A Survey Of The Law Of Non-Contractual Indemnity And .

Products Liability Practice GroupAlabamaChristian & Small LLPBirmingham, AlabamaBy Robert E. CooperTel: 205.250.6608Fax: 205.328.7234Email: ion of FaultIn Alabama, contributory negligence serves as a completebar to recovery for simple negligence. A claimant’sproximate contributory negligence bars recovery completely,notwithstanding a showing of negligence on the part of thedefendant.1 Contributory negligence, which is not a defenseto acts of wantonness,2 is defined as negligence on the partof the plaintiff that proximately contributes to his or herinjury.3 Contributory negligence is an affirmative defenseand must be pled. The defendant has the burden of proof.4While the question of contributory negligence is normally ajury question, where “the facts are such that all reasonablepersons must reach the same conclusion,” contributorynegligence may be found as a matter of law.5The effect of contributory negligence has beenameliorated to some extent in that Alabama recognizes the“sudden emergency” and “last clear chance” doctrines.Under the sudden emergency doctrine, a person who –without fault of his own – is faced with a sudden emergencyis held to the standard of care of a reasonably prudentperson under the same or similar circumstances.6 Referred April 2015to in Alabama as “the last clear chance doctrine” and attimes discussed as “subsequent negligence,” this principlepermits recovery when the plaintiff was in a perilousposition and the defendant, with knowledge of the peril,“failed to use reasonable and ordinary care in avoiding theaccident” thereby causing injury to the plaintiff.7 Alabamaalso recognizes assumption of risk as an affirmative defense.Under this principle, a plaintiff who voluntarily assumes arisk of harm arising from the negligent or reckless conductof a defendant cannot recover for such harm.8While the pure form of contributory negligence is theminority view, it is not expected that the Alabama SupremeCourt will judicially alter the doctrine. Several years ago,the Alabama Supreme Court was presented with a directchallenge to the concept of pure contributory negligence.After extensive briefing and extended oral argument, theAlabama Supreme Court held:We have heard hours of oral argument; we have readnumerous briefs; we have studied cases from otherjurisdictions and law review articles; and in numerousconferences we have discussed in depth this issue andInt erna t ional Soci ety of Prim erus La w Firm s, Grand R a pids, Michigan

Products Liability Practice GroupAlabamaall of the ramifications surrounding such a change. Afterthis exhaustive study and these lengthy deliberations,the majority of this Court, for various reasons, hasdecided that we should not abandon the doctrine ofcontributory negligence, which has been the law inAlabama for approximately 162 years.9With regard to joint and several liability, Alabama lawdoes not permit apportionment of damages where there isjoint liability. “In Alabama, damages are not apportionedamong joint tortfeasors; instead, joint tortfeasors are jointlyand severally liable for the entire amount of damagesawarded.”10 As such, a judgment can be satisfied from one,all or any combination of the defendants. Satisfaction ofthe judgment by one joint tortfeasor discharges the othertortfeasors from liability.11IndemnificationA claim of indemnity seeks to transfer the entire losssustained by a plaintiff from one tortfeasor, who has beenordered to pay the loss, to another who is culpable.12Generally, under Alabama law, joint tortfeasors may notobtain contribution or indemnity from each other.13Alabama has recognized a few instances in whichindemnity may be permitted. First, where there is anexpress agreement or contract between the parties thatclearly indicates an intention to indemnify, the indemnitorclearly understands the agreement, and there is noevidence of disproportionate bargaining power on thepart of the indemnitee.14 Second, a joint tortfeasor mayclaim indemnity where he has been held liable either (a)“constructively, without fault, for a tort of another party”or (b) “directly, for the party’s own fault, when anotherparty’s fault actually caused the harm.”15 Further, “thealleged indemnitee may recover from another party that hasbreached a duty owed to the indemnitee.”16 April 2015Third, in some situations involving a fiduciaryrelationship, such as master/servant, principal/agent oremployer/employee, Alabama recognizes a limited commonlaw right of indemnification.17 In these circumstances,where a joint wrongdoer is not guilty of any fault other thanthat based upon his or her status as a principal, master oremployer, he has a right to seek indemnification from theparty actually (or perhaps) actively causing the injury.18ContributionSince 1933, Alabama law has been well-settled that jointtortfeasors are not entitled to contribution from one anotherand that, subject to limited exceptions, joint tortfeasors arenot entitled to indemnity from one another.19Perhaps the most cogent illustration of this principleis contained in the case of Consolidated Pipe and SupplyCo., Inc. v. Stockham Valves and Fittings, Inc.20 Thewidows of two men who were killed by the explosion ofan underground steam valve while working for AlabamaPower Company filed suit against the valve’s manufacturer(Stockham Valves & Fittings), the intermediate distributor(Louisiana Valves and Fittings) and the local distributor(Consolidated Pipe and Supply). Consolidated crossclaimed against Stockham and Louisiana, and Louisianacross-claimed against Stockham for indemnity in event thatthey were held liable to plaintiffs.The trial court directed verdicts in favor of Stockhamand Louisiana on Consolidated’s cross claim and infavor of Stockham on Louisiana’s cross claim against it.The Alabama Supreme Court held that the defendantdistributors did not come under any exception to ruleprohibiting contribution among joint tortfeasors and thatthey had no right to indemnity. “To permit appellants toprevail on this appeal would be to permit that which cannotbe done directly to be done indirectly: contribution betweentortfeasors.”21Int erna t ional Soci ety of Prim erus La w Firm s, Grand R a pids, Michigan

