Chapman v. Sparta

Chapman v. Sparta  (96-474); 167 Vt. 157; 702 A.2d 132

[Filed 19-Sep-1997]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-474


John Chapman                                 Supreme Court

                                             On Appeal from
    v.                                       Bennington Superior Court

Andrew Sparta, Green Mountain Tile           April Term, 1997
Distributors and Bennington House
of Tile, Inc.


John P. Wesley, J.

       John E. Brady and Timothy B. Richards of Richards and Brady, P.C.,
  Springfield, for plaintiff-appellant

       James B. Grussing of Eaton & Hayes, P.C., Woodstock, for
  defendants-appellees

PRESENT:  Amestoy, C.J., Gibson, Morse and Johnson, JJ., and Allen,
          C.J. (Ret.), Specially Assigned


       JOHNSON, J.   Plaintiff Chapman appeals the trial court's grant of
  summary judgment in favor of defendant Sparta.  He argues that the court
  erred by characterizing his indemnity action as an attempt to obtain
  contribution between joint tortfeasors.  We reverse and remand because
  material facts remain in dispute.

       Chapman laid floor tiles provided by defendant in the entryway of a
  building Chapman constructed and now owns.  In January 1992, Craig Smith
  slipped and fell on those tiles and was seriously injured.  He sued
  Chapman, who settled the claim.  Chapman then sued Sparta seeking
  indemnity, claiming that Sparta's tiles caused the accident.  Sparta moved
  for summary judgment.  He argued that Chapman had settled a negligence
  action and was therefore barred under Vermont law from seeking
  contribution.  The trial court agreed, noting that Smith's personal injury
  suit had alleged negligent conduct by Chapman, and granted summary judgment
  in favor of defendant.  Chapman appealed.

 

       We affirm a summary judgment ruling only where the record shows no
  genuine dispute of material fact and that some party is entitled to
  judgment as a matter of law.  V.R.C.P. 56(c). In deciding whether the
  parties dispute a material fact, we accept as true allegations presented in
  opposition to summary judgment if they are supported by affidavits or other
  evidentiary material.  We place the burden of proof on the moving party,
  and give the opposing party the benefit of all reasonable doubts and
  inferences in determining whether a material fact is at issue. Messier v.
  Metropolitan Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 99-100 (1990).

       We begin by reviewing the law governing indemnity actions.  Vermont
  law ordinarily bars actions for contribution between joint tortfeasors,
  Howard v. Spafford, 132 Vt. 434, 435, 321 A.2d 74, 75 (1974), but the right
  to indemnity is an exception to this rule.  Bardwell Motor Inn, Inc. v.
  Accavallo, 135 Vt. 571, 572, 381 A.2d 1061, 1062 (1977); see also Morris v.
  American Motors Corp., 142 Vt. 566, 576, 459 A.2d 968, 974 (1982) (in
  indemnity action, where parties are not in equal fault, rule against
  contribution among wrongdoers does not apply). "[I]ndemnity is a right
  accruing to a party who, without active fault, has been compelled by some
  legal obligation, such as a finding of vicarious liability, to pay damages
  occasioned by the negligence of another."  Morris, 142 Vt. at 576, 459 A.2d 
  at 974.  This right exists where one party has expressly agreed or
  undertaken to indemnify another, or where the circumstances are such that
  the law implies such an undertaking.  Bardwell, 135 Vt. at 572, 381 A.2d  at
  1062.

       In Bardwell, we permitted a hotel owner to seek indemnity from a
  contractor carrying out repairs to the hotel.  The contractor had left a
  door in a dangerous condition, and a patron of the hotel suffered a fall
  and injuries as a result.  Relying on the Restatement of Restitution, we
  held that an indemnity action was appropriate where a person has a
  nondelegable duty with respect to the conditions of the person's premises,
  but entrusted the performance of the duty to another.  Id. at 573, 381 A.2d 
  at 1062; see Restatement of Restitution § 95 cmt. a (1937).

