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Bunce v. A.P.I.

June 7, 2005

LARRY BUNCE, PLAINTIFF,
v.
A.P.I., INC., ET AL., DEFENDANTS, AND A.P.I., INC., RESPONDENT,
v.
MAC ARTHUR COMPANY, ET AL., THIRD-PARTY DEFENDANTS, ILLINOIS TOOL WORKS, INC., ET AL., APPELLANTS (A04-1348), EGAN COMPANIES, INC., APPELLANTS (A04-1394).



Dakota County District Court File No. C3-03-7424.

SYLLABUS BY THE COURT

1. Where plaintiff executed a standard Pierringer release with defendant and third-party plaintiff, the defendant and third-party plaintiff cannot then pursue claims for contribution and indemnity against non-settling third-party defendants.

2. Under a standard Pierringer release, the settling tortfeasor does not pay more than its fair share of liability. Any possible claims the settling tortfeasor says it retains for contribution or indemnity will never accrue.

The opinion of the court was delivered by: Randall, Judge

Reversed

Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Wright, Judge.

OPINION

Following the district court's denial of appellants' motion for summary judgment, the following two questions were certified for appeal: (a) given that plaintiff executed a Pierringer release in exchange for a money payment from defendant and third-party plaintiff A.P.I (respondent), can respondent A.P.I. pursue claims for indemnity or contribution against non-settling third-party defendants (appellants); and (b) does the doctrine of claim preclusion or the fact that the plaintiff died change the effect that the Pierringer release has on respondent A.P.I.'s indemnity and contribution claims?

FACTS

Plaintiff Larry Bunce was employed as an ironworker from 1961 to 1994. On April 4, 2003, Bunce brought suit against 14 defendants, including respondent A.P.I., Inc., alleging that he contracted mesothelioma as a result of his exposure to asbestos-containing products that were manufactured, sold, or distributed by the defendants. Respondent subsequently filed third-party complaints against several entities, including appellants Illinois Tool Works, Inc.; Turner Construction Company; Gagnon, Inc.; Azco, Inc.; Insulation Sales Company; and Egan Companies, Inc., who were not sued directly by Bunce. Respondent alleged in its third-party complaints that if Bunce sustained the damages as alleged in his complaint, those injuries and damages were caused by negligence, strict liability, and breach of warranty of the third-party defendants. Respondent alleged that if Bunce recovered a judgment against respondent, respondent would be entitled to full indemnity or contribution from the third-party defendants.

On July 9, 2003, the district court granted Bunce's motion to sever respondent's third-party claims so that Bunce's claims could proceed to trial without delay. On the morning of his scheduled trial, Bunce settled his case against respondent with a Pierringer release. See Pierringer v. Hoger, 124 N.W.2d 106 (Wis. 1963). Bunce executed a Pierringer release with respondent in exchange for respondent's settlement payment. The district court subsequently dismissed Bunce's suit against respondent with prejudice. Bunce died a few weeks later.

In September 2003, appellants and third-party defendants Illinois Tool Works, Inc., Turner Construction, Gagnon, Azco, and Insulation Sales moved for summary judgment on respondent's contribution claim, arguing that respondent had no contribution or indemnity rights against the third-party defendants because it had settled its differences with a Pierringer release. Appellant Egan Companies joined in the motion. The district court denied appellants' motion. On February 25, 2004, appellants sought the district court's permission to file a motion to reconsider its ruling. In the alternative, appellants filed a motion seeking to have the district court certify two questions presented as important and doubtful. The district court denied permission to bring the proposed motion to reconsider, but granted the motion to certify to this court the two questions as important and doubtful. This court consolidated the appeals by Illinois Tool Works, et al. and by Egan Companies.

ISSUE

After plaintiff Bunce executed a Pierringer release in exchange for a settlement payment from defendant and third-party plaintiff A.P.I., can A.P.I. now pursue claims for contribution and ...


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