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Harsh International6/6/2003
ndemnitor's employee, the employer's exclusion from liability accorded by the Worker's Compensation Act does not preclude the third party's action to enforce the indemnity agreement with the indemnitor-employer.
229 Neb. at 169, 425 N.W.2d at 879.
Although we indicated in Vangreen, supra, that a contract of indemnity could be implied, we discussed the issue in terms of a special relationship. A small minority of jurisdictions recognize the implied indemnity doctrine, while the great majority reject the implied indemnity doctrine as an exception in the absence of a special relationship. See 7 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 121.07 (2002). Examples of a special relationship are those such as principle and agent, bailor and bailee, lessor and lessee, or a situation giving rise to vicarious liability. See, Ramos v. Browning Ferris Industries, 103 N.J. 177, 510 A.2d 1152 (1986); Diekevers v SCM Corp, 73 Mich. App. 78, 250 N.W.2d 548 (1976). In contrast, the relationship between vendor and vendee will not support a claim for implied indemnification against an employer who is a vendee. Ramos, supra.
We decline to extend the exception beyond instances involving a special relationship or express contracts of indemnification. Under an express contract of indemnity, an employer has explicitly agreed to reimburse a third party for payment to an injured employee. The employer has expressly created a contractual duty of reimbursement to the third party. Likewise, a special relationship permits the primary defendant to be held liable for injuries proximately caused by the negligence of another defendant. But when the duty to indemnify is not express and a special relationship does not exist, we construe the Act to specifically limit the liability of the employer.
Here, there was no express contract of indemnity and it is clear that the relationship between Harsh and Monfort was that of vendor and vendee. The allegation that Monfort requested modifications to the mixer and changed its design does not change the relationship between the parties. Thus, Harsh cannot allege a relationship that could give rise to an implied contract of indemnity to defeat the exclusive remedy provision of § 48-148.
Harsh contends that it should have been given leave to amend its petition. If, upon the sustainment of a demurrer, it is clear that no reasonable possibility exists that an amendment will correct a pleading defect, leave to amend need not be granted. Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002). We determine that because the relationship between Harsh and Monfort is clear, the court properly denied leave to amend.
Harsh next contends that Monfort's actions were the sole proximate cause of the injury and that the comparative negligence statutes should apply. See Neb. Rev. Stat. § 25-21,185.10 (Reissue 1995). We determine that the issue is res judicata because the comparative negligence defense could have been litigated in the action between Rodriguez and Harsh.
Harsh attempted to join Monfort as a third-party defendant in the action between Rodriguez and Harsh. The court dismissed the third-party petition, and Harsh's appeal was dismissed for lack of jurisdiction. See Rodriguez v. Harsh International, 7 Neb. App. xl (No. A-98-911, Nov. 2, 1998). Harsh never filed a proper appeal of the dismissal of Monfort and then settled the case.
[9-11] Under res judicata, a final judgment on the merits is conclusive upon the parties in any later litigation involving the same cause of action. Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d 791 (2002). Res Judicata bars relitigation n
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