Request By:
Ms. Ilse R. Dickerson
Executive Director
Board of Claims
115 Myrtle Avenue
Frankfort, Kentucky 40601-3113
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
Re: Claim No. 87-580 Frederick C. Wilds, et al v. Transportation
The Board has directed you to forward the above styled claim and to advise it whether this claim falls in the same category as a collateral or dependent claim.
In OAG 87-45 it was this office's opinion that subrogation claims were collateral or dependent claims and therefore had to be dismissed because KRS 44.070(1) provides in part that the Commonwealth ". . . shall not be liable for collateral claims which are dependent on loss to another and not the claimant . . ."
In order to answer your question we need to define terms. "Contribution" is the right of one who has discharged a common liability to recover of another also liable, the aliquot portion which he ought to pay or bear. St. Lewis v. Morrison, 50 Fed.Supp. 570 (D.C. Ky. 1943). Asserted another way, contribution connotes a share in causation, a right of contribution of one tort feasor against his co-wrongdoer. Elpers v. Kimbell, Ky., 366 S.W.2d 157 (1963).
"Indemnity" is repayment to one party by another party, who caused the loss of such amounts the first party was compelled to pay. Liberty Mut. Ins. Co. v. Louisville and Nashville Railroad Company, Ky., 455 S.W.2d 537, 541 (1970).
An example of contribution is a claim by A against B. B would cross claim against C, claiming that C helped contribute to A's loss and if B were liable B should recover one half of the payment made by B to A from C. B would seek contribution from C for part of A's loss which B was compelled to pay A.
An example of an indemnity relationship is found in Union Carbide Corp. v. Sweco, Inc., Ky.App., 610 S.W.2d 932 (1980).
There an employee of Sweco was injured as a result of an explosion which occurred at work at Sweco. The employee filed a workers' compensation claim against Sweco. Liberty Mutual Insurance Company paid certain sums on the claim. The employee and Liberty Mutual filed a tort claim against J. Daly Company, the distributor and vendor of chemical products and Union Carbide Company the manufacturer of the product. Liberty Mutual was the subrogator of its claim. Union Carbide filed a third party claim against Sweco claiming it was primarily negligent in failing to properly instruct the employee. Thus Union Carbide's claim was an indemnity claim against the employer, saying Union Carbide was not liable but Sweco was.
In both types of claims, contribution and indemnity, they are dependent on liability by one (indemnity) or both (contributions) to the original claimant who suffered the original injury or loss.
In Roehrig v. City of Louisville, Ky., 454 S.W.2d 703 (1970), the court held that a declaration or adjudication of liability for contribution can be made before a right to recover contribution has fully matured through payment, but a proceeding for adjudication of right to contribution cannot be brought before the injured party himself has asserted any claim.
If contribution or indemnity were in and of themselves original claims there would be no necessity to wait until the injured party asserted a claim. In short they are derivative of such original claim and dependent thereon.
In the case before the Greenup Circuit Court, the collateral case to the present claim in the Board, the complaint alleges that the plaintiffs there collided with a tractor trailer operated by Wilds and owned by Warren and/or Porter and that Wilds, Warren and/or Porter are liable because of their negligence. Those defendants (Wilds, Warren and Porter) are the claimants in the Board of Claims. They contend that the accident was really caused by the faulty design of the highway, or at least such faulty design contributed to the cause of the accident and that if they are required to pay the Oneys (plaintiffs in Greenup Circuit Court) they should collect such from the Commonwealth.
Should the Greenup Circuit Court decide that the owners and driver of the tractor trailer were not at fault or that the plaintiffs there were solely at fault then claimants in the Board of Claims would have no claim against the Common-wealth. They would not have to pay and thus seek recovery for those payments. Thus, these claimants claims are dependent on establishment of loss to another - the original plaintiffs in the Greenup Circuit Court.
Now the original plaintiffs could sue the Commonwealth in the Board of Claims, but the owners and driver of the tractor trailer's claim for transferring the original loss to the Commonwealth is a derivative, dependent claim, and that is a claim upon which the Commonwealth of Kentucky has not waived its sovereign immunity [KRS 44.070(1)].
Therefore, a claim for contribution or indemnity is no longer cognizable under the 1986 Board of Claims Act and such a claim should be dismissed.
The claimants so dismissed can appeal such dismissal and litigate the issue on appeal in the court on this question.