Mascarin Professional Pharmacy v. Hart

California Court of Appeal Dec 14, 1970 No. Civ. 36896Published

Before: Kingsley

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Holding. The court held that an action for declaratory relief to determine a duty to indemnify is appropriate while the underlying liability action is still pending on appeal, and that a general allegation of negligence in a prior complaint does not preclude a claim for indemnity if the liability could have been based on respondeat superior.

Issues

Whether an action for declaratory relief is available to determine a duty to indemnify while the underlying liability judgment is pending on appeal.
Whether a general allegation of negligence in a prior complaint bars a subsequent claim for implied indemnity as a matter of law.

Disposition. reversed

Quotations verified verbatim against the opinion

“Until the appeal from the Froschauer judgment has been determined, and that judgment has become final (if that should be its fate), Mascarin has no matured claim for indemnity against Hart.”

“The case is a proper one for the use of the declaratory judgment procedure.”

“It follows that neither the complaint nor the verdict tell whether Mascarin was guilty of any negligence of its own against Froschauer.”

Opinion

KINGSLEY, J.

In April 1968, Barry Froschauser, through his guardian ad litem, brought suit against the present plaintiff (Mascarin), George

[464]

Francis Train and George Train, and sundry Does, alleging negligence

on the part of the defendants in furnishing potassium chlorate to plaintiff, as a result of which he was injured. Defendant Hart was not made a party to that action. The case proceeded to trial, resulting in a verdict for Froschauer in the aggregate amount of $290,000, including a joint and several judgment against Mascarin and the Trains in the amount of $25,000. The Trains have paid their portion of the judgment, leaving an unsatisfied judgment in favor of Froschauer and against Mascarin in the amount of $265,000 together with interest and costs. Mascarin has appealed from that judgment and the appeal is still pending in this district.

Mascarin then instituted the present action for declaratory relief against the present defendant (Hart), .seeking a declaration that it was entitled to indemnity from Hart. The complaint alleges the foregoing facts concerning the Froschauer action, that Hart was an employee of Mascarin, that the negligence involved in the Froschauer action was solely that of Hart and that the recovery against Mascarin was based solely on the theory of

respondeat superior.

Defendant Hart demurred, basing her demurrer on two grounds: (1) that Mascarin was barred from indemnity because the judgment against it was based on its own negligence; and (2) that declaratory relief was improper in that Mascarin’s cause of action (if any) against Hart had already matured. The demurrer was sustained, without leave to amend, “on the grounds stated in the moving papers.” A judgment (order of dismissal) followed, from which Mascarin has appealed. For the reasons stated below we reverse.

It is true, as defendant argues, that one who has a fully matured action at law or in equity cannot secure an adjudication of rights by way of an action for declaratory relief, since all of the issues that could be involved in the declaratory relief action can equally be resolved in the plenary action. But that is not this case. Defendant relies on two cases, neither of which is in point. In

Mascarin Professional Pharmacy v. Hart

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KINGSLEY, J.

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