Mary T. NOVAK and Martin A. Novak, Plaintiffs,
Francis W. TIGANI and Delaware Steeplechase & Race Association, a corporation of the State of Delaware, Defendants. DELAWARE STEEPLECHASE & RACE ASSOCIATION, a corporation of the State of Delaware, Third Party Plaintiff,
Walter J. HIGGINS and Matthew J. Murray, partners, doing business under the name and style of Olympic Parking Service, Third Party Defendants.
Action against lessor of parking lot and automobile driver for personal injuries sustained when thrown to ground when slack rope over which plaintiff was stepping in lot suddenly tautened when automobile ran over it. Lessor filed third-party complaint against lessee of lot, and lessee filed motion to dismiss. The Superior Court, Layton, J., held that third party complaint did not constitute invalid attempt to substitute lessee as party in place of lessor, and that impleader based on indemnity agreement was permissible.
Herbert L. Cobin, Wilmington, Del., for Delaware Steeplechase & Race Ass'n, third party plaintiff.
[49 Del. 76] William H. Bennethum, of Morford & Bennethum, Wilmington, Del., for Olympic Parking Service, third party defendant.
Mary T. Novak sued Delaware Steeplechase and Race Association and Francis Tigani as the result of injuries received from stepping over a slack rope in a parking lot which suddenly tautened when Tigani's car ran over it. As a result, plaintiff was thrown to the ground and injured.
Steeplechase, in its answer, denied liability on two affirmative grounds; first, that the parking lot had been leased to Olympic Parking Service, an independent contractor, and, secondly, that plaintiff was guilty of contributory negligence. Thereafter, Steeplechase filed a third-party complaint against Olympic Parking Service alleging as a first cause of action that it had leased the parking area in question to Olympic in order that automobiles of its patrons could be parked during the racing season; that it had denied any liability in the original action of Novak against itself and, if it should be determined
that it, the third-party plaintiff, is liable to any extent in said original action then that Olympic is or may be liable to it for all or part of such liability.
Secondly, it was alleged that under the terms of the parking agreement or lease third-party defendant agreed to indemnify third-party plaintiff against any and all claims ensuing out of the acts of the lessee or its agents. Both counts conclude with a prayer for judgment against Olympic for all sums for which Steeplechase may be found to be liable in the main action.
Olympic has filed a motion to strike each count.
[49 Del. 77] LAYTON, Judge.
Olympic argues that the first cause of action should be dismissed for two reasons. First, it contends that it is an invalid attempt to substitute it as a party in place of Steeplechase. In Ingerman v. Bonder, Del.Super., 77 A.2d 591, it was held that a third-party plaintiff could not implead a third-party defendant upon the theory that the latter was alone liable to the original plaintiff and, thus, substitute an entirely new party in the proceeding. But this is not such a case. Third-party plaintiff here, while it denies liability to the original plaintiff, nevertheless, brings in third-party defendant upon the theory that it is liable, not to the original plaintiff, but to third-party plaintiff.
Olympic's first contention is without merit but it also argues that this is a situation where contribution is not being sought because Steeplechase has denied all liability to Novak. From this Olympic argues that there are no tort feasors jointly liable among whom contribution can be assessed. If Olympic's position were sound, contribution among joint tort feasors would not be possible if the third-party plaintiff, in his capacity as defendant, denied liability to the original plaintiff. Or, to state it differently, the original defendant would have to admit at least part of the main plaintiff's claim before he could implead a third-party defendant. This argument is not persuasive and is dismissed.
Finally, as to the second cause of action Olympic moves to dismiss because Steeplechase's claim against it is based upon an indemnity agreement. Steeplechase has cited a long list of decisions in which Courts have permitted impleading based upon contracts of indemnity but Olympic attempts to distinguish these cases by showing that they were subrogation cases and not, as this, growing out of an independent contract. Moore, Federal Practice, Vol. 3, Sec. 14.10, p. 423, flatly contradicts Olympic's position. On this point, Prof. Moore says:
[49 Del. 78] ‘ The obvious case for impleader, of course, is the one in which the third-party defendant, E. F., is bound by contract to indemnify the defendant (third-party plaintiff), C. D., against the liability on which he is sued by the plaintiff, A. B. If the claim which A. B. is asserting against C. D. is within the scope of E. F.'s agreement to indemnify, E. F. can of course be brought in immediately. But even if the agreement is only to indemnify against loss, E. F. can be impleaded, since the effect of impleader practice is to accelerate liability. It is ...