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Oklahoma Gas & Electric Co. v. District Court12/12/1989
APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR WRIT OF MANDAMUS DENIED.
The opinion of the court was delivered by: OPALA, Vice Chief Justice.
The issue tendered for our decision is whether a writ of mandamus should issue directing the trial court to permit the defendant-petitioner to amend its answer. The purpose of the proposed amendment is to assert a counterclaim for contribution against the plaintiff in an action consolidated for purposes of trial with another cause in which the plaintiff stands as an alleged joint tortfeasor and which arose out of the same occurrence.
Because a writ of mandamus may not issue where an adequate remedy at law exists, we initially address the consequences of the trial court's refusal to permit the proposed amendment. The dispositive question is whether a claim for contribution is a compulsory counterclaim or whether it becomes compulsory as a result of consolidation. If deemed compulsory, the failure to assert the right of action in the present case would be a bar to its subsequent assertion, thus effectively denying petitioner an adequate remedy at law.
We hold that a claim for contribution is not inherently compulsory; the procedural act of consolidating two cases for trial cannot transform the character of a claim for contribution into one of a compulsory nature, which would militate in favor of granting mandamus. The right of contribution may be pressed before judgment in the underlying cause of action as either a permissive counterclaim, crossclaim, or in the case of an impleader, as a claim against a third-party defendant. The fact that a right of contribution may not "accrue" as a claim prior to judgment, does not alone stand as a barrier to its pre-judgment assertion.
FACTS
The present dispute arises from an accident which occurred when a light plane operated by Dane Knight [Pilot] struck a stationary, electrical transmission powerline owned by Oklahoma Gas & Electric Company [Electric Company]. The plane crashed, injuring the Pilot and a passenger, George Baine [Passenger]. Each filed a separate lawsuit in the same court to recover for their injuries to the body.
The Pilot asserted a claim against Electric Company, alleging negligence in the construction and maintenance of the powerline. The Passenger pressed his action against Electric Company (pleading negligent placement and design of the powerline), against the owner of the plane (alleging "negligent entrustment" of the plane to the Pilot) and against the Pilot (asserting negligent operation of the airplane). The Pilot and owner of the plane were subsequently dismissed from the Passenger's action, apparently before the Electric Company ever attempted to assert a crossclaim against its then co-defendants.
More than two years after commencement of Passenger's suit and after the Pilot's dismissal, Electric Company attempted to assert an action for contribution against Pilot by seeking to implead Pilot into the Passenger's lawsuit as a third-party defendant. While the trial court initially granted ex parte Electric Company's motion to add a third-party defendant, the court vacated that order upon Passenger's objection. Subsequently, the Electric Company reurged its motion to implead the Pilot as a third-party defendant, which motion was taken under advisement. No ruling on the motion had been made when this proceeding for mandamus was brought in this court.
Once the two cases were at issue, the trial court entered its order consolidating them for purposes of trial. Electric Company then moved for leave to amend its answer
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