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Satterfield v. St. Elizabeth Health Center2/17/2005
ination of liability was not necessary for it to seek indemnification from appellees.
{ } In reviewing an award of summary judgment, appellate courts must apply a de novo standard of review. Cole v. Am. Indus. & Resources Corp. (1998), 128 Ohio App.3d 546, 552, 715 N.E.2d 1179. Thus, we will apply the same test as the trial court in determining whether summary judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary judgment if no genuine issue of material fact exists and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377. Whether a fact is material depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. (1995), 104 Ohio App.3d 598, 603, 662 N.E.2d 1088, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202.
{ } The rule of indemnity provides that "where a person is chargeable with another's wrongful act and pays damages to the injured party as a result thereof, he has a right of indemnity from the person committing the wrongful act, the party paying the damages being only secondarily liable; whereas, the person committing the wrongful act is primarily liable." Travelers Indem. Co. v. Trowbridge (1975), 41 Ohio St.2d 11, 14, 321 N.E.2d 787. When the indemnity at issue is implied, as it is here, one of the co-defendants must be at fault in causing the plaintiff's injuries. O'Neill v. Showa Denko K.K. (1995), 101 Ohio App.3d 345, 349, 655 N.E.2d 767. Without fault, there is no basis for indemnification. Id. This is so because "'one party must be "chargeable" for the wrongful act of another as a prerequisite for indemnity.'" Id., quoting Convention Ctr. Inn, Ltd. v. Dow Chem. Co. (1990), 70 Ohio App.3d 243, 247, 590 N.E.2d 898, 899.
{ } Appellant's cross-claim unambiguously states:
{ } "Defendant says that if it should be found liable by virtue of principles of vicarious liability or primary and secondary negligence, that it is entitled to indemnity from such defendants who may be primarily liable to the plaintiffs." (Emphasis added.)
{ } Here, appellant was never found liable. Since there was a settlement, liability was never established. And the Satterfields dismissed all claims against all parties. Thus, appellant could not meet the term for indemnification that it included in its cross-claim. Similarly, in O'Neill, 101 Ohio App.3d 345, the Eighth District noted that because the appellant's cross-claim for indemnification was contingent upon a finding of liability and the case was settled before litigation, the appellant was barred from recovery by virtue of the cross-claim's language. The cross-claim included the language "'If [the distributor] is found to be liable to the Plaintiffs' " and "'[the distributor] is entitled to complete indemnification * * * to the extent of any judgment rendered in favor of Plaintiffs against [the manufacturer] including its costs and attorney fees.'" (Emphasis added by court of appeals.) Id. at 350. Appellant attempts to distinguish O'Neill on the basis that it was a products-liability case in which the distributor, who did not pay a settlement, sought indemnification from the manufacturer for attorney fees and costs. However, the case is still similar to the present case because the court relied upon the language in the distributor's cross-claim against the manufacturer in determining that the distributor was not entitled to indemnification. This reasoning is applicable to the case at bar.
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