Harbison v. Rich Gullet and Sons, Inc.

Filing 169

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Joint Motion to Dismiss McCann Concrete Products, Inc., McDonough-Whitlow, P.C. and Union Electric Company, d/b/a Ameren UE, d/b/a Ameren Missouri (Doc. 160 ) is GRANTED. IT IS FURTHER ORDERED th at all pending contribution claims in this action against McCann Concrete Products, Inc. (Docs. 114 , 118 ) are DISMISSED with prejudice. IT IS FURTHER ORDERED that all pending contribution claims in this action against McDonough-Whitlow, P.C. (Do cs. 115 , 119 ) are DISMISSED with prejudice. IT IS FURTHER ORDERED that McDonough's contractual indemnity crossclaim against McCann Concrete Products, Inc. (Doc. 109 ) is DISMISSED with prejudice. IT IS FURTHER ORDERED that McDonough-Whitlow, P.C.'s crossclaim against Union Electric Company, d/b/a Ameren UE, d/b/a Ameren Missouri (Doc. 109 ) is DISMISSED without prejudice. Signed by Magistrate Judge Shirley P. Mensah on 7/13/15. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED HARBISON,
Plaintiff,
vs.
RICH GULLET AND SONS, INC., et al,
Defendants.

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No. 4:13-CV-1138-SPM

MEMORANDUM AND ORDER
Plaintiff Fred Harbison (“Plaintiff”) and third-party defendants McCann Concrete
Products, Inc. (“McCann”), McDonough-Whitlow, P.C. (“McDonough”), and Union Electric
Company, d/b/a Ameren UE, d/b/a Ameren Missouri (“Ameren”) (collectively, the “Moving
Parties”) have filed a Joint Motion to Dismiss in which they ask the Court to dismiss several
pending claims pursuant to the terms of a Settlement Agreement. (Doc. 160). The remaining
parties in the action filed a response stating that they do not object to the motion. (Doc. 168). For
the following reasons, the motion will be granted.
I.

BACKGROUND
On October 20, 2011, Plaintiff was delivering a heavy piece of concrete vault to a

substation owned by Ameren in St. Louis County, Missouri, when the concrete vault section fell
on his truck and injured him during the unloading process. Plaintiff has asserted negligence
claims against Rich Gullet and Sons, Inc. (“Gullet”), the sub-contractor responsible for
unloading the vault, and McGrath & Associates, Inc. (“McGrath”), the general contractor for the
Ameren site. Plaintiff also filed a workers’ compensation claim against his employer, McCann.
The two defendants in this action, Gullet and McGrath, have since become enmeshed in a

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procedural web of cross-claims and counterclaims with third-party defendants Ameren,
McDonough (the company that provided engineering services with regard to the concrete vault at
issue), and McCann, each seeking contribution and indemnification should Plaintiff ultimately
prevail.
On April 22, 2015, Plaintiff, Plaintiff’s wife, McCann, and McDonough (the “Settling
Parties”) reached a settlement (the “Settlement Agreement”) under which Plaintiff agreed to
discharge McCann and McDonough from liability for his injuries in exchange for $40,000 and
$10,000, respectively. 1 (Doc. 160 ¶¶ 11-12). McCann and McDonough also agreed to dismiss
their claims against each other. (Id. ¶ 12). The Settling Parties notified Gullet, McGrath and
Ameren of the Settlement Agreement and provided them each with a copy on April 24, 2015.
(Id. ¶ 13). Ameren responded that it had no objection and joined the instant motion. (Id. ¶ 15).
Gullet and McGrath (collectively, the “Non-Settling Parties”), however, responded on May 18
that they would neither consent nor object to the Settlement Agreement. (Id. ¶ 16).
On May 22, 2015, the Moving Parties filed the instant motion, asking the Court to (1)
dismiss with prejudice all pending claims for contribution against McCann and McDonough, (2)
dismiss with prejudice McDonough’s contractual indemnity claim against McCann, and (3)
dismiss without prejudice McDonough’s contribution claim against Ameren. On June 19, 2015,
the Non-Settling Parties responded with a statement that they would not object to the instant
motion. (Doc. 168).

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Although Plaintiff does not currently have any claims against McCann or McDonough in the
present action (such claims would divest this Court of its subject-matter jurisdiction by
destroying complete diversity), he had apparently apprised them of his eventual intention to sue
both in an appropriate forum. (Doc. 160 Ex. 1 at 3). Plaintiff had also previously added a claim
against McDonough to this suit (Doc. 22), but it was voluntarily dismissed in order to preserve
the Court’s subject-matter jurisdiction under 28 U.S.C. § 1332. (Doc. 102).
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II.

DISCUSSION
The Court will address separately (A) the Moving Parties’ requests to dismiss the