Products Liability Practice GroupAlabamaParties have sought to utilize third-party practice as avehicle to secure contribution, but to no avail. In a recentcase, Ex parte Stenum Hospital,22 some artful defendantsagain tried to use third party practice as a method tocircumvent this aspect of Alabama law. In February 2007,Elizabeth Duncan slipped and fell on a wet tile floor atMadison Square Mall in Huntsville. Duncan and herhusband sued Madison Square and the entities that managethe mall and provide security or housekeeping services.The Duncans alleged that she sustained a fracture to herleft patella and “aggravated and/or sustained injuries toher spine, including her neck and back.” The Duncansclaimed that Elizabeth became partially paralyzed after sheunderwent disk-replacement surgery at Stenum, a Germanhospital.The mall defendants filed a third-party complaint againstStenum and related entities and alleged claims of medicalmalpractice, fraud, negligence per se, breach of contract,abandonment of contract, abandonment of professionalrelationship, battery, the tort of outrage, and lack ofinformed consent. In the prayer for relief in the third-partycomplaint, the mall parties requested (1) that the hospitalparties be required to reimburse Madison Square for anydamages awarded to the Plaintiffs; (2) that the hospitalparties be found liable for all damages incurred by the mallparties as a result of the hospital parties’ conduct; and (3)that the hospital parties be required to reimburse the mallparties for fees, costs, and expenses incurred in having todefend against the Duncans’ claims and in having to filea third-party complaint because of the hospital parties’alleged misconduct.Following the trial court’s denial of their motion todismiss, the hospital entities’ filed a petition for writ ofmandamus. The Alabama Supreme Court granted the writand directed the trial court to vacate its order and to enteran order dismissing the third-party complaint. April 2015The court held that the claims asserted in the mallparties’ third-party complaint are all claims against thehospital parties that only the Duncans could assert. Inreaching its decision, the Stenum court relied on theCommittee Comments to Ala. R. Civ. P. 14:23Rule 14, Ala. R. Civ. P. is entirely procedural innature and will not affect substantive rights. It doesnot establish a right of reimbursement, indemnity norcontribution, but merely provides a procedure for theenforcement of such rights where they are given by thesubstantive law. For example, negligent joint tortfeasorsdo not have a right of contribution against each other inAlabama. Thus if a plaintiff sues one of two negligentjoint tortfeasors, the one sued cannot implead theother under Rule 14, for he has no substantive rightagainst the other.24The Stenum court went on to hold that, “[t]he fact thatthe mall parties request ‘reimbursement’ from the hospitalparties in their prayer for relief in the third-party complaintdoes not transform the mall parties’ third-party action intoone for indemnity. The third-party complaint does notseek either contractual indemnification or indemnificationresulting from a circumstance where the mall parties areentitled to stand in the shoes of the Duncans. The mallparties’ third-party complaint alleging medical malpracticeand other related claims against the hospital parties hasthe effect of tendering to the Duncans defendants theyhave elected not to sue, an impermissible use of third-partypractice.”25Finally, citing Mallory S.S.Co. v. Druhan as support,defendants may attempt to seek contribution based uponan “active versus passive” negligence distinction.26 Theseefforts have been futile in products liability cases as in theConsolidated Pipe case prev

This survey of law has been prepared by the Products Liability Group of the Primerus International Society of Law Firms, Defense Institute and replaces the earlier April 2012 survey. Although our focus is the defense of products liability litigation, this survey of law applies generally to any company that finds itself the target of litigation in