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Diamond Surface8/17/1998
ite to a claim for indemnity is the existence of an independent legal relationship. " ' "under which the indemnitor owes a duty either in contract or tort to the indemnitee apart from the joint duty they owe to the injured party." ' " Id. at 572-73 (quoting National Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 784 P.2d 52, 55 (Okla. 1989) and Peak Drilling Co. v. Halliburton Oil Well Cementing Co., 215 F.2d 368, 370 (10th Cir. 1954)) (emphasis added). The independent relationship may be established by an express indemnity agreement, indemnity implied from contract, or indemnity imposed by equitable considerations. Where there is an express indemnity provision, its parameters are derived from the specific language of a contract. Id. at 573.
Thus, we distinguished a claim for indemnity based on the negligent breach of duties owed to the plaintiff, no longer viable under the comparative fault statute, from a claim for indemnity based on a negligent breach of a separate duty owed to the third-party plaintiff. We concluded that under circumstances enumerated in Restatement of Torts (Second) § 886B (1979), a claim for equitable implied indemnity survived the comparative fault statute. We held:
ndemnity liability is to be allocated among the parties [to the third-party claim] proportionately to their comparative degree of fault in actions for equitable implied indemnity premised on the negligent breach of a duty between the indemnitor and the indemnitee. * * * Under this modified or partial form of equitable implied indemnity, the distinctions of "active" and "passive" negligence, while no longer determinative of the ability to seek indemnity, are factors to be weighed by the jury in assessing the percentage of fault of the parties [to the third-party claim]. Typically, a jury would be instructed, in a third-party action, that if the third-party defendant is found to have performed certain acts or omissions constituting negligence for which indemnity is permitted as a matter of law, Restatement of Torts (Second), supra at § 886B(2), and those acts or omissions contributed to cause the injuries and damage to the original plaintiff, then the third-party plaintiff should be awarded partial indemnity. * * * The partial indemnity award is a proportion of the total sum paid by the third-party plaintiff to the original plaintiff corresponding to the degree of fault of the third-party defendant.
Schneider Nat., Inc., 843 P.2d at 578-79 (emphasis added and footnotes omitted). The crux of our holding was that the focus of a third-party claim for indemnity is not the percentage of fault between all the "actors," as is a comparative fault determination in the underlying action, but a comparison of fault between the third-party plaintiff and the third-party defendant premised on an independent duty. Therefore, to state a third-party claim for equitable implied indemnity, the third-party plaintiff must allege: (1) an independent relationship with the third-party defendant; (2) negligent breach by the third-party defendant of the duty created by the independent relationship; (3) under circumstances falling within the situations addressed in Restatement Torts (Second) § 886B(2); and (4) that the breach of the duty to the third-party plaintiff contributed to cause the injuries and damage to the original plaintiff. Schneider Nat., Inc., 843 P.2d at 572, 575-79.
In other words, in order to fully apportion the "fault" of an "actor" who is a third-party defendant where each of these elements are present, the jury must consider the consequences arising from two separate claims: (1) the breach of duty of all the actors to the plaintiffs in the original suit, and (2) the bre
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