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Hagemann v. NJS Engineering8/8/2001
h injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort. (emphasis added).
Thus, the amendments limited the scope of the prohibition against suit by the employee to claims against "his employer or any employee, partner, officer of director of such employer . . . ." Clearly this prohibition does not apply to suits initiated by party defendants such as Lawrence County, and I disagree with the conference opinion's conclusion to the contrary.
[ .] Disposition of this issue instead rests upon an examination of the individual claims. County claims a right contribution under the Uniform Contribution Among Tortfeasors Act, arguing Simms is a "joint tortfeasor" under the Act. As the conference opinion points out, Simms cannot be a joint tortfeasor because he is not liable in tort for the injury to Hagemann. This conclusion is in line with the vast majority of jurisdictions, and is based on a plain reading of the clear language of SDCL 15-8-11. In addition, a claim for contribution is intimately tied to, and "on account of personal injury or death." SDCL 62-3-2. For those reasons, County's claim for contribution falls within the exclusivity provision of SDCL 62-3-2, and cannot stand.
[ .] A claim for indemnity, however, is not "on account of personal injury or death." Id. Indemnity is a separate cause of action that arises "independent of the underlying liability." Weiszhaar Farms, Inc. v. Tobin, 522 NW2d 484, 492 (SD 1994). Indemnity is an equitable remedy by which the burden of loss is entirely shifted from one party onto another. Mark, Inc. v. Maguire Insurance Agency, Inc., 518 NW2d 227, 230 (SD 1994). South Dakota law allows a claim for indemnity to proceed in the following circumstances: (1) derivative or vicarious liability; (2) action at direction of, and for, another; (3) breach of duty to indemnify; (4) failure to discover negligence of another; and (5) express contract. Id. Indemnity can arise through contractual agreement or based on a legal relationship, such as that between bailee and bailor or between a principal and her agent. Professor Larson notes in his treatise that as a general rule, " he third party may recover-over against the employer [or employee] whenever it can be said that the employer [or employee] breached an independent duty toward the third party and thus acquired an obligation to indemnify the third party." Larson's Workers' Compensation Law, ยง 121.04 at 121-47. Because a claim for indemnity is an independent cause of action, which does not arise "on account of personal injury or death," it should not be dismissed out of hand based on the exclusivity provision of SDCL 62-3-2. See id. Rather, it should be allowed to proceed, but only if the employer or employee owes an independent duty to the third party.
[ .] The question for this Court then becomes whether Simms owed an independent duty to County. Simms owes no contractual duty to indemnify County. Nor does the relationship between Simms and County create such a legal duty. Therefore, because Simms owes no duty to indemnify County, the circuit court was correct in dismissing County's third party complaint against Simms.
[ .] For the above reasons, I concur in result.
SABERS, Justice (dissenting).
[ .] The majority opinion fails to read SDCL 62-3-2 in its proper light. The position taken by other courts in addressing this issue and allowing contribution and indemnity best demonstrates the error:
The phrase most frequently heard in arguments against recovery over by the third party against the employer is this: the allowance of such recove
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