FILED

June 8, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FOR PUBLICATION

Filed: June 8, 1998

GENERAL ELECTRIC COMPANY, ) United States District Court

) Western District of Tennessee

PLAINTIFF/RESPONDENT, ) Eastern Division

) No. 1-96-1172

v. )

) Hon. James D. Todd

PROCESS CONTROL COMPANY, ) United States District Judge

)

DEFENDANT/PETITIONER. ) No. 01S01-9707-FD-00148

FOR PLAINTIFF-RESPONDENT: 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.
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OPINION

This case comes to us on a certified question of law. The plaintiff,

General Electric Company ("G.E."), filed this action for contribution against

Process Control Company ("Process Control"). Process Control filed a motion to

dismiss and/or motion for summary judgment arguing that Tennessee law does

not permit a right of contribution in this case. The district court entered an order

requesting this Court to address the following certified question of law:

In actions that accrue after the decision in McIntyre v. Balentine,

under what circumstances is a claim for contribution appropriate

under Tennessee Law?

We accepted certification of the question. We hold that under the facts as

certified an action for contribution may be viable.

BACKGROUND

Douglas Huskey, a Wisconsin resident, was employed by A.O. Smith

Corporation ("A.O. Smith") as an electrical engineer. In January of 1994, Huskey

was calibrating meters on a switchboard at A.O. Smith's facility in Milan,

Tennessee. The switchboard was manufactured by the plaintiff, G.E. An

electrical arcing occurred on the switchboard while Huskey was calibrating

meters on the switchboard. The electrical arcing caused severe burns and other

injuries to Huskey. The defendant, Process Control, allegedly made negligent

modifications to the switchboard 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 strict
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liability. G.E.'s counsel was of the opinion that Process Control would not be

subject to personal jurisdiction in the Wisconsin state court action. G.E.,

therefore, did not attempt to join Process Control as a party. G.E. argued during

trial, however, that Process Control made negligent modifications to the

switchboard which caused Huskey's injuries.

The case was decided by a jury under Wisconsin law. The jury rejected

the strict liability claim but returned a verdict in favor of Huskey on a theory of a

negligence. Fault was apportioned by the jury as follows: 25 percent to Huskey,

32 percent to G.E. and 43 percent to A.O. Smith. The jury was not asked to

assess fault against Process 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 corporation, in the United States District Court for the

Western District of Tennessee. G.E. seeks contribution from Process Control for

that portion of Huskey's damages attributable to Process Control under

Tennessee principles of comparative fault. G.E. alleges that Huskey's injuries

were caused in substantial part by a negligent modification of the switchboard

performed by Process Control's employees.

Process Control filed a motion to dismiss and argued that Tennessee no

longer recognizes contribution as a viable cause of action. G.E. responds that

Tennessee does permit a contribution claim "in an appropriate case." G.E.

argues that this is an "appropriate case" and seeks to have fault assessed in

accordance with the principles set forth in McIntyre v. Balentine, 833 S.W.2d 52

(Tenn. 1992).
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ANALYSIS

McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), did not "completely

abolish the remedy of contribution." 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 prior 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 (Tenn. 1994);

2. cases in which joint and several liability 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 respondeat superior permits vicarious liability

due to an agency-type relationship, or in the "appropriate" products

liability case, see Resolution Trust Corp. v. Block, 924 S.W.2d 354

(Tenn. 1996); Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996);

Owens v. Truckstops of Amer., 915 S.W.2d 420 (Tenn. 1996), or

3. in the "appropriate case" in which "fairness demands," see

Owens, 915 S.W.2d at 430 (allowing contribution when "fairness

demands"); Bervoets, 891 S.W.2d at 907 (recognizing contribution

in the "appropriate case").
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The third circumstance, however, is not a broad "catch-all" provision that defeats

the fundamental concepts of our comparative fault law. The circumstance under

which "fairness demands" should be applicable only when failure to allow

contribution would impose an injustice.

The case now before us was brought by the Huskeys and litigated in

Wisconsin. Pursuant to Wisconsin law in effect at the time of the Huskeys' suit,

contributory negligence did not bar a plaintiff's recovery unless a plaintiff's

negligence was greater than that of the defendant. Wis. Stat. § 895.045 (1994). 

Under Wisconsin Law, a plaintiff's negligence was compared to each defendant's

negligence separately, and the primary liability of the defendants was joint and

several. See Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Constr. Corp.,

291 N.W.2d 825 (Wis. 1980). Contribution among defendants, however, was

based on comparative negligence principles. See Brandner v. Allstate Ins. Co.,

512 N.W.2d 753 (Wis. 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 comparative fault. Process Control

was not a party before the Wisconsin jury and, therefore, did not have fault

assessed against it. We decline to speculate whether G.E. should or could have

removed the Huskeys' personal injury suit to a Wisconsin federal court and then

attempt to have the case transferred to a federal court in Tennessee. We

believe that fairness demands an action for contribution based upon 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) 
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G.E. was jointly and severally liable under Wisconsin law to the Huskeys for any

damages or fault assigned by the jury to other tortfeasors.

CONCLUSION

Based on the limited facts certified to this Court, we hold that a suit for

contribution may be permissible in this case. The clerk will transmit a copy of

this opinion in accordance with Tenn. R. Sup. Ct., Rule 23(8). The costs in this

court will be taxed to the defendant.

JANICE M. HOLDER, JUSTICE

Concurring:

Anderson, C.J.

Drowota and Birch, J.J.

Reid, J., Not Participating