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Gainsco Insurance Co. v. Amoco Production Co.8/19/2002
able presumption of prejudice where the insured has failed to show substantial compliance with a condition precedent to coverage. Simpson v. United States Fidelity & Guar. Co., 562 N.W.2d 627, 631 (Iowa 1997).
[ ] Gainsco's third-party complaint against Kobbe sought indemnification. The general rule of indemnity, taken from the Restatement of Restitution § 76 (1937), has been stated by this Court as follows:
"A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct." Schneider Nat., Inc. v. Holland Hitch Co., 843 P.2d 561, 572 (Wyo. 1992).
[ ] There are three classifications of indemnity: (1) express indemnity resulting from the specific language of a contract; (2) implied contractual indemnity, also known as implied in fact indemnity, that arises from the contractual or legal relationship implied between the parties; and (3) equitable implied indemnity, also known as implied in law indemnity or common law indemnity, that is created by a relationship implied in law. Id. at 573. In its third-party complaint, Gainsco alleged equitable implied indemnity, but both equitable implied indemnity and implied contractual indemnity have been argued in this appeal.
[ ] Gainsco begins its argument by pointing out that, in Abraham, 893 P.2d at 1157, this Court determined that Andrews and Kobbe had entered into an oral contract whereby Kobbe was to perform Andrews' obligations under its contract with Amoco. Therefore, the parties had the necessary relationship to create an indemnity duty. Further, since Andrews had no duty to Abraham, any liability imposed upon Andrews could only be vicarious liability for the conduct of Kobbe. Therefore, Gainsco argues, any payment by Andrews would be the discharge of a duty ultimately owed by Kobbe.
[ ] Amoco sees a fatal flaw in Gainsco's reasoning: because its implied indemnity argument was never viable, Gainsco was not prejudiced by its dismissal. As Abraham's employer, Kobbe was immune from liability in the wrongful death suit under the worker's compensation act. Wyo. Stat. Ann. § 27-14-104 (LexisNexis 2001) (formerly Wyo. Stat. Ann. § 27-12-103 (1977 Republ. Ed.)). Kobbe's tort liability to Abraham, if any, had been replaced by its statutory obligations under the worker's compensation scheme :
"The great majority of jurisdictions have held that the employer whose concurring negligence contributed to the employee's injury cannot be sued or be joined by the third party as a joint tortfeasor, whether under contribution statutes or at common law. The ground is a simple one: the employer is not jointly liable to the employee in tort." Cities Service Co. v. Northern Production Co., Inc., 705 P.2d 321, 325 (Wyo. 1985) (quoting 2A Larson, The Law of Workmen's Compensation § 76.20). Amoco contends next that only by an express contract providing for indemnity may an employer be seen to have contracted away this protection. Cities Service Co., 705 P.2d at 325-26. Amoco concludes that, because no such express contract between Andrews and Kobbe existed in this case, Andrews may not sue Kobbe.
[ ] In Pan American Petroleum Corp. v. Maddux Well Service, 586 P.2d 1220, 1224 (Wyo. 1978), this Court held that the Worker's Compensation Act does not bar third-party claims based upon express contractual indemnity, but we declined to say whether that principle also applies to implied indemnity:
We hold that the Worker's Compensation provisions do not bar third-party claims for indemnity. The trial
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