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Harsh International6/6/2003
ot only of those matters litigated, but also of those which might have been litigated in an earlier proceeding. Dakota Title v. World-Wide Steel Sys., 238 Neb. 519, 471 N.W.2d 430 (1991). Res judicata also applies to the litigation of defenses. Id.
Here, the proper time for Harsh to have raised the defense of comparative negligence was in the action between it and Rodriguez. Harsh unsuccessfully attempted to join Monfort as a third-party defendant in the action, but then abandoned any comparative negligence claim when it voluntarily settled the case and failed to properly appeal the dismissal of the third-party petition. Harsh cannot now attempt to litigate the defense of comparative negligence by bringing suit directly against Monfort.
Finally, Harsh assigned as error the failure of the court to find that there was unjust enrichment. But Harsh does not argue the issue in its brief. We also note that Harsh does not argue the issues of dual capacity or strict liability. Errors that are assigned but not argued will not be addressed by an appellate court. In re Application of Lincoln Electric System, 265 Neb. 70, 655 N.W.2d 363 (2003). We do not address these issues.
CONCLUSION
We do not recognize an exception to the exclusive remedy provision under ยง 48-148 that would allow a third party held liable to an injured employee to seek contribution from an employer for the employer's alleged intentional acts. We also do not recognize an implied indemnity exception to the exclusive remedy provision outside of the existence of a special relationship. We determine that issues of comparative negligence are res judicata. Thus, we do not address whether comparative negligence of an employer may be raised as a defense to an action between an injured employee and a third party. Finally, we determine that Harsh is not entitled to leave to amend its petition.
Affirmed.
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