Unigard Insurance v. Insurance Co. of North America

FINE, J.

(dissenting). Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d 106 (1963), held that where more than one tortfeasor was liable for a plaintiffs injuries, the plaintiffs settlement with one of the tortfeasors resulted in the non-settling tortfeasors losing their rights of contribution from the settling tortfeasor if the settlement agreement satisfied that portion of the plaintiffs claim attributable to the settling tortfeasor. Thus, any judgment against a "nonsettling defendant should only be for that percentage of negligence allocated to him by the findings or verdict," because "[t]he claim for the balance has been satisfied by the plaintiff' via the settlement agreement. Id., 21 Wis. 2d at 193, 124 N.W.2d at 112. See also Brandner v. Allstate Ins. Co., 181 Wis. 2d 1058, 1061, 1073, 1079 n.13, 512 N.W.2d 753, 755, 760, 763 n.13 (1994). In my view, Pierringer has no application here.

As the majority points out, LeRoy Jenkins' action named three defendants, including Unigard Insurance *89Company's insured, Columbus Electric Manufacturing Company. The companies that installed various component parts in the pool heater were not joined in the action, even though, as the majority notes, the defendants had potential claims for contribution and indemnification against them.

Columbus Electric and Unigard settled with Jenkins before trial. The release:

1. settled Jenkins' claims against Columbus Electric and Unigard;

2. satisfied "that portion of the total amount of damages" sustained by Jenkins "because of the negligence, if any, of [Columbus Electric and Unigard], as may hereinafter be determined to be the case in any trial or other disposition of this or any other action";
3. declared that it was Jenkins' intention "to release and discharge, and [Jenkins does] hereby release and discharge that fraction and percentage of causal negligence found against [Columbus Electric and Unigard], if any, of [Jenkins'] total cause of action and claim for damages as may ultimately be determined by trial or other disposition";
4. provided that Jenkins would indemnify Columbus Electric and Unigard for "any claims for contribution" made by tortfeasors adjudged to be jointly liable with Columbus Electric and Unigard for Jenkins' damages;
5. preserved to Columbus Electric and Unigard their "rights, claims [and] causes of action of any nature they may have against any other person or entity";
*906. preserved to Jenkins his right to assert claims except those specifically released.

This release tracked Pierringer, and extinguished only that portion of Jenkins' claims that was attributable to the negligence of Columbus Electric. See Brandner, 181 Wis. 2d at 1073, 512 NW.2d at 760. It did not, and could not by its terms, extinguish claims of Columbus Electric and Unigard against the installers. Accordingly, I respectfully dissent, and would remand to the trial court for resolution of the other issues raised by the parties, but not addressed by either the trial court or the majority opinion, and for which the summary-judgment methodology appears to be inappropriate.