Slater v. Central Plumbing & Heating Co.

No

No. 97-625

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 257

297 Mont. 7

993 P.2d 654

BILLY A. SLATER,

Plaintiff and Respondent,

v.

CENTRAL PLUMBING & HEATING COMPANY

and EDSALL CONSTRUCTION COMPANY, INC.,

(AMERICAN STATES INSURANCE COMPANY,

SUBROGEE),

Defendants and Appellant.

_______________________________________

EDSALL CONSTRUCTION COMPANY, INC.,

(AMERICAN STATES INSURANCE COMPANY,

SUBROGEE),

Cross-Plaintiff and Appellant,

v.

CENTRAL PLUMBING & HEATING COMPANY,

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Cross-Defendant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

James R. Walsh, Smith, Walsh, Clark & Gregoire; Great Falls, Montana

For Respondents:

George D. Goodrich, Garlington, Lohn & Robinson, P.L.L.P.;

Missoula, Montana

Submitted on Briefs: January 7, 1999

Decided: October 21, 1999

Filed:

__________________________________________

Clerk

2

Justice Jim Regnier delivered the opinion of the Court.

¶1.Cross-Plaintiff and Appellant, Edsall Construction Company, Inc. (American
States Insurance Company, Subrogee) [hereinafter Edsall] appeals from the August
30, 1996 Order Granting Request for Entry of Judgment and for Attorney Fees Costs
entered by the District Court for the Eighth Judicial District, Cascade County. In its
order, the District Court denied Edsall’s request for a scheduling conference and

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dismissed Edsall’s pending cross-claims with prejudice; and at the same time,
granted Cross-Defendant and Respondent, Central Plumbing & Heating Company’s,
request for entry of judgment against Edsall and request for an award of attorney
fees and costs. The rationale behind the District Court’s order was its belief that our
decision in Slater v. Central Plumbing & Heating Co. (1996), 275 Mont. 266, 912 P.2d
780 [hereinafter Slater I], closed all Edsall’s doors of recovery from Central under
any theory.

¶2.Edsall asks us to consider whether there are remaining cross-claims to be litigated
which were not disposed of in this Court's earlier reversal of summary judgment in
Slater I. We reverse the District Court’s dismissal of Edsall’s pending cross-claims.

FACTUAL BACKGROUND

¶3.We previously considered the merits of the District Court's May 3, 1993, ruling on
summary judgment in Slater I. In that opinion, we provided a statement of the
relevant facts. In summary, we note that Edsall was the general contractor on a
project to construct a commissary building on Malmstrom Air Force Base. Edsall
subcontracted with Central to perform the plumbing work, which included the
installation of floor drains. Central then subcontracted with Building Sprinkler
Company to perform the sprinkler installation. Billy Slater, an employee of Building
Sprinkler Company, was injured in a fall from motorized scaffolding that tipped
over when its wheel broke through a drain cover and lodged in the floor drain. Slater
sued both Edsall and Central.

¶4.This case involves a unique situation in that both the general contractor and the
subcontractor were sued by an injured employee and, in turn, the general contractor
has cross-claimed against the subcontractor for indemnity. The injured employee's
employer, a sub-subcontractor, is not involved in this action because recovery against
the injured worker's employer for damages, indemnification, or contribution is not
permitted under Montana law. See § 39-71-411, MCA; Howard S. Wright Constr. Co.
v. F. E. DeBeer Mechanical Constr. Co., (1979) 185 Mont. 47, 50, 604 P.2d 323, 325.
Section 39-71-411, MCA, states:

[A]n employer is not subject to any liability whatever for the death of or personal injury to
an employee covered by the Workers' Compensation Act or for any claims for
contribution or indemnity asserted by a third person from whom damages are sought on

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account of such injuries or death.

¶5.The record establishes that Slater filed a motion for partial summary judgment
against Edsall in the Eighth Judicial District Court, Cascade County, on February
16, 1990. In his motion, he asked the District Court to declare that Edsall was strictly
liable for his injuries pursuant to §§ 50-77-101 and -104, MCA, of the Montana
Scaffolding Act and to declare that Edsall had violated its own safety standards. On
January 11, 1991, the District Court entered an order and opinion granting Slater
partial summary judgment against Edsall, leaving the issues of causation and
damages for the jury.

