YORK (MATTHEW) VS. PETZL AMERICA, INC. , ET AL.
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RENDERED: SEPTEMBER 24, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001483-MR
MATTHEW YORK
v.
APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 05-CI-00040
PETZL AMERICA, INC.
AND PETZL SECURITE
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON AND KELLER, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: Matthew York appeals from an order of the
Cumberland Circuit Court granting summary judgment in favor of Petzl America,
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Inc., in a personal injury action. For the following reasons, we reverse and
remand.
York, the assistant chief of the Marrowbone Volunteer Fire
Department in Cumberland County, was 24 years old at the time of the accident.
While attending a class for volunteer firefighters at the Burkesville Volunteer Fire
Department on April 12, 2004, York fell 15-20 feet onto a concrete surface while
performing a rappelling exercise. The fall was caused by his harness coming open.
York injured his lower back and spine, and surgery was required.
York filed a civil complaint in the Cumberland Circuit Court asserting
a products liability claim against Petzl, as the manufacturer of the harness, based
on his claims of defective design and negligent failure to warn. York also brought
claims for negligent instruction against the course instructor, Charles Sparks, and
for negligent training and supervision against Sparks’s supervisor, Charles Shaw.
Petzl later filed cross-claims against Sparks and Shaw seeking
indemnity, contribution, and apportionment of fault. Sparks and Shaw both filed
answers denying any liability on the cross-claims.
Thereafter, York settled his claims against Sparks and Shaw,
executing a settlement agreement and release that required York to indemnify
Sparks and Shaw against any other claims, including claims by Petzl. Specifically,
the agreement stated the following:
In consideration of the monetary settlement and
agreement as specifically described herein, [York] does
hereby agree to indemnify, save and hold harmless [Shaw
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and Sparks] from any and all other claims, cross-claims,
damages, demands, actions or causes of action by any
party, including, but not limited to [Petzl], for
reimbursement of any sums paid to or on behalf of
[York] as a result of the injuries or damages allegedly
sustained which is the subject of the lawsuit. Moreover,
[York] agrees that any settlements reached with any other
party or parties to the suit, either current party or in the
future, will require that the settling party release any and
all claims for indemnity, contribution or apportionment it
may have against said [Shaw and Sparks]. [York] does
not, however, agree to indemnify [Shaw and Sparks]
from any claims of subrogation or repayment by [York’s]
workers’ compensation carrier for any amounts paid to
[York] by way of workers’ compensation benefits or for
any attorneys’ fees, costs and/or expenses associated
therewith.
The trial court entered an agreed order of partial settlement and dismissal with
regard to York’s claims against Sparks and Shaw, while York’s claims against
Petzl were expressly reserved.
After the agreement was signed, Sparks and Shaw both filed motions
for summary judgment on Petzl’s cross-claims, claiming that Petzl had not asserted
an appropriate basis for common law indemnity against them and that Kentucky
courts no longer recognized contribution as a valid claim. York neither responded
to the motions nor appeared at the hearing of them.2 The court entered an
interlocutory order denying their motions for summary judgment and finding that
Petzl was entitled to common law indemnification from them.
Petzl thereafter moved for summary judgment against York, arguing
that because it was entitled to common law indemnity from Sparks and Shaw based
2
While Petzl emphasizes this fact in its brief, it does not raise a specific argument that York
should now be precluded from attacking the interlocutory order on that ground.
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on the court’s interlocutory order and because York had agreed to indemnify
Sparks and Shaw in the release, York’s products liability claims were extinguished
because he would be responsible for any judgment which might be rendered in his
favor against Petzl. In its brief, Petzl states its argument as follows:
If Appellant York is able to establish and recover any
damages from Petzl, then Sparks and Shaw are
immediately obligated to indemnify and reimburse Petzl
for any money paid to York based upon the Cumberland
Circuit Court’s January 22, 2009, determination of
indemnity in favor of Petzl against Shaw/Sparks.
Through York’s own Settlement Agreement, York would
then be contractually required to indemnify and
reimburse Sparks and Shaw for the money they paid
Petzl. The circular chain of indemnity claims, which is
supported by contract and operation of law, results in a
circuitry of action leaving both Appellant York and Petzl
in the same position they were in prior to the litigation.
In response to Petzl’s summary judgment motion, York claimed that
the court erred in ruling that Petzl was entitled to common law indemnity from
Sparks and Shaw,3 and he asserted that the case should be submitted to a jury with
an apportionment instruction allocating fault as between all parties. The trial court
granted summary judgment in favor of Petzl, and this appeal followed.
Before addressing the parties’ arguments, we will begin with a general
statement about the applicable standard of review. When a trial court grants a
motion for summary judgment, the relevant standard of review is “whether the trial
court correctly found that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of law.” Lewis v. B & R
3
York asserts in his brief that this interlocutory order “is the root of the problem in this case.”
