Brochner v. Western Insurance Co.
55 U.S.L.W. 2162, 1986 Colo. LEXIS 611, 724 P.2d 1293 (1986)
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Rule of Law:
The common law doctrine of indemnity, which requires one joint tortfeasor to reimburse another for the entire amount of damages based on a distinction between primary and secondary negligence, is abolished. The sole remedy between negligent joint tortfeasors is now contribution based on relative degrees of fault as established by the Uniform Contribution Among Tortfeasors Act.
Facts:
- In 1964, the Community Hospital Association (the hospital) granted staff privileges to Dr. Ruben Brochner.
- By 1965, after reviews indicated that tissue samples from many of Dr. Brochner's craniotomy patients appeared normal, the hospital's executive committee orally required him to obtain consultations before performing such surgeries.
- In 1966, the executive committee further recommended that Dr. Brochner obtain additional outside consultation on surgical pathological specimens.
- In March 1968, a hospital committee received a report showing that 14 of 28 tissue samples from Dr. Brochner's neurosurgery patients were completely normal, a rate an expert later testified was exceptionally high and would require investigation.
- On November 9, 1968, Dr. Brochner performed a craniotomy on Esther Cortez which resulted in her injury.
Procedural Posture:
- Esther Cortez filed a civil action in trial court against Dr. Brochner and the hospital, alleging negligence by both.
- Prior to the conclusion of the trial against the hospital, Cortez and the hospital settled for $150,000.
- Cortez later reached a separate settlement with Dr. Brochner.
- The hospital and its insurer, Western Insurance Company, then filed an indemnity action against Dr. Brochner in trial court to recover the settlement amount and other costs.
- The trial court found for the hospital, ruling that Dr. Brochner's negligence was the primary cause of Cortez's injuries and awarded the hospital indemnity.
- Dr. Brochner, as appellant, appealed to the Colorado Court of Appeals.
- The Court of Appeals affirmed the trial court's judgment in favor of the hospital, the appellee.
- The Colorado Supreme Court granted certiorari to review the decision of the Court of Appeals.
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Issue:
Does the common law doctrine of indemnity, which allows a 'secondarily' negligent joint tortfeasor to recover the full amount of damages from a 'primarily' negligent joint tortfeasor, remain viable after the legislative adoption of the Uniform Contribution Among Tortfeasors Act, which establishes contribution based on proportionate fault?
Opinions:
Majority - Kirshbaum, Justice
No. The common law doctrine of indemnity based on a distinction between primary and secondary fault is no longer viable and is abolished. The legislative adoption of the Uniform Contribution Among Tortfeasors Act established a policy of apportioning liability based on proportionate fault, which is fundamentally inconsistent with the 'all-or-nothing' nature of indemnity. Historically, indemnity was an exception to the harsh common law rule prohibiting contribution among joint tortfeasors. However, the concepts used to justify indemnity—such as 'primary' vs. 'secondary' or 'active' vs. 'passive' negligence—are ephemeral, unworkable, and lead to unpredictable and inequitable results. The legislature's adoption of a contribution scheme based on relative degrees of fault provides a more rational and equitable approach to allocating responsibility. Because the hospital was found to be independently negligent, it is a joint tortfeasor with Dr. Brochner, and its sole remedy lies in contribution, not indemnity.
Dissenting - Vollack, Justice
Yes. The common law doctrine of indemnity should remain viable because the Uniform Contribution Among Tortfeasors Act explicitly preserves it. Section 13-50.5-102(6) of the Act plainly states, 'This article does not impair any right [of] indemnity under existing law.' The majority is judicially abolishing a right the General Assembly specifically chose to retain. Indemnity and contribution are distinct legal concepts; indemnity arises from a pre-tort duty between the tortfeasors, which existed here when Dr. Brochner agreed to the hospital's consultation requirement and then breached that duty. The trial court correctly found the prerequisites for indemnity, and the majority errs by applying principles of contribution to a case governed by indemnity.
Analysis:
This decision marks a significant shift in Colorado tort law, aligning it with the modern trend favoring comparative fault principles over archaic, 'all-or-nothing' doctrines. By abolishing indemnity based on the vague primary/secondary fault distinction, the court eliminated a source of legal unpredictability and inequity. The ruling strengthens the policy underlying the Uniform Contribution Among Tortfeasors Act, ensuring that liability between negligent parties is apportioned according to their relative degrees of fault. While the court explicitly leaves open the question of indemnity in cases of vicarious liability, it effectively merges the fault analysis for most joint tortfeasors into the more rational framework of contribution.
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