       Chapman maintains that his case falls under Bardwell.  He claims that
  he entrusted his nondelegable duty to maintain the safety of his premises
  to defendant, by relying on defendant to recommend tiles appropriate for
  the building's entryway.  He alleges that defendant

 


       recommended tiles that were unsuitable for use in the entryway, and
  that Sparta's negligence caused Smith's injuries.

       Defendant contends, and the trial court agreed, that Chapman is barred
  from seeking indemnity because the complaint in the underlying action
  against Chapman alleged that Chapman himself was negligent.  According to
  defendant, because Chapman settled a negligence action, he cannot seek
  indemnification on the theory that he was only vicariously liable for
  Smith's injuries.  Instead, he should be bound by the allegations in the
  underlying complaint.

       We disagree.  For Chapman to prevail in this action, he must show that
  defendant was at fault in this accident and Chapman was only vicariously
  liable for Smith's injuries.  The mere allegations of the underlying
  complaint are not evidence of how the accident happened. Chapman may be
  able to show that in fact the accident resulted solely from defendant's
  negligence.  See Central Hudson Gas & Elec. Corp. v. Hatzel & Beuhler,
  Inc., 202 N.Y.S.2d 818, 820-21 (N.Y. Sup. Ct. 1956), aff'd, 205 N.Y.S.2d 864, (N.Y. App. Div. 1960); see also Zebrowski & Assocs. v. City of
  Indianapolis, 457 N.E.2d 259, 263 (Ind. Ct. App. 1983) (adopting rule in
  Central Hudson).

       We therefore reject the trial court's conclusion that the allegations
  in Smith's lawsuit preclude Chapman's indemnification claim.  In this case,
  Smith's allegations were not adjudicated and do not, in themselves, prove
  anything about the true cause of the accident.  Nor do they prove anything
  about the basis for the settlement.  We see no reason to limit Chapman's
  recovery based on the way Smith's attorney framed the underlying action. 
  At the time Smith's attorney drafted the complaint, he may have known
  nothing about the problem with the tiles or how Chapman selected the tiles.

       The only authority we find for the opposing position is Universal Gym
  Equip., Inc. v. Vic Tanny Int'l, Inc., 526 N.W.2d 5 (Mich. Ct. App. 1994),
  aff'd on reh'g, 531 N.W.2d 719 (1995), which is unpersuasive.  There, the
  court held that a claim of implied indemnification is precluded where the
  underlying complaint does not contain allegations of derivative or
  vicarious liability.  Id. at 8-9.  The opinion, however, simply states this
  rule without analysis or support,

 


       and appears to rely on prior cases without following their reasoning.

       Although the allegations in the underlying complaint do not bar
  Chapman's indemnity action, he still has significant hurdles to overcome. 
  Our decision in no way eases the requirements for establishing indemnity. 
  To prevail, Chapman must prove first that the circumstances under which he
  purchased the tiles from defendant are such that he has a right to
  indemnification.  See Peters v. Mindell, 159 Vt. 424, 428, 620 A.2d 1268,
  1270 (1992) (discussing various circumstances in which obligation of
  indemnity is imposed based on legal relationship between parties).  Second,
  Chapman must show that he was not at fault for Smith's injuries in the
  entryway to his building, but was only vicariously liable because he owned
  the building.  See Howard, 132 Vt. at 435, 321 A.2d  at 75 (Vermont law
  precludes contribution among joint tortfeasors).

       As a factual matter, these two critical questions remain in dispute. 
  Defendant denies that Chapman entrusted him with the selection of
  appropriate tile.  He emphasizes Chapman's testimony in a deposition in the
  underlying suit, where Chapman stated that he personally selected the tile,
  based on price and availability, and did not seek advice from anyone.
  Chapman, however, claims that he did not recall the details of the purchase
  at the time of that deposition.  He points to his interrogatory answers in
  this suit, where he stated that he fully explained his need for the tile to
  defendant, and defendant warranted that the tiles were appropriate.  With
  respect to the cause of Smith's injuries, the parties dispute whether
  Chapman was negligent in his maintenance of the entryway.  Because material
  facts are in dispute, summary judgment is inappropriate, and the matter
  must be remanded to the trial court for resolution.

       Reversed and remanded.

                              FOR THE COURT:


                              _______________________________________
                              Associate Justice