pending contribution claims against McCann and McDonough and (B) the Moving Parties’
requests to dismiss McDonough’s claims against McCann and Ameren.
A. Contribution Claims Against McCann and McDonough
The Moving Parties first ask that McCann and McDonough be discharged from all
contribution liability based on the terms of the Settlement Agreement. 2 This would mean
dismissing Gullet’s crossclaims against McCann and McDonough (Docs. 114 and 115), as well
as McGrath’s crossclaim against McCann (Doc. 118) and counterclaim against McDonough
(Doc. 119). Neither Gullet nor McGrath objects. Although the Moving Parties have termed the
instant motion a “Joint Motion to Dismiss,” I find that the motion is properly construed as one
for summary judgment. See Tiny Tot Land v. Spalding & Evenflo Cos. Inc., 242 F.3d 830 (8th
Cir. 2001). Summary judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013).
To resolve this motion, the Court must determine whether the Settlement Agreement
erases McCann’s and McDonough’s contribution liability for matters pertaining to this suit.
There is some question about whether Illinois law or Missouri law governs this issue. However,
the Court need not decide that question, because the Settlement Agreement extinguishes
McCann’s and McDonough’s contribution liability under either state’s law.
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The Moving Parties have introduced the Settlement Agreement into the record. (Doc. 160
Ex. 1). By citing to the Settlement Agreement, the Moving Parties carried their burden under
Rule 56(c)(1)(A) to show that there is no genuine dispute of fact as to the existence of a
settlement between McCann, McDonough and Plaintiff. Since the Non-Settling Parties did not
object, there is “no genuine dispute” as to the material fact of whether or not there is a settlement
in place. Fed. R. Civ. P. 56(a).
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1. Illinois Law
The Illinois Contribution Act provides, in relevant part:
(c) When a release or covenant not to sue or not to enforce judgment is given in
good faith to one or more persons liable in tort arising out of the same injury or
the same wrongful death, it does not discharge any of the other tortfeasors from
liability for the injury or wrongful death unless its terms so provide but it reduces
the recovery on any claim against the others to the extent of any amount stated in
the release or the covenant, or in the amount of the consideration actually paid for
it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is
discharged from all liability for any contribution to any other tortfeasor.
740 ILCS 100/2 (emphasis added). The Contribution Act promotes the twin policies of (1)
encouraging settlements and (2) equitably apportioning damages among tortfeasors. Johnson v.
United Airlines, 784 N.E.2d 812, 821 (Ill. 2003). Under the Contribution Act, only a
“good faith” settlement extinguishes the contribution liability of settling tortfeasors. Id. at 818.
Although there is no “single, precise formula for determining what constitutes ‘good faith’
within the meaning of the Contribution Act that would be applicable in every case,” the
requirement is not met when “the settling parties engaged in wrongful conduct, collusion, or
fraud,” or when a settlement “conflicts with the terms of the Act or is inconsistent with the
policies underlying the Act.” Id. (citations omitted).
Illinois courts employ a burden-shifting framework in analyzing whether a settlement
was negotiated in good faith. Johnson, 784 N.E.2d at 820. First, “the settling parties carry the
initial burden of making a preliminary showing of good faith.” Id. In order to meet this burden,
the settling parties must show (at a minimum) that a legally valid settlement agreement exists,
although more may be necessary in a given case to determine whether the settlement “is fair and
reasonable in light of the policies underlying the Contribution Act.” Id. Once that burden is

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satisfied, the burden shifts to the party challenging the settlement to “prove the absence of good
faith by a preponderance of the evidence.” Id.
Here, the Settling Parties have satisfied their burden of making a preliminary showing of
good faith by introducing into the record the Settlement Agreement, under which McCann will
pay Plaintiff $40,000 and McDonough will pay Plaintiff $10,000 in exchange for a release of
liability. These are more than nominal amounts, and the Settling Parties set forth in their motion
reasonable explanations for these amounts. (Doc. 160 ¶¶ 18-20). The Settling Parties further
assert that the Settlement Agreement was made at arm’s length and with experienced Plaintiff’s
counsel. (Id. ¶ 17). The burden then shifts to the Non-Settling Parties to show by a
preponderance of the evidence that the Settlement Agreement was not entered into in good faith.
However, the Non-Settling Parties do not object to the settlement and do not argue that the
settlement was made in bad faith, nor does the Court find any indication of bad faith. The Court
concludes that the Settlement Agreement was entered into in good faith, and that under Illinois
law, McDonough’s and McCann’s contribution liability is extinguished and all contribution
claims against them must be dismissed. See Johnson, 784 N.E.2d 812 (affirming dismissal of
contribution claim pursuant to 740 ILCS 100/2 because settlement between defendant and
claimant was made in good faith).
2. Missouri Law
The outcome would be the same under Missouri law. Missouri’s Contribution statute
provides, in relevant part:
When an agreement by release, covenant not to sue or not to enforce a
judgment is given in good faith to one of two or more persons liable in tort
for the same injury or wrongful death, such agreement shall not discharge
any of the other tort-feasors for the damage unless the terms of the
agreement so provide; however such agreement shall reduce the claim by the
stipulated amount of the agreement, or in the amount of consideration paid,
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whichever is greater. The agreement shall discharge the tort-feasor to whom it
is given from all liability for contribution or noncontractual indemnity to any
other tort-feasor.
Mo. Rev. Stat § 537.060 (emphasis added). This statute furthers the policy of encouraging
settlement by permitting “alleged tort-feasors to buy their peace by good faith settlement with the
claimant.” Lowe v. Norfolk & W. Ry. Co., 753 S.W.2d 891, 891, 894-95 (Mo. 1988); see also
Tiny Tot Land, 242 F.3d at 833 (quoting Lowe, 753 S.W.2d at 895). The good-faith requirement
of section 537.060 applies only to the claimant; it does not require the Court to “delv[e] into the
intent of a joint tort-feasor who settles, even though the intent may be to avoid contribution.”
State ex rel. Sharma v. Meyers, 803 S.W.2d 65, 68 (Mo. Ct. App. 1990).
As discussed above with respect to Illinois law, the Court finds no indication that
Plaintiff did not act in good faith. The Settlement Agreement therefore prevents McCann and
McDonough from being subject to contribution liability under Missouri law, and all contribution
claims against them must be dismissed. See Lowe, 753 S.W.