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Franklin v. Morrison6/11/1998
50 (N.D. Miss. 1979). In that case, the accident occurred when the operator of a pickup truck attempted a left turn and a vehicle operated by the defendant attempted to pass the truck. Id. at 251-52. A minor child of the truck operator, who was riding as a passenger in the truck, was killed in the accident. Id. The operator of the truck, alleging that he had given a proper left turn signal, filed suit asserting wrongful death and other claims. Id. The defendant counterclaimed, alleging failure to give a proper turn signal. Id. at 252. The court dismissed this counterclaim for indemnification for failure to state a claim. Id. The facts, said the court, created "a classic joint tortfeasor situation" and not one involving active negligence on the part of the counterclaim defendant and passive negligence on the part of the defendant. Id.
The court further said:
"When the negligence of two or more persons in the operation of motor vehicles on the highway results in injury or damage to a person, it is an unusual case where the negligence causing the injury does not result from the activities of joint tortfeasors as distinguished from an active-passive negligence situation."
Id.
In the instant matter the jury found concurrent negligence, and Franklin's premise is that the negligence of Jiffy Lube is active. Inasmuch as the negligence of Franklin arose out of the operation of his automobile, Franklin's negligence is also active, as a matter of law.
It is well established under Maryland law that one who is guilty of active negligence cannot obtain tort indemnification. In the older cases the persons whose breaches of duty concurred in injuring the plaintiff were said to be in pari delicto. See Baltimore & Ohio R.R. Co. v. County Comm'rs of Howard County, 113 Md. 404, 414-16, 77 A. 930, 933-34 (1910); Baltimore & Ohio R.R. Co. v. County Comm'rs of Howard County, 111 Md. 176, 185-86, 73 A. 656, 658-59 (1909); see also Westfarm Assocs. Ltd. Partnership v. International Fabricare Inst., 846 F. Supp. 422, 437-38 (D. Md. 1993), aff'd sub nom. Western Assocs. Ltd. Partnership v. Washington Suburban Sanitary Comm'n, 66 F.3d 669 (4th Cir. 1995), cert. denied, 517 U.S. 1103, 116 S. Ct. 1318, 134 L. Ed. 2d 471 (1996); Pyramid Condominium Ass'n v. Morgan, 606 F. Supp. 592, 596 (D. Md. 1985); Blockston v. United States, 278 F. Supp. 576, 583-88 (D. Md. 1968); State v. Capital Airlines, Inc., 280 F. Supp. 648, 650 (S.D.N.Y. 1964); Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md. App. 217, 277-80, 674 A.2d 106, 135-37 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997); Schreiber v. Cherry Hill Constr. Co., 105 Md. App. 462, 478-79, 660 A.2d 970, 978-79, cert. denied, 340 Md. 500, 667 A.2d 341 (1995).
Under the active-passive analysis, Franklin's negligence is active, and, accordingly, tort indemnification is not available to him.
D.
Franklin particularly emphasized at oral argument his contention that a sufficiently great disproportion between the negligence of two joint tortfeasors confers a right on the party whose fault is lesser to indemnification from the party whose fault is greater. In support of this argument Franklin quotes language from two opinions, Hartford, 109 Md. App. at 277, 674 A.2d at 135 (" right to indemnification may lie, notwithstanding the parties' joint and several liability, when there is a considerable difference in the degree of fault among the wrongdoers."), and Pyramid, 606 F. Supp. at 595 (Tort indemnification lies "where the character of one tortfeasor's conduct is significantly different from that of another who is also liable for the same damages.").
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