Consolidated Utility Equipment Services, Inc. v. Emhart Manufacturing Corp.

Brock, J. The plaintiff, Consolidated Utility Equipment Services, Inc. (CUES), appeals from the Trial Court’s (DiClerico, J.) dis — 260 — missal of its indemnity action against the defendant, Emhart Manufacturing Corporation. We affirm. In October 1976, Ronald Brown, an employee of Trees, Inc., was killed when a hydraulic bucket-lift device (known as a “sky-worker”), in which he was riding, collapsed. Approximately five months earlier, Trees, Inc., had hired CUES to undertake certain repairs to the “sky-worker” and to inspect it generally. Following Brown’s death, his administratrix brought suit in Vermont against Emhart, the manufacturer of the bucket-lift equipment, alleging that Emhart was responsible for the decedent’s death. The administratrix also brought suit in New Hampshire against CUES, claiming that CUES negligently failed to discover a crack in the equipment which allegedly caused the collapse of the unit. The Vermont litigation was settled, but the New Hampshire action is still pending. CUES subsequently sued Emhart for indemnification, claiming that Emhart should bear all liability for Brown’s death, due to the fact that Emhart’s role in creating the alleged defect in the equipment was “active,” while CUES’ alleged negligence, in failing to discover the defect, was only “passive.” The trial court dismissed the indemnity action, and CUES appealed. This court has long adhered to the traditional common-law rule prohibiting contribution, a partial shifting of liability, among joint tortfeasors. See Scahill v. Miniter, 101 N.H. 56, 57, 132 A.2d 140, 142 (1957); Company v. Railroad, 62 N.H. 159, 160 (1882). However, we have not previously had the opportunity to consider the no-contribution rule in the context of our comparative negligence statute, RSA 507:7-a (Supp. 1979), which was enacted in 1969. Arguments presented by counsel for the parties, and for others interested in the issues involved in this case, persuade us that the judicial adoption of a contribution-among-joint-tortfeasors rule in New Hampshire at this time would bring with it a multitude of ramifications, the effect of many of which cannot reasonably be anticipated in the context of a single case. See generally Comment, Reconciling Comparative Negligence, Contribution, and Joint and Several Liability, 34 Wash. & Lee L. Rev. 1159 (1977). One procedural device for resolving contribution claims would be to allow impleader of joint tortfeasors, a matter which could be left to the sound discretion of the trial court. See, e.g., American Motorcycle Ass’n v. Superior Court, 20 Cal. 3d 578, 606, 578 P.2d 899, 917, 146 Cal. Rptr. 182, 200 (1978); Fed. R. Civ. P. 14(a), 42(b). Another option would be to require joint tortfeasors to resolve contribution — 261 — claims and disputes after the plaintiff has collected a final settlement or judgment. We are convinced that the task of considering and weighing the ramifications of such options is, in the first instance, a matter more appropriate for legislative action, particularly where it was the legislature itself that adopted the comparative-negligence concept. Notwithstanding our continued adherence to the no-contribution rule, one joint tortfeasor can obtain indemnification, a complete shifting of liability, against another where the indemnitee’s liability is derivative or imputed by law, see William H. Field Co. v. Nuroco Woodwork, Inc., 115 N.H. 632, 634, 348 A.2d 716, 718 (1975) (citing Morrissette v. Sears, Roebuck & Co., 114 N.H. 384, 387, 322 A.2d 7, 9 (1914)), or where an express or implied duty to indemnify exists. See Sears, Roebuck & Co. v. Philip, 112 N.H. 282, 286, 294 A.2d 211, 213 (1972); Wentworth Hotel v. Gray, Inc., 110 N.H. 458, 460-61, 272 A.2d 583, 585 (1970). A number of jurisdictions have allowed indemnification in the past where the indemnitee’s negligence was passive (i.e., failure to discover a defect) and the indemnitor’s negligence was active. However, in light of contemporary comparative negligence statutes, such indemnification has been disallowed. See, e.g., Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 373, 104 N.W.2d 843, 848 (1960) (overruled by Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362, 367-68 (Minn. 1977)); Jackson v. Associated Dry Goods Corp., 13 N.Y.2d 112, 116-17, 192 N.E.2d 167, 169-70, 242 N.Y.S.2d 210, 213-14 (1963) (overruled by Dole v. Dow Chem. Co., 30 N.Y.2d 143, 153, 282 N.E.2d 288, 295, 331 N.Y.S.2d 382, 391-92 (1972)). Language in Morrissette v. Sears, Roebuck & Co., 114 N.H. at 387, 322 A.2d at 9, appeared to signal this court’s adoption of the active-passive negligence doctrine. As the law has been clarified by Nuroco Woodwork, Inc., 115 N.H. at 634, 348 A.2d at 718, and later cases, however, we have not deviated, and do not now deviate, from the position that indemnity is permitted only when one becomes liable to a third party because of the imputed negligence of another, Baker v. Lord, 119 N.H. 868, 870, 409 A.2d 789, 789-90 (1979), or when an express or implied duty to indemnify exists. Accordingly, because CUES’ indemnity action against Emhart was based upon the active-passive negligence doctrine, we hold that the trial judge properly dismissed the case. Affirmed. — 262 — Bois, J., dissented in part; the others concurred.