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Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (quoting Scrifes v. Kraft, 916 S.W.2d
779, 781 (Ky. App. 1996)). The party opposing summary judgment must present
“at least some affirmative evidence showing that there is a genuine issue of
material fact for trial.” Lewis, 56 S.W.3d at 436 (quoting Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991)). The trial court
must “view the evidence in the light most favorable to the nonmoving party[.]” Id.
(quoting Steelvest, 807 S.W.2d at 480-82). Because summary judgment involves
only legal issues, “an appellate court need not defer to the trial court’s decision and
will review the issue de novo.” Lewis, 56 S.W.3d at 436. Further, the question of
whether there should be indemnity is a question of law once the facts have been
determined by a jury. Robinson v. Murlin Phillips & MFA Ins. Co., 557 S.W.2d
202, 204 (Ky. 1997).
Kentucky has adopted a comparative negligence scheme in negligence
cases. See Hilen v. Hayes, 673 S.W.2d 713, 720 (Ky. 1984). Additionally, KRS
411.182 confirms that comparative negligence applies to products liability cases,
stating in pertinent part that:
(1) In all tort actions, including products liability
actions, involving fault of more than one (1) party to the
action, including third-party defendants and persons who
have been released under subsection (4) of this section,
the court, unless otherwise agreed to by all parties, shall
instruct the jury to answer interrogatories or, if there is no
jury, shall make findings indicating:
(a) The amount of damages each claimant would
be entitled to recover if contributory fault is
disregarded; and
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(b) The percentage of the total fault of all the
parties to each claim that is allocated to each
claimant, defendant, third-party defendant, and
person who has been released from liability under
subsection (4) of this section.
...
(4) A release, covenant not to sue, or similar agreement
entered into by a claimant and a person liable, shall
discharge that person from all liability for contribution,
but it shall not be considered to discharge any other
persons liable upon the same claim unless it so provides.
However, the claim of the releasing person against other
persons shall be reduced by the amount of the released
persons’ equitable share of the obligation, determined in
accordance with the provisions of this section.
(Emphasis added).
Kentucky cases have held that the above statute does not do away
with the common law right to indemnity, which is available “to one exposed to
liability because of the wrongful act of another with whom he/she is not in pari
delicto[,]” or equally liable.4 Degener v. Hall Contracting Corp., 27 S.W.3d 775,
780 (Ky. 2000). As stated in Degener:
The cases in which recovery over is permitted in favor of
one who has been compelled to respond to the party
injured are exceptions to the general rule, and are based
upon principles of equity. Such exceptions obtain in two
classes of cases: (1) Where the party claiming indemnity
has not been guilty of any fault, except technically, or
constructively, as where an innocent master was held to
respond for the tort of his servant acting within the scope
of his employment; or (2) where both parties have been
4
The “in pari delicto” doctrine is generally stated as “when both parties are guilty, the court will
leave them where it finds them.” Forbes v. City of Ashland, 246 Ky. 669, 55 S.W.2d 917, 91920 (1932).
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in fault, but not in the same fault, towards the party
injured, and the fault of the party from whom indemnity
is claimed was the primary and efficient cause of the
injury.
Id. at 780 (quoting Louisville Ry. v. Louisville Taxicab & Transfer Co., 256 Ky.
827, 77 S.W.2d 36, 39 (1934) (quoting Trustees of Village of Geneva v. Brush
Elec. Co., 3 N.Y.S. 595, 596 (N.Y. Sup. Ct. 1889)). Therefore, the apportionment
statute does not abolish the common law right of indemnity where one is only
constructively or secondarily liable to a plaintiff.
The case of Franke v. Ford Motor Co., 398 F.Supp.2d 833 (W.D. Ky.
2005), sheds some light on this distinction and contains facts very similar to this
case. In Franke, the plaintiff was injured while installing a mechanical lift table on
behalf of his employer, Burns Machinery, at a truck plant owned by Ford Motor
Company. The plaintiff filed suit against Ford alleging various theories of
negligence, including negligent supervision. The plaintiff also asserted negligence
and strict liability claims against Gemini Products, the supplier of the lift table, and
Air Technical Industries (“ATI”), the table’s manufacturer.
During the litigation, ATI sought leave to file an amended answer in
order to assert cross-claims against Ford, Burns, and another party for common law
indemnity. The court ultimately denied ATI’s motion because it concluded that
ATI had not asserted a proper basis for an indemnity claim, as it could not be
determined with certainty that any one party was entirely or primarily responsible
for the injuries. Relying on the holding of Degener, the court reasoned that:
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Under Kentucky comparative fault principles, the jury
will be instructed to apportion liability in proportion to
the fault of each defendant. Assuming ATI’s allegations
are true and the jury agrees, the amount of the accident
caused by the negligence of Ford’s employee will be
apportioned to Ford . . . not to ATI. ATI will be liable
only for its own negligence, if any. Because ATI had
alleged no appropriate basis for asserting an indemnity
claim against Ford, Abel, or Burns, however, the Court
will deny its motion.
Franke, 398 F.Supp.2d at 840.
The analysis utilized by the court in Franke is persuasive.
