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Bowen Court Associates v. Ernst & Young3/27/2003
sue. See Roe v. Gelineau, 794 A.2d 476, 482 n.6 (R.I. 2002); Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002). Indeed, Rule 16(a) includes language embodying this rule, providing that "Errors not claimed, questions not raised and points not made [in a party's brief] ordinarily will be treated as waived and not considered by the court."
We decline, however, to extend this waiver rule to arguments not raised in a party's Rule 12A statement when such arguments are later included in a party's brief or supplemental show-cause statement. Usually, as here, the appellee will have ample opportunity to respond to such arguments. And even though Rule 12A(1) requires the appellant to summarize those issues "proposed to be argued on appeal," it conspicuously omits the above-quoted waiver language contained in Rule 16(a). Moreover, the prebriefing conference itself can cause the parties to confront or address new issues, to drop one or more arguments previously raised, or to refocus their appellate submissions to meet the questions, comments, or other problems with the record that may have surfaced for the first time at the conference. See Rule 12A(3). As a result, we hold, plaintiffs have not waived their indemnity arguments, and they are properly before this Court on appeal. We reserve the right, however, in an appropriate case -- either on our own motion or on the motion of an appellee -- to sanction an appellant for failing to include issues in a prebriefing statement that are later included in a brief or supplemental show-cause statement, especially when they could have and should have been addressed in the prebriefing statement, and to fashion other appropriate relief for an appellee who can show prejudice in such circumstances. But this is not such a case.
B. The 1997 Settlement Between DEPCO and the Accountants Bars the Indemnity Claim
Section 42-116-40 of the Rhode Island Depositors Economic Protection Act, provides in pertinent part as follows:
"Notwithstanding any provisions of law to the contrary, a person, corporation, or other entity who has resolved its liability to the Rhode Island Depositors' Economic Protection Corporation, the receiver of Rhode Island Share and Deposit Indemnity Corporation or the receiver of any state-chartered financial institution in a judicially approved good faith settlement is not liable for claims for contribution or equitable indemnity regarding matters addressed in the settlement."
Pursuant to ยง 42-116-40, once any parties have consummated a good-faith settlement with DEPCO and that settlement is judicially approved, the settling parties are immunized from any contribution or equitable-indemnity claims "regarding matters addressed in the settlement." Here, in 1997, the accountants settled claims brought by DEPCO and others charging them with professional negligence in connection with their accounting work for the credit union and others.
The matters addressed in the 1997 settlement between DEPCO and the accountants included all "claims which were asserted or could have been asserted" by DEPCO against the accountants in the lawsuit that DEPCO had filed against them in Superior Court. Among the claims that DEPCO asserted against the accountants in that lawsuit were claims for alleged negligence in providing accounting services to certain financial institutions, including their preparation of audits and financial reports for the credit union and the Rhode Island Share and Deposit Indemnity Corp. (RISDIC). Thus, the same conduct that constituted the basis for plaintiffs' equitable-indemnification claim against the accountants in this lawsuit was part and parcel of the alleged misc
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