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Booker v. Sears Roebuck & Co.12/5/1989
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Both claimants assert here that during pretrial discovery they had "informally" requested that Manufacturer take over the action's defense and met with rejection. This event is utterly without any legal significance on Manufacturer's liability because at the time it took place negligence counts were still pending below against both Wholesaler and Retailer. While these were later voluntarily dismissed in advance of trial, neither marketer renewed the prior request after the claim stood confined to one strictly in products liability. Under these facts, Manufacturer had had no opportunity to offer - on request - either common or separate representation for its marketers.
I would hold that Wholesaler's right to indemnity would be securely anchored on an implied-in-law obligation only if that marketer could show that it had made a significant, essential and unique contribution to the product's defense. This it did not do. The measure of recovery, which the court today extends to Wholesaler, should be reserved - under the norms I would apply prospectively - for marketers whose request for representation had been wrongly rejected.
IV.
SUMMARY
I join the court in carving out a new exception to the American Rule that allows an exonerated marketer counsel-fee recovery against an equally victorious manufacturer, but I would confine such claim's actionability, at least for now, to death cases and I would apply today's teachings prospectively to this case, those currently in trial or appellate process, and to all claims arising after the pronouncement's effective date. I would be willing to join the court in transforming the manufacturer's status from that of indemnitor from loss to one more akin to indemnitor against liability, if this change (a) were restricted today to wrongful death litigation, which, as a class, stands unaffected by the legislative fee-shifting regime of ยง 103, and (b) were not given a fully retrospective sweep.
The court concludes that Wholesaler's legal services conferred a substantial benefit upon Manufacturer. In my view, the advantage Manufacturer received via Wholesaler's defense effort was nothing more than a purely incidental benefit derived from the latter's pro forma alignment "on the same side of the table." I would hence deny Wholesaler's quest to be indemnified. I fully concur in today's judgment insofar as it denies Retailer's claim. That marketer's openly hostile trial strategy, whose pursuit simply failed to confer on Manufacturer any legal benefit, contributed absolutely nothing to the product's exoneration.
Lastly, I would fashion a new duty for manufacturers to provide marketers with legal defense services on request. This requirement would have a purely prospective effect, extending its teachings only to claims arising after the issuance of mandate.
SIMMS, Justice, dissenting.
I must respectfully dissent. I would deny both appellants' claims as the facts do not support any right to indemnification under established principles of indemnification law in this jurisdiction.
I am authorized to state that Chief Justice HARGRAVE joins with me in the views expressed herein.
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