¶6.On March 28, 1991, Slater filed a similar motion for partial summary judgment
against Central, alleging that Central also was liable under the Scaffolding Act
because of its contractual obligations with Edsall. On this motion, Slater made
reference to the contract between Edsall and Central, which made Central
responsible for meeting all O.S.H.A. requirements and required Central to furnish
all necessary scaffolding. However, Slater noted that whether the contract required
Central to indemnify Edsall would have to be deliberated between the separate
parties and was of no relevance to his case. On April 26, 1991, the District Court
rejected Slater's attempt to make Central liable for his injuries, stating that Edsall
had a nondelegable duty to provide for the safety of workers and to comply with the
Scaffolding Act. Slater later settled with Central.

¶7.In the events that followed, Slater obtained a judgment on a jury verdict against
Edsall in the amount of $675,000, plus costs. Slater's judgment eventually was offset
in the amount of $49,182 as the result of a pretrial settlement between Slater and
Central. Upon Slater's motion, the District Court certified the judgment as final
pursuant to Rule 54(b), M.R.Civ.P., and Edsall filed a cross-claim against Central
alleging that Central breached its contract in regard to its own safety obligations.

¶8.Edsall then was granted leave to file an amended cross-claim against Central on
September 19, 1991, which delineated four separate claims. In its First Claim, Edsall
alleges Central breached the first paragraph of their contract. In the Second Claim,
Edsall makes a claim against Central for indemnity for Central's negligence based on
the ninth paragraph of their contract. In the Third Claim, Edsall asserts that based
on the District Court's grant of summary judgment against Edsall and in favor of
Slater, Central is liable to Edsall for the relief requested in its cross-claim as a matter

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of law. In its Fourth Claim, Edsall makes a claim for reasonable attorney fees and
litigation expenses in the event of breach based on the third paragraph of the
contract.

¶9.Central moved the District Court for summary judgment on Edsall's Amended
Cross-Claim. Edsall filed a motion for partial summary judgment under the First
Claim of its amended cross-claim involving breach of contract, recognizing that the
claim based on Central's negligence would require a finding of fact that was
inappropriate for summary judgment. In its brief in opposition to Central's motion
for summary judgment, Edsall distinguished the duties Central owed Slater pursuant
to the Scaffolding Act from the duties Central owed Slater based on other theories of
liability and the duties Central owed Edsall under the contract. In response, Central
simply argued that since the District Court had already decided the issue of Edsall's
negligence in the proceeding involving Slater, negligence was no longer an issue.

¶10.On April 18, 1992, the District Court granted partial summary judgment in
Edsall's favor on the basis that Central had breached its contract with Edsall. The
District Court rejected Edsall's argument based on the indemnity clause of the
parties' contract, concluding that it did not cover Edsall's negligent acts. Central's
motion for summary judgment was denied.

¶11.Upon Edsall's subsequent motion for summary judgment as to damages, the
District Court awarded Edsall $630,044.31 in damages, as well as attorney fees and
costs for Central's breach of contract. Final judgment as to damages was entered on
June 13, 1995, from which Central appealed. During these proceedings, American
States Insurance Company, Edsall's insurer, was included as a Defendant along with
Edsall, as its subrogee. Therefore, reference to either Edsall or American States
necessarily includes the other.

¶12.We reversed the District Court's May 3, 1993, summary judgment on the issue of
breach of contract in Slater I. After our reversal, Central filed a motion for judgment
to be entered against Edsall as to attorney fees and costs and filed a memorandum of
costs on appeal. Edsall opposed Central's motion, contending that other issues raised
in its cross-claim were still pending, and filed a motion for a scheduling conference.
In its September 12, 1996 order, the District Court entered judgment in favor of
Central, awarded Central its fees and costs, and dismissed any of Edsall’s additional
cross-claims. The District Court later denied Edsall's motion to reconsider its

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decision. Now, Edsall appeals the District Court's September 12, 1996 order.

STANDARD OF REVIEW

¶13.The standard of review for a district court’s conclusions of law is whether the
court’s interpretation of the law was correct. Carbon County v. Union Reserve Coal
Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citations omitted). We have
previously stated the reasoning behind this standard of review to be as follows:

The reasoning for simply determining if the court's conclusions are correct is that no
discretion is involved when a tribunal arrives at a conclusion of law– the tribunal either
correctly or incorrectly applies the law. For that reason, this Court concludes that our
standard of review relating to conclusions of law, whether the conclusions are made by an
agency, workers' compensation court, or trial court, is whether the tribunal's interpretation
of the law is correct.

