# FILED
June 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION
Filed: June 8, 1998

GENERAL ELECT RIC COMPANY, ) United States District Court ) Western District of Tennessee PLAINTIFF/R ESPONDENT, ) Eastern Division ) No. 1-96-1172 v. ) ) Hon. James D. Todd PROCESS CONTROL COMPANY, ) United States Di strict Judge ) DEFENDANT/PETITIONER. ) No. 01S01-9707-FD-00148

FOR PLAINTIF F-RESPOND ENT: FOR DEFENDANT-PETITIONER: J. Randolph Bibb, Jr. Clinton V. Butler, Jr. Nashville Jerry D. Kizer, Jr. Dale Conder, Jr. Thomas G. Cooper Jackson Boston, Massachusetts

HOLDER, J.2 OPINION

This cas e comes t

o us on a c

ertified quest ion of la

w. The p laintiff, General Electric Company ("G.E."), filed this action for contribution a gainst Process Control Company ("Process Control"). Process Control filed a moti on to dismiss and/or motion for summary judgment arguing that Tennes see law does not permit a right of contri bution in this case. The dist rict court entered an order requestin g this Cour t to addre ss the fo llowing cert ified que stion of law:

In actions that accrue after the decision in McIntyre v. Balenti ne , under what circumstances is a claim for contributi on appropriate under Te nnessee Law?
We accepted certification of the question. We hold that under the fact s as certified an action for contri bution may be viable.

BACKGROUND
Douglas Huskey, a Wisconsin res ident, was employed by A.O. Smith Corporation ("A.O. Smith") as an electrical engineer. In January of 1994, Husk ey was calibrating mete rs on a switchboard at A.O. Smith's facility i n Milan, Tennessee. The switchboard w as manufactured by the plaintiff, G.E. An electrical arcing occurred on the switch board while Huskey was calibrating meters on the switchboard.The electrical arcing caused severe burns and oth er injuries to Huskey.The defendant, Process Control, al legedly made negligent modifications to the switc hboard prior to Huskey 's accident.
Huskey and his wife filed a products liability claim against G.E. in Wisconsin. Their claims were predicated upon theories of negligence and strict3 liability. G.E.'s

counsel was of the opinion th at Process Control w ould not be subject to personal juri sdiction in the Wisconsin state court a ction. G.E., therefore, did not attempt to join P rocess Control as a part y. G.E. argued during trial, however, that Process Control made neg ligent modifications to the switchboard which caused Huskey's injuries.
The case was decided by a jury under Wisconsin law. The j ury rejected the str ict liability

claim b ut retur

ned a ve rdict i n favor of Huske y on a th eory of a negligenc e. Fault wa s apporti oned by th e jury as fo llows: 25 pe rcent to H uskey, 32 percent to G.E. and 43 percent t o A.O. Smith. The jury w as not asked to assess fault against Proces s Control. G.E. satisfied the Wisconsin judgment by paying the Huskeys approximately 2.6 million dollars.
G.E. subsequently filed the present contribution suit against Process Control, a Tennessee corporati on, in the United States Dis trict Court for the Western District of Tennessee. G.E. seeks c ontribution from Process Contr ol for that portion of Huskey's damages attributable to Process Control under Tennessee principles of comparativ e fault. G.E. alleges that H uskey's injuries were caused in substantial part by a negligent modification of the switchboard performed by Process Control's employees.

Process Control filed a moti on to dismiss and argued that Tennessee no longer recognizes

contribution as a viabl e cause of action. G.E. responds that Tennessee does permit a contributi on claim "in an appropriate ca se." G.E. argues that this is an "appropriate case" and seeks to have fault asse ssed in accordance with the pri nciples set forth in McIntyre v. Balenti ne , 833 S.W.2d 52 (Tenn. 1992).4 ANAL YSIS
McIntyre v. Balenti ne , 833 S.W.2d 52 (Ten n. 1992), did not "completely abolish the remedy of contrib ution." Bervoets v. Harde Ralls Pontiac-Olds, Inc. , 891 S.W.2d 905, 907 (Tenn. 1994). Contribution may still be viable in the following limited circumstances:
1. cases in which pr

ior to McIntyre the cause of action arose, the suit was filed and the parties had made irrevocable litigation decisions based on pre- McIntyre law, see Owens v. Truckstops of America , 915 S.W.2d 420 (Tenn. 1996); Bervoets v. Harde Ralls Pontiac-Olds, Inc. , 891 S.W.2d 905 (Te nn. 1994);
2. cases in which joi nt and several liabil ity continues to apply under doctrines such as the family purpose doctrine, cases in which torfeasors act in concert or collectively with one another, cases in which the doctrine of resp ondeat superior permits v icarious liability due to an agency-type r elationship, or in the "appro priate" products liability case, see Resolution Trust Corp. v. Block , 924 S.W.2d 354 (Tenn. 1996); Camper v. Minor , 915 S.W.2d 437 (Te nn. 1996); Owens v. Truckstops of Amer. , 915 S.W.2d 420 (Tenn. 1996), or
3. in the "appropriate case" i n which "fairness demands," see Owens , 915 S.W.2d at 430 (allowing contribution when "f airness demands"); Bervoets , 891 S.W.2d at 907 (recognizing cont ribution in the "appropriate case").5 The third circumstance, how ever, is not a broad "catc h-all" provision that

defeats the fundamental concepts of our comparativ e fault law. The circumstanc e under which "fairness demands" shoul d be applicable only w hen failure to allow contribution would impos e an injustice.
The case now before us was brought by the Huskeys and litigated in Wisconsin. Pursuant to Wisconsin law in effect at the ti me of the Huskeys' suit, contributory negligence did not bar a plaintiff's recovery unless a plaintiff's negligence was g reater than that of the defendant. Wis. Stat. § 895.045 (1994)

. Under Wisconsin Law, a plaintiff's ne gligence was compared to each defendant's negligence separately, and the primary liabi lity of the defendants was j oint and several. See Wisconsin Natural Gas Co. v. For d, Bacon & Davis Constr. Corp. , 291 N.W.2d 825 (Wis. 1980). Contribution among defendants, how ever, was based on comparative negli gence principles. See Brandner v. Allstate Ins . Co. , 512 N.W.2d 753 (W is. 1994).

Process Control was

apparently not subject to personal jurisdiction in the Huskeys' Wisconsin suit. The Wisconsin jury assessed fault against the defendants pursuant to Wisconsin's law of compar ative fault. Process Cont rol was not a party before the Wisconsin jury and, theref ore, did not have fault assessed against it . We d ecline to speculat e whether G.E. shou ld or could have removed the Huskeys' personal injury suit to a Wisconsin federal court and then at te mp t to h av

e t he case tr an sf er re d to a

fe de ra l c

ou rt in Te nn es se e. We believe that fairness demands an action for contribution based u pon the following factors: (1) the Huskeys' claim was litigated pursuant to Wisconsin law; (2) Process Control may have been a tortfeasor contributing to Huskey's injuries but was not subject to personal jurisdiction in the Huskeys' suit; and (3)6 G.E. was jointly and severally liable under Wisconsin law to the Huskey s for any damages or fault assigned by the jury to other tortfeasors.

CONCLUSION

Based on the limited facts certi fied to this Court, we hol d that a suit for contribution may be permis sible in this case. The cl erk will transmit a copy of this opinion in accordance with Tenn. R. Sup. Ct., Rule 23(8). The costs in this court will be tax

ed to the defendant.

JANICE M. HOLDER, JUSTICE
Concurring: Anderson, C.J. Drowota and Birch, J.J. Reid, J., Not Particip

ating