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Diamond Surface8/17/1998
ach of an independent duty to the third-party plaintiff. If a third-party claim is not allowed, the jury will not have an opportunity to determine whether the third-party defendant (the indemnitor) negligently breached a separate duty to the third-party plaintiff (the indemnitee), and whether that breach of duty is the source of some, or all, of the damages owed by the third-party plaintiff to the original plaintiffs. Consequently, unless the third-party claim is viable, a third-party defendant is unjustly enriched to the extent that its negligent performance of duties owed to the third-party plaintiff is not determined in the underlying action.
In the case before us, the district court dismissed Diamond Surface's contractual indemnity claim based on the comparative fault statute. The district court then dismissed the equitable implied indemnity claim because " mplied theories of indemnity are not viable in the face of an express indemnity agreement." Wyoming Johnson, Inc. v. Stag Industries, Inc., 662 P.2d 96, 101 (Wyo. 1983). However, our holding in Schneider Nat., Inc. did not limit third-party claims for indemnity to only "equitable" claims. Schneider Nat., Inc., 843 P.2d at 571 n. 8. While it is true that equity cannot be utilized to expand or modify the express intentions of the parties, logic dictates that the same principles which support an equitable claim may be encompassed within the terms of a contract.
Here, the contractual indemnity provision unquestionably cemented an independent relationship in which the subcontractor, Brasel & Sims, assumed the duty to comply with all safety rules as well as full responsibility for the safety of its employees. It is also undisputed that Brasel & Sims agreed to indemnify Diamond Surface for all loss or expense claimed to be "due to the acts or negligence of the subcontractor, his agents, or employees." Diamond Surface alleges that Brasel & Sims breached its contractual duties by its negligent conduct, thus exposing Diamond Surface to possible liability to the original plaintiffs for which it may seek indemnity as a matter of law. Thus, Diamond Surface has alleged each element of a third-party claim for indemnity. If Diamond Surface is successful in proving its claims, Brasel & Sims' liability is limited to that part of the damages apportioned to Diamond Surface in the underlying action caused by Brasel & Sims' breach of the duty owed to Diamond Surface. As such, Brasel & Sims is indemnifying Diamond Surface according to the contractual terms.
In Schneider Nat., Inc., we stated that " nder ideal circumstances, equitable implied indemnity claims will be determined as cross-claims * * * or third-party proceedings * * * while the original plaintiff seeks damages from all causally responsible actors in a single proceeding." Schneider Nat., Inc., 843 P.2d at 579. However, we perceive the situation before us to be amenable to a bifurcated process or separate trials. To avoid confusion of issues, the jury should first determine the liability of Diamond Surface, if any, to the original plaintiffs. A second phase addressing the elements of the indemnity claim would be necessary only if Diamond Surface is found liable in the first phase. Assuming a second phase is necessary, and the jury finds that Brasel & Sims' negligent conduct breached a duty owed to Diamond Surface, the jury would then apportion the percentage of the sum paid to the original plaintiffs by Diamond Surface to the degree that Brasel & Sims' breach of its contractual duty caused Diamond Surface's liability. Bifurcation would provide additional assurance that the "fault" associated with the separate duties owed to the original and
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