Personal Injury Law

Leading Tennessee Tort Cases - Contribution - Generally

By John Day

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Tennessee Tort Cases.  To order the book go here.

§ 18.1     Generally

The Case: General Electric Co. v. Process Control Co., 969 S.W.2d 914 (Tenn. 1998).

The Basic Facts: Huskey, a Wisconsin resident, was hurt in Tennessee by a product. He brought a products liability against GE, the manufacturer of the product, in Wisconsin. GE argued at trial that Process Controls negligently modified the subject product. Huskey won the case. The jury was not permitted to assess fault against Process Controls. GE then sued Process Controls in Tennessee seeking contribution.

The Bottom Line:

• '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, 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 tortfeasors 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, 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').'

969 S.W.2d at 916.

• '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.' Id.

• '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. 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. Brandner v. Allstate Ins. Co., [512 N.W.2d 753 (Wis. 1994)].' Id.

• '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) 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'. Id. at 916-17.

Other Sources of Note: Smith v. Methodist Hospitals of Memphis, 995 S.W.2d 584 (Tenn. Ct. App. 1999) (contribution denied).

Full post as published by Day on Torts on November 03, 2010 (boomark / email).