In this case, taking every allegation in Petzl’s cross-claim as true, the fact remains
that no agency or quasi-agency relationship existed between the parties, nor can it
be said with complete certainty that any negligence on the part of Sparks or Shaw
was the entire or primary cause of York’s injuries. Rather, a jury could decide that
York was injured solely as a consequence of Petzl’s failure to design the rappelling
harness correctly or Petzl’s failure to supply proper warnings regarding the use of
the harness. A jury might also determine that Petzl, Sparks, and Shaw were all
equally liable, or in pari delicto, which would bar any claims for indemnity by
Petzl. Accordingly, we conclude that summary judgment was not appropriate in
this situation.5
5
Petzl has argued that “[t]he controlling case precedent in question is Crime Fighters Patrol v.
Hiles, 740 S.W.2d 936 (Ky. 1987).” The facts therein are clearly distinguishable from those in
this case, however, because the parties against whom liability was sought in Hiles were not in
pari delicto. In that case the settling party was clearly the party at fault, and any liability of the
nonsettling party was only through the settling party’s fault. Thus, the nonsettling party was
entitled to summary judgment. Id. at 140-41.
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Moreover, it is a well-established principle that one cannot be
required to indemnify if one is not liable. ARA Serv., Inc. v. Pineville Cmty. Hosp.,
2 S.W.3d 104, 106 (Ky. App. 1999). See also Clark v. Hauck Mfg. Co., 910
S.W.2d 247, 253 (Ky. 1995), overruled on other grounds by Martin v. Ohio
County Hosp. Corp., 295 S.W.3d 104 (Ky. 2009) (“Indemnity is not an issue until
fault has been determined. . . . There can be no indemnity without liability.”). In
this case, no determination of liability has been made with regard to Shaw or
Sparks.
The agreement states that York will indemnify and hold harmless
Shaw and Sparks “from any and all other claims, cross-claims, damages, actions or
causes of action by any party, including, but not limited to [Petzl]. . . .” At this
point, there has not been a determination that Shaw and Sparks have any fault or
liability whatsoever on any claim or cross-claim. Rather, the agreement
specifically states that “[t]he parties to this Settlement Agreement and Release
understand, acknowledge and agree that the damages, expenses, and fees that they
have allegedly sustained and the alleged legal liability are disputed and denied[.]”
The agreement further states that “the payment is not to be and will not be
construed as an admission of liability on the part of [Sparks and Shaw].”
As the Kentucky Supreme Court stated in the Clark case,
“[i]ndemnity is not an issue until fault has been determined.” Id. at 253.
Therefore, because there was no determination made regarding Sparks’s and
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Shaw’s liability, there could be no summary judgment on the issue of common law
indemnity at that point.
Under Kentucky’s comparative fault principles, the jury should be
instructed to apportion liability in proportion to the fault of each defendant (as well
as to York, if appropriate), as KRS 411.182 provides for fault to be apportioned to
a settling party. Assuming Petzl’s allegations in the cross-claim are true and the
jury agrees, the amount of the accident caused by the negligence of Sparks and
Shaw will be apportioned to them and not to Petzl. Petzl will be liable only for its
own negligence, if any.
Next, Petzl argues that York has waived on appeal the issue of
whether the trial court erred by granting Petzl summary judgment by not
specifically stating the issue in his prehearing statement. Kentucky Rules of Civil
Procedure (CR) 76.03(4)(h) requires that a party’s prehearing statement to this
court contain “[a] brief statement of the facts and issues proposed to be raised on
appeal[.]” CR 76.03(8) states that “[a] party shall be limited on appeal to issues in
the prehearing statement except that when good cause is shown the appellate court
may permit additional issues to be submitted upon timely motion.”
In his prehearing statement, York stated the issues to be raised on
appeal as follows:
A. Whether the Trial Court erred in ruling Petzl
America, Inc. was entitled to common law
indemnification from Sparks and Shaw, rather than being
subject to an apportionment of liability under KRS
411.182.
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B. Whether the allocation of fault in this product liability
action is governed by the principles of comparative fault,
as codified at KRS 411.182.
C. Whether Caterpillar v. Brock, 915 S.W.2d 75 (Ky.
1996), requires that this matter be submitted to a jury
under principles of comparative fault, as codified at KRS
411.182.
In Capital Holding Corp. v. Bailey, 873 S.W.2d 187 (Ky. 1994), the
Kentucky Supreme Court held that “failure to observe strict compliance with CR
76.03 is not jurisdictional. This being so, the question is one of substantial
compliance[.]” Id. at 197. Here, although York did not specifically mention the
summary judgment by name in his prehearing statement, we conclude that he
substantially complied with the rule by clearly stating the issues upon which the
summary judgment was based.
The order of the Cumberland Circuit Court is reversed and remanded
for further proceedings consistent with this opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Brian Schuette
Bowling Green, Kentucky
Marc A. Lovell
Travis W. Calvert
Bowling Green, Kentucky
Patricia Thomas
Burkesville, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
ORAL ARGUMENT FOR
APPELLEES:
Brian Schuette
Bowling Green, Kentucky
Marc A. Lovell
Bowling Green, Kentucky
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