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

DISCUSSION

¶14.Edsall included four claims in its amended cross-claim. In the first of these
claims, it asserted that Central should fully indemnify Edsall for its loss because
Central breached the first paragraph of their contract. This paragraph states that
"[a]ll labor employed and equipment used must meet O.S.H.A. requirements and
will be the Subcontractor's responsibility to see that these requirements are met."

¶15.In its second claim, Edsall argued that Central should protect and indemnify it
for the negligence of Central, or those employed by Central or its agents or servants,
pursuant to the ninth paragraph of the contract, which states:

The Subcontractor shall protect and indemnify said Contractor against any loss or
damage suffered by any one (sic) arising through the negligence of the
Subcontractor, or those employed by him or his agent or servants; he shall bear any
expense which the Contractor may have by reason thereof, or on account of being
charged therewith; and if there are any such injuries to persons or property unsettled
for, when the work herein provided for is finished, final settlement between the
Contractor and Subcontractor shall be deferred until such claims are adjusted or

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suitable special indemnity acceptable to the Contractor is provided by the
Subcontractor.

(Emphasis added.) In its May 3, 1993 Memorandum and Order, the District Court
concluded that this claim should fail because Edsall was found to be negligent per se
under the Scaffolding Act, and the indemnity provision above does not clearly and
unequivocally indemnify Edsall for its own negligent acts.

¶16.In the third claim, Edsall asserted that Central was liable to Edsall as a matter of
law pursuant to the final certification of the District Court's January 14, 1991 order
and opinion granting Slater partial summary judgment against Edsall on the issue of
liability. In the fourth claim, Edsall requested reasonable attorney fees and litigation
expenses in the event a breach was found. The third and fourth claims are not
significant to this appeal.

¶17.In Slater I, we reversed the District Court's summary judgment in favor of
Edsall with regard to its breach of contract claim against Central. Slater I, 275 Mont.
at 272, 912 P.2d at 783. We concluded that "[a] violation of the duties imposed by the
Montana Scaffolding Act imposes absolute liability." Based on this conclusion, we
went on to state that "[o]nce the District Court determined that Edsall was liable for
Slater's injuries because of its violations of the Act, American [Edsall] should not
have the opportunity to pin that liability on the subcontractor." Slater I, 275 Mont. at
269-70, 912 P.2d at 782. We also recognized that since Edsall did not appeal from the
judgment finding it was liable for violations of the Act, it was inconsistent for Edsall
to claim that Central breached the subcontract and to assert that the damages it paid
Slater were due to Central's violation of O.S.H.A. rather than Edsall's own violations
of the Act. Slater I, 275 Mont. at 270, 912 P.2d at 782. We stated that to allow Edsall
to recover for breach of contract was, in effect, to grant indemnity to Edsall for its
own violations of the Act. Furthermore, we concluded that since the Act, itself, was
not incorporated by reference into the contract between Edsall and Central, Central
could not have assumed duties under the Act. We also concluded that Edsall could
not be indemnified for its own negligence absent clear and unequivocal language in
the contract. Slater I, 275 Mont. at 270, 912 P.2d at 782. Thus, Edsall was not entitled
to indemnification based upon a breach of contract action. Slater I, 275 Mont. at 272,
912 P.2d at 783.

¶18.In Slater I, our opinion was limited to the following two issues:

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1. Did the District Court err in granting summary judgment to Edsall concluding
that Central breached the subcontract agreement?

2. Did the District Court err in awarding prejudgment interest and attorney fees to
Edsall?

Slater I, 275 Mont. at 267, 912 P.2d at 780. Edsall argues on this appeal, that under
its second claim relating to paragraph "Ninth" of the contract, that Central should
indemnify Edsall against any loss arising out of Central's negligence, remains
unresolved. Edsall contends that the issue of Central's negligence must be
determined by a trier of fact.

