityon defendants for injury to the user of itsproduct 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 liabilityimposed 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 liabilitythereunder toa higher plateau or degree than theuser's liabilitywhich stems from the use of the product causing the injury; nor does it change our indemnity law pertaining tojoint tort feasors. The facts surrounding the incident givingrise to the initialcause of action and the duties breached by the tort feasors determine whether indemnity willbe 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 issuewherein 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 isgenerally held entitled to indemnity from the actualwrongdoer, regardless of whether liability

### is imposed on the person seeking indemnity by statute orby rule of

# *** law, 

# ** *.I (Italics ours.) In other words, if the tortious conduct of thewrongdoer, regardless of theunderlying theory of liability, does nothing more than furnish a condition to which a subsequent independent 'act' of a co-wrongdoer occurs, the tort feasors arenot inpari 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 willnot be allowed.

IIIn the instant appeal plaintiff's cause was dismissed atthe close of 

### its case. The trialcourt found as a matter of law that 

### Mrs. Blacklaw was liable toCurtis for (1) operating an automobile with a defectivebrake system, (2) failing to sound her horn towarn Curtis of her approach, and (3) failing toapply her emergency brake. If only (1) had been thebasis for the trial court's decisionwe would be compelled toreverse and remand the case for a factual determintation of other possible sources of 

### Mrs. 

### lackl law's liability. The actualwrongdoer in such a situation could be the retailer or the manufacturer who placed the defective automobile inher possession. [Citing case.] However, the presence of (2) and (3) establish actual liabilityinaddition toher constructive fault. Thus, her tortious conduct concurred with defendants' in producing the injury and this concurrence precludes indemnity. 11 We hold thejury's finding inBrandenburger that Oltz was grosslynegligent 

### is controlling and this precludes appellant insurance company from receiving indemnity. Having so found there can be no error in the trialcourt's failure togrant summary judgment for appellant. Granting of summary judgment for respondent was proper. The judgment is affirmed.WeConcur:

-.s ----c------------c-L--------------I^I^- chief Justice

P' /



# ..................................... Justices.

Mr. Justice Frank I. Haswell, specially concurring:

I concur in the result. However, inmy viey the rule of collateral estoppel rather than resjudicata 

### is involved here. See Gessell v. Jones, 149 Mont. 418, 427 P.2d 295, for the distinction.

Justice