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Booker v. Sears Roebuck & Co.12/5/1989
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Clayton Propane, on the other hand, defended the suit in harmony with counsel for Kerr-McGee from opening statement through closing argument, calling for and participating in the defeat of plaintiff's claims. Clayton Propane, if denied an attorney's fee, would be clearly in the switch of being punished for victory and rewarded for defeat. Thus, I agree that Clayton propane should be reimbursed for its legal fees defending that portion of the plaintiff's suit concerning products liability claims, but that Kiamichi Valley may not so recover. I therefore concur in the court's opinion.
I am authorized to state that Justice DOOLIN joins in these views.
OPALA, Vice Chief Justice, with whom LAVENDER, Justice, joins, dissenting from part III of the court's opinion.
Three products liability defendants - Kerr-McGee Refining Corporation [Manufacturer], J.D. Fite, d/b/a Clayton Propane, Inc. [Wholesaler], and Kiamichi Valley LP Gas Co. [Retailer] - came to be exonerated by verdict in a wrongful death action. The latter two [claimants] appeal from an adverse postjudgment disposition of their ancillary claim against Manufacturer for counsel fees and other litigation expenses incurred when defending the lawsuit.
I.
TODAY'S HOLDING BY THE COURT
The court pronounces a new exception to the American Rule: when, in a products liability contest, the manufacturer and its co-defendant "marketers" (wholesalers, distributors or retailers) are exonerated by verdict, marketers may recover from the manufacturer attorney's fees and other suit expenses, if their own defense efforts conferred a substantial benefit upon the manufacturer. Never before has the legal system of this state recognized such fee-shifting claims among exonerated tort defendants. Today's pronouncement raises an implied-in-law manufacturer's promise in favor of an exonerated marketer to indemnify the latter for defense-related expenditures. In short, the opinion transforms the manufacturer's current status vis-a-vis its product distributors, immediate and remote, from one of an indemnitor from loss to that more akin to an of indemnitor against liability.
Although I join in giving birth to manufacturer's liability for the marketer's exoneration-related defense expenses, I would confine the new claim's actionability, at least for now, to death cases; I would today impose upon the manufacturer a duty to provide marketers, on request, with legal defense services, to be afforded either by common or separate representation, as strategy choices may dictate; I would also prescribe distinctly different parameters of liability for exonerated marketers' self-procured legal services where (a) the manufacturer's tendered representation was rejected and (b) the manufacturer refused to provide any defense services.
Moreover, I would not, as the court does today, allow the new rule of liability to have a fully retrospective sweep, but would restrict its teachings to this case, cases currently in trial or appellate process, and to all future claims arising after the pronouncement's effective date. To the additional duty I would create today - one which would require manufacturers to provide defense services on request - I would give a purely prospective effect and apply it only to claims arising after the issuance of mandate in this appeal.
In part III of its opinion, the court concludes that because Wholesaler's defense efforts benefited Manufacturer, Wholesaler should be allowed to recover. I would deny that claim. In my view, this marketer did not bring itself within the purview of today's new exception to the American Rule because its contributio
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