¶19.In its brief in support of its motion for partial summary judgment on its
amended cross-claim, Edsall stated that the ninth paragraph of the contract:

[W]ould require Central to indemnify Edsall against the consequences of Central's
negligence. Although we believe that Edsall ultimately is entitled to recover under
this theory, it may be necessary to determine certain facts before that can occur.
Such a determination is inappropriate during these summary judgment proceedings.
For that reason, Edsall is relying at this time principally on its claim for pure breach
of contract. Under this claim, no negligence need be determined . . . .

In response, Central acknowledged that Edsall declined to seek indemnity under the
ninth paragraph of the Edsall-Central contract in its summary judgment motion, but
asserted that the issues of negligence had already been decided. Central's contention
was that since Edsall's negligence was established as the law of the case there was
no longer an issue of negligence to be tried. Specifically, Central stated that since
the indemnity clause, by its own terms, was not invoked when Edsall's negligence
was a factor in the loss, Central was entitled to summary judgment on the question
of indemnity.

¶20.Contrary to this, Edsall noted in its response to Central's motion for summary
judgment that:

The [District] Court's order of April 24, 1991, did not conclude that Central could
not have been negligent toward Slater; only that Central was not directly liable to
Slater under the absolute liability imposed by the Scaffold Act. Plaintiff [Slater] could have

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proceeded against Central upon negligence theories outside the Scaffold Act had he so chosen, but
decided not to assert claims against Central which would allow discussion of comparative
negligence . . . . Similarly the court did not hold Slater was not negligent; only that no affirmative
defenses were available in Slater's Scaffold Act claim against Edsall.

Edsall argued that there were more than adequate grounds to raise a question of fact and for a jury to
conclude that Central was negligent and that that negligence could have been a proximate cause of
Slater’s injuries.

¶21.In its reply brief supporting its motion for partial summary judgment, Edsall
reiterated that its motion did not concern Central's liability for Edsall’s own
negligence. We also find similar language in Edsall's brief in support of its motion for
summary judgment as to damages. Finally, in Edsall's brief opposing Central's
motion for entry of judgment on attorney fees and costs, Edsall maintained that it
moved for summary judgment as to the First Claim only. Furthermore, it stated:

On appeal, the Supreme Court treated the issue in terms of whether Edsall was entitled to
be indemnified for Edsall's own negligence . . . . The issues remaining in the case will . . . be
resolved under the Second Claim of the cross-claims. This claim is grounded primarily on
paragraph Ninth of the subcontract . . . . Rather than claiming indemnity for its own
negligence, as the Supreme Court viewed the matter, Edsall is now claiming indemnity on a
clear provision providing therefor based on Central's negligence. The case also rests upon
the negligence of people working for Central's subcontractors . . . . None of these negligence
issues have ever been presented to, or resolved by, a trier of fact in this case.

(Emphasis added.)

¶22.In essence, Edsall has now posed the question whether a party who has been found negligent
per se can compare its negligence to that of another party. More specifically, we must ask whether
a party who has been found absolutely liable under the Montana Scaffolding Act can share the
liability with another negligent party.

¶23.In its argument, Central first contends that Edsall's cross-claim was made final by our
decision in Slater I. After the District Court's notice of entry of judgment was given in Edsall's
favor against Central, the Montana Supreme Court reversed the District Court's summary
judgment and did not remand for further consideration.

¶24.In Carey v. Wallner (1987), 229 Mont. 57, 60, 774 P.2d 881, 883, we stated that "[o]nce we
order a particular judgment, the lower court has no discretion to alter it." Also, Central cites an
Eighth Circuit Court of Appeals opinion, Walsch Constr. Co. v. United States Guar. Co. (8th Cir.
1935), 76 F.2d 240, 242, in which the court stated that "when an appellate court, finding under the
law that no recovery can be had, uses the word "reversed" without more, this means that the case

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is at an end." However, as Edsall aptly points out, neither of these cases presents a situation
similar to the one before us, where allegedly a separate issue than the one decided was pled but not
litigated and has not already been considered on appeal. In fact, Edsall cites a Montana case in
which this Court stated that "a reversal extends only to those issues which the appellate court
decided in actuality or by necessary implication; it does not affect collateral matters not before the
court." Aye v. Fix (1981), 192 Mont. 141, 146, 626 P.2d 1259, 1262.

