Court of Appeals Clarifies Law Regarding Apportionment for Third Party Defendants.

September 7, 2016

Kentucky Court of Appeals

The Kentucky Court of Appeals recently published two cases dealing with apportionment involving third-party defendants that are of interest.


In the case of Memorial Sports Complex, LLC vs. McCormick, et al, the Court was required to determine whether the dismissal, but subsequent allowance of apportionment, of the third-party defendants was appropriate.  Memorial was sued after a minor (Mowery) suffered personal injury running into one of its fences during a baseball game.  Memorial filed a third-party complaint, seeking contribution, indemnity, and apportionment against McCormick, (Mowery’s Coach), Mowery’s father (Dale), and Geddes Fence Company (Geddes).

The trial court granted McCormick’s and Dale’s respective motions and dismissed Memorial’s third-party claims against them with prejudice in identical judgments, stating “Due to the applicability of apportionment of fault, as required in [Kentucky Revised Statutes] KRS 411.182, there is no right to contribution” and “indemnity is not appropriate as the kind of fault alleged by Plaintiff Mowery against Memorial Sports Complex, LLC is that it created and/or maintained the hazard that was the alleged cause of Mr. Mowery’s claimed injuries.”  The final judgments contained language that; “This dismissal will not prevent Third-Party Plaintiff [Memorial] from seeking an apportionment instruction relevant to the claims against it to the extent that any fault can be proved against the now
dismissed Third-Party Defendant[s][.]”  Geddes moved for summary judgment which was granted by the trial court, dismissing Memorial’s claims “with prejudice, as a matter of law, subject to apportionment in Plaintiff’s [Mowery’s] claim against Memorial.”  Memorial appealed both rulings.

After discussing Kentucky law regarding indemnification in the third-party context, the Court stated: “As a matter of law, even if the third-party defendants and Memorial are both at fault, Memorial is “the primary and efficient cause of the injury” over the third-party defendants, although Mowery may also share blame for his actions. Under such circumstances, while indemnification does not apply, Memorial will only be responsible for its own negligence under Kentucky’s comparative fault principles.”

As to contribution, the Court stated: “We agree with the trial court’s assessment that contribution is not available against third-party defendants because apportionment is required. While the trial court properly dismissed the third-party defendants because they did not owe any duty to Memorial, we disagree with Memorial that this action deprived it of any right to apportionment. Despite the trial court’s dismissal of the third-party defendants, the trial court ruled that Memorial was entitled to an apportionment instruction limiting its liability to its own negligence. We believe this result was a proper interpretation of our statutes and case law.”

In the case of the Transportation Cabinet vs. Watson, et al., Watson claimed  that the Cabinet was liable for the damages and injuries he suffered in a car wreck because they allegedly failed to maintain the traffic light at the intersection where the traffic incident occurred.  The Cabinet filed a motion to dismiss the Complaint, alleging it was
entitled to sovereign immunity. The trial court issued an order summarily denying the motion. The Cabinet appealed.

The Court stated; “The issue before us is whether the Cabinet is entitled to immunity from Watson’s suit in the McCreary Circuit Court pursuant to the sovereign immunity doctrine. Appellee Watson argues that the Cabinet is not protected by sovereign immunity.  Appellees Williams and La-Z-Boy Logistics, Inc. join with Watson’s claim, and, alternatively claim that if the Cabinet is entitled to dismissal based on immunity that Williams and La-Z-Boy Logistics, receive an apportionment instruction at trial.”

The Court concluded; “[I]n the present case, the action against the Cabinet claiming
negligence for failing to perform a ministerial function should be brought before
the Board of Claims… The Complaint filed in the McCreary Circuit Court
should be dismissed inasmuch as the Cabinet is immune from suit under the
doctrine of sovereign immunity. Accordingly, we find the trial court erred by
denying the Cabinet’s motion to dismiss on grounds of sovereign immunity.”

As to the apportionment issue, the Court noted the defendants’ reliance on two unpublished federal district court cases that discussed allowing apportionment against the Commonwealth’s agencies based on what they perceived as a grant of limited waiver of that immunity based on a plaintiff’s ability to sue in the Kentucky Board of Claims.

It stated; “[T]he district court cases erroneously interpret KRS 411.182,2 the apportionment statute, as permitting apportionment against all current and former
parties to the litigation. The Kentucky Supreme Court has held that once a party is dismissed from the lawsuit, the party is no longer subject to apportionment under the statute.”

It went on to note; “The [Supreme] Court made no distinction between absolute immunity and a partial waiver of absolute immunity, and we can find no justifiable reason for a distinction. In fact, the policy reasons announced in Smolcic remain valid even for
acts by agencies that the General Assembly has partially waived the sovereign immunity defense. The waiver and the means for suit therefrom remains the General Assembly’s prerogative. It has chosen to permit recompense for damages for negligence in ministerial acts solely through the Board of Claims. To permit this limited waiver of sovereign immunity to open the Cabinet up to third-party apportionment in cases outside of the Board of Claims would violate the same policy concerns in Smolcic… The Cabinet should not be subject to apportionment in the instant case as it is being dismissed on sovereign immunity grounds.”  (Citations omitted).

These cases will go a long way to clear up the continued confusion that arises regarding apportionment.  If a defendant files third-party claims against other defendants, but the plaintiff does not assert a claim against them, then those defendants would never be required to pay any judgment that the plaintiff recovered.  Therefore, they are not necessary as parties to the action and should be dismissed.  However, the original defendant is still allowed an apportionment instruction against those dismissed third-party defendants if it is later shown that they bear some percentage of the fault.    This is the procedure that should be employed, unless the original defendant is actually entitled to indemnity, but those cases are very rare.

The Commonwealth is cloaked in sovereign immunity and may never be sued in Circuit Court.  That’s the end of discussion.  The appropriate venue for such a claim is the Board of Claims.  Any such claim in the Circuit Court should be dismissed.  Once an agency with sovereign immunity is dismissed from such a Circuit Court action, no apportionment is allowed, because the agency with sovereign immunity was never really a party anyway.



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