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July 14, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. William C. Gardner, Trial Judge)

Before Steadman, Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: Appellant contends the trial court improperly granted summary judgment dismissing his claims for indemnity, contribution and wrongful involvement in litigation. We agree that summary judgment was erroneous on this record, and reverse.


The suit began when appellant John Taylor was sued by Jane Whitmore for damage to her property caused by excavation initiated on Taylor's adjacent property. Taylor had hired appellees Pedro Tellez and his wholly owned corporation, Tela Enterprises, Inc., to create a new entrance to his basement. Whitmore alleged in her complaint that: (1) while excavating on Taylor's property, appellees, acting as Taylor's agents, intentionally trespassed on her property; (2) both Taylor and appellees were negligent in performing the excavation; and (3) Taylor and/or appellees damaged her property in a willful and wanton manner. Taylor filed a third-party action against appellees, demanding indemnification and attorney's fees based on wrongful involvement in litigation. Taylor then settled with Whitmore by paying, through his insurance company, $15,000. *fn1

Taylor continued the suit against appellees and was allowed to add an alternative claim for contribution. Appellees, raising multiple arguments, moved for summary judgment on all three claims. The trial Judge granted the motion without stating the basis for his decision.


In support of the trial Judge's ruling, appellees contend principally that Taylor defended against Whitmore's suit by claiming that Tellez and Tela Enterprises were independent contractors, and that therefore, as a matter of law, Taylor was not liable for any negligence on appellees' part. Accordingly, they assert, he was "a mere volunteer in settling [Whitmore's] claim," Early Settlers Ins. Co. v. Schweid, 221 A.2d 920, 922 (D.C. 1966), and so is not entitled to indemnity or contribution. We considered and rejected a similar contention in Early Settlers, in reversing what we said amounted to a dismissal of the case (though the defendants' motion had been styled one "for summary judgment"). Id. There, the insurance company representing one driver involved in an automobile accident settled with the injured third person, then sued a second driver for indemnity and contribution. The defendant-appellee contended on appeal that because the plaintiff-appellant

takes the position [that defendant] was solely responsible for the accident, appellant would have had no legal responsibility to compensate [the injured person] for his losses and therefore has no claim for indemnification or contribution from him as a joint tort-feasor. maintains that in settling [the injured person's] claim appellant thus acted as a volunteer.

Id. In rejecting this contention we explained:

Ordinarily a settlement is motivated by a mutual desire to avoid the expense and risks of litigation. Unless a claim is unreasonable or the compromise imprudently consummated, the public policy of encouraging settlements should be recognized. Moses-Ecco Company v. Roscoe-Ajax Corporation, 115 U.S. App. D.C. 366, 320 F.2d 685 (1963). Appellant here is the insurance carrier for one of the parties to the accident, and it will be presumed, the contrary not having been alleged or shown, that it acted in good faith and within its rights under its policy in making the settlement. Such a settlement does not impose unconditionally the entire loss upon the insurer or prohibit or bar its right to indemnity or contribution. As [the insured] may be adJudged primarily or jointly negligent and therefore liable, to some degree, for the injuries sustained by [the third party], it cannot be said appellant was a volunteer in settling the claim against its policyholder.

Id. We went on to hold that "dismissal of the case on motion [which we viewed practically either "as a motion to dismiss or one for summary judgment"] was premature for clearly appellant's complaint raises factual issues which can be resolved only after evidence has been produced at trial." Id. Specifically,

appellant charges that the damages sustained by the [injured person] were caused by the negligent operation of the motor vehicle owned and operated by appellee. Whether appellant is entitled to indemnification or contribution from him depends on the resolution of this issue of negligence. . . . Patently more facts need to be adduced before it can be said . . . that there exists no issue of material fact. . . . .

Id. at 922-23. We further rejected the argument that the complaint was defective "because it seeks contribution from [the defendant] but at the same time alleges he was solely responsible for the accident," finding no legal ...

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