¶25.Central next contends that the principals of res judicata should prevent Edsall from
relitigating an issue that has been raised previously. As we well know, the basic proposition
embraced by the doctrine of res judicata is that a party should not be able to relitigate a matter he
or she has already had an opportunity to litigate. See Butler v. Colwell, 1998 MT 241, ¶ 17, 291
Mont. 134, ¶ 17, 967 P.2d 779, ¶ 17; Mills v. Lincoln County (1993), 262 Mont. 283, 286, 864 P.2d
1265, 1267. Once there has been full opportunity to present an issue for judicial decision in a given
proceeding, the determination of the court in that proceeding must be accorded finality as to all
issues raised or which fairly could have been raised, else judgments might be attacked piecemeal
and without end. See Mills, 262 Mont. at 286, 864 P.2d at 1267 (citations omitted).

¶26.In addition to asserting res judicata, Central asserts that Edsall would be violating a
prohibition against splitting a cause of action. We have prohibited parties from splitting causes of
action in order to prevent more than one action arising out of one controversy. See McGinley v.
Maryland Cas. Co. of Baltimore (1929), 85 Mont. 1, 9, 277 P. 414, 417. In Baertsch v. County of
Lewis and Clark (1986), 223 Mont. 206, 209, 727 P.2d 504, 506, we explained that splitting a cause
of action is inextricably related to the principles of res judicata and the application of either
depends upon the existence of a valid and final prior judgment. Thus, we apply the test for res
judicata.

¶27.This test requires us to consider the following four criteria: (1) the parties or their privies are
the same; (2) the subject matter of the claim is the same; (3) the issues are the same and relate to
the same subject matter; and (4) the capacities of the persons are the same in reference to the
subject matter and the issues. See Butler, ¶ 17. The most important of these criteria is the identity
of issues. See Hollister v. Forsythe (1996), 277 Mont. 23, 27, 918 P.2d 665, 667. "Unless it clearly
appears that the precise question involved in the second case was raised and determined in the
former, the judgment is no bar to the record action." Baertsch, 223 Mont. at 210, 727 P.2d at 506
(citation omitted). Under this criterion, we conclude that the doctrine of res judicata and the
prohibition against splitting a cause of action do not prohibit Edsall from going forward on its
indemnity claim. We also conclude that the issue of indemnity based on Central's negligence is not
the same as the issue we previously decided, whether there was an indemnity claim based on
Edsall's negligence or a breach of contract in relation to the safety provisions. Edsall has yet to
have a full opportunity to present the issue of indemnity based on Central's negligence for a
judicial determination.

¶28.This brings us back to the question Edsall poses, whether a party who has been found
absolutely liable under the Scaffolding Act can share the liability with another negligent party.

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First, we do not agree with Central that the law of this case is that Edsall is not entitled to
indemnification from Central for Central's negligence. To the contrary, the District Court's
conclusion that Edsall was liable to Slater gives rise to its indemnity claim. Second, we believe that
a party who has been found absolutely liable under the Scaffolding Act can nonetheless share the
liability with another negligent party.

¶29.To support its position, Edsall relies on the case, Reed v. Little (1984), 209 Mont. 199, 206, 680
P.2d 937, 940, in which we allowed a party who was negligent per se of violating a traffic statute to
use the defense of contributory negligence against the other party. This Court has adopted Reed
only in cases involving traffic-related accidents, however. Today, we have no need to extend Reed.
For purposes of the case sub judice, we need only rely on the indemnity clause found in paragraph
"Ninth" of the contract between the parties.

¶30.We have "long recognized the legality of indemnity clauses and that they should be liberally
construed in favor of the party intended to be indemnified." Lesofski v. Ravalli County Elec. Coop.
(1968), 151 Mont. 104, 107, 439 P.2d 370, 371-72 (citations omitted). In the contract between
Edsall and Central, Central agreed to indemnify Edsall for the negligence of Central, those
employed by Central, or those employed by Central's agent.

¶31.As such, Edsall's claims have been only partially adjudicated. Although the claim Edsall
wishes to pursue arises out of the same transaction or occurrence as the one presented in Slater I,
courts can consider alternative theories of recovery based on the same factual situation. See
Weinstein v. University of Montana at Missoula (1995), 271 Mont. 435, 440, 898 P.2d 101, 104.
Under the general rules of pleading in the Montana Rules of Civil Procedure, parties may demand
relief in the alternative or of several different types in a cross-claim. See Rule 8(a), M.R.Civ.P.
Rule 8(e)(2), M.R.Civ.P., provides that a party may state as many separate claims as the party has.
This is a situation where Edsall pleaded all of its claims to a single court in its cross-claim; it is not
pleading new claims. Cf. Hollister v. Forsythe (1996), 277 Mont. 23, 28, 918 P.2d 665, 668; State ex
rel. Harlem Irrigation Dist. v. Montana Seventeenth Judicial Dist. Court (1995), 271 Mont. 129, 134,
894 P.2d 943, 946.

¶32.Edsall is not seeking indemnity for liability arising from its own negligence. Rather, indemnity
is being sought only for that portion of the liability attributable to Central, its employees or its
agent’s employees. There is a difference between indemnification and contribution.

There is an important distinction between contribution, which distributes the loss among
the tortfeasors by requiring each to pay his proportionate share, and indemnity, which
shifts the entire loss from one tortfeasor who has been compelled to pay it to the shoulders
of another who should bear it instead.

Herington v. J.S. Alberici Constr. Co. (Ill. App. Ct. 1994), 639 N.E.2d 907, 910-11 (citing
Prosser, Law of Torts, § 51, at 310 (4th ed. 1971)). Therefore, to the extent that Edsall seeks

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reimbursement from Central for Central’s negligence under paragraph "Ninth" of the
contract, we conclude that what really is requested is contribution.

¶33.The District Court's final judgment does not preclude Edsall from pursuing a separate claim
for contribution based on Central's negligence under the Second Claim of its amended cross-
claim. Edsall's motion for partial summary judgment that gave rise to Slater I was based on the
First Claim of its amended cross-claim for breach of the first paragraph of the contract. As such,
our opinion in Slater I only precluded indemnification for Edsall's own negligence under a breach
of contract claim. Thus, we conclude that Edsall is free to pursue its remaining cross-claims
against Central.

¶34.Therefore, we reverse the District Court's order dismissing Edsall’s pending cross-claims with
prejudice and granting Central attorney fees and costs, and remand this case for further
proceedings on the remaining claims that were not disposed of in Slater I.

¶35.Reversed and remanded.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

Justice W. William Leaphart, dissenting.

¶36.I dissent. The Court concludes that Edsall does not seek indemnity for liability arising from its
own negligence.

Rather, indemnity is being sought only for that portion of the liability attributable to
Central, its employees or its agent's employees. There is a difference between
indemnification and contribution. . . . Therefore, to the extent that Edsall seeks
reimbursement from Central for Central's negligence under paragraph "Ninth" of
the contract, we conclude that what really is requested is contribution. [Citations
omitted.]

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¶37.After this Court's decision in Slater v. Central Plumbing & Heating Co. (1996), 275 Mont.
266, 912 P.2d 780 (Slater I), the question of whether any portion of the liability imposed upon
Edsall was attributable to Central was rendered res judicata. In Slater I we stated: "The
underlying 'breach of contract' arguably resulted in Slater's injury, an injury that the District
Court already determined was completely attributable to Edsall based on Edsall's nondelegable
duty of safety and Edsall's violations of the Act." Slater I, 275 Mont. at 271, 912 P.2d at 783
(emphasis added). Having determined that the liability was "completely attributable to Edsall"
and was based upon Edsall's violations of its nondelegable duties under the Scaffolding Act, there
is no longer any room for Edsall to argue that some or all of that liability was attributable to
Central's negligence.

¶38.Edsall did not appeal Slater's $675,000 verdict against Edsall nor did it object to Central's
appeal in Slater I on Rule 54, Montana Rules of Civil Procedure grounds that there remained
unresolved issues as to allocating negligence to others, in particular, Central. Instead, Edsall
allowed the Slater I appeal to proceed without disputing the District Court's determination that
Slater's injury was completely attributable to Edsall. The Slater I appeal was resolved on that
basis and Edsall's 100% fault for violating the act "in its own right" is now res judicata. Edsall
cannot now, through indemnity or contribution, seek to delegate to Central some or all of the
nondelegable duty it owed to Slater.

/S/ W. WILLIAM LEAPHART

Chief Justice J. A. Turnage and Justice James C. Nelson join in Justice Leaphart's foregoing
dissent.

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

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