Ford Motor Co. v. Robert J. Poeschl, Inc.

Opinion

FRIEDMAN, Acting P. J. Through this indemnification suit Ford Motor Company seeks to shift the cost of a personal injury settlement to the dealer and the leasing agency who placed an allegedly unsafe automobile in the hands of the customer.

Gist of Ford’s complaint is that it sent to its dealers a notice requesting the recall of certain 1964 Thunderbird automobiles (designated by number) in order to have the rear brake light serviced; that, despite the recall notice, one of the listed Thunderbirds leased to a customer by defendants was involved in an accident allegedly caused by the very brake light defect described in the recall notice; that Ford paid $72,000 to settle litigation instituted by the injured parties against Ford, the dealer and the leasing agency; that the latter two parties refused to contribute to the settlement.

The trial court held that Ford’s second amended complaint failed to state a claim for relief and sustained a general demurrer without leave to amend. Ford has appealed from the ensuing judgment.

The parties entered into no contract to indemnify. Ford’s claim is thus hinged to the principle of implied indemnity, which permits one of two tortfeasors to shift the entire loss to the other when, without active fault on the claimant’s part, he has been compelled by reason of some legal obligation to pay damages occasioned by the immediate fault of the other. As a rough rule of thumb, the decisions allowing indemnity speak of the “passive” fault of the claimant as compared with the “active” fault of the indemnitor. Standing alone, the passive-active fault criterion is too vague to serve as a decisional guide. The standard most frequently applied by the California appellate courts is one drawn from an opinion of the Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, 366 Pa. 322, 325-326 [77 A.2d 368, 24 A.L.R.2d 319]: “The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. . . . The difference between primary and secondary liability is not based on a difference in [697]degrees of negligence or on any doctrine of comparative negligence,—a doctrine which, indeed, is not recognized by the common law. ... It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. . . . But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.”1