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FLOOD v. LOU LOCATION ENRG

March 4, 1980

ARLENE A. FLOOD AND BERNARD FLOOD, Plaintiffs, against RE LOU LOCATION ENRG., RE LOU LEASING ENRG., DENIS MESSIER AND JAPAN LINE LTD., Defendants; DANIEL J. FLOOD an infant by EUGENE J. FLOOD, the guardian of his property, Plaintiff, against RE LOU LOCATION ENRG., RE LOU LEASING ENRG., DENIS MESSIER AND JAPAN LINE LTD., Defendants; RE LOU LOCATION ENRG., RE LOU LEASING ENRG., DENIS MESSIER, Third Party Plaintiffs against ARLENE A. FLOOD AND BERNARD A. FLOOD, Third Party Defendants.


The opinion of the court was delivered by: WEINSTEIN

Japan Line Ltd., having lost after trial on the issue of liability, settled without an adjudication of damages. It now seeks recovery against codefendants. As indicated below, its claim must be characterized as one for contribution rather than indemnification; New York Law precludes recovery.

I. FACTS

 As a result of an accident in June 1976, claims for relief were brought by Arlene A. Flood and Bernard A. Flood against Re Lou Location, Engr., Re Lou Leasing, Engr., Denis Messier and Japan Line Ltd. and on behalf of Daniel J. Flood, an infant, against the same defendants. Defendant Denis Messier was the employee of defendant Re Lou Ltd., an independent contractor; he was the operator of the tractor trailer which struck the car owned and operated by Arlene Flood. Daniel Flood was a passenger in the car. Defendant Japan Line Ltd. was the owner of two containers being carried by the tractor trailer pursuant to a contract with Re Lou.

 Prior to trial, defendants Re Lou and Denis Messier settled pursuant to the General Obligations Law of New York (GOL) with the plaintiffs for $ 450,000. At the time of settlement, Re Lou and Messier moved to dismiss Japan Line Ltd."s cross-claim against them. They argued that section 15-108 of the GOL provides a settling tortfeasor with complete immunity from any claim of contribution by any joint tortfeasor. Japan Line Ltd. argued that its claim was based not on contribution but on indemnity making section 15-108 inapplicable. The court denied the motion as premature since the nature of the negligence, if any, for which Japan Line was liable had not yet been established and the question of whether the cross-claim was for indemnity or contribution could not yet be answered.

 A trial of the liability issue was commenced in June 1979. Re Lou, still a party to the action, chose not to be represented by counsel at the trial. The jury returned a verdict which apportioned liability as follows: Japan Line Ltd. 20%; Re Lou and Messier 55%; and Arlene Flood 25%.

 Because of the complexity of the case, the court remained uncertain as to whether the jury's verdict indicated that Japan Line was directly negligent in its hiring of Re Lou or, despite the court's instruction to the contrary, vicariously liable because of the negligence of Re Lou and Messier. Prior to discharging the jurors, the court, in an effort to resolve this uncertainty, engaged in the following discussion with counsel:

 
THE COURT: I can put to the jury . . . and that would be my inclination, the issue of foreseeability, specifically that is whether the negligence of Japan included foreseeability that a negligent driver would be put in charge of the truck.
 
I say I think that probably will be included in the verdict as it's already handed down, but if Japan wants me to bring the jury in to ask them that question, I'll do it. I'll give you a chance to sum up again on that point.
 
Do you want me to do that? The jury is coming in tomorrow at ten o'clock.
 
MR. RYAN (Japan Line): Your Honor, I firmly believe at this time that that would result in undue confusion.
 
THE COURT: You don't want me to do anything with the jury?
 
MR. RYAN: No.
 
THE COURT: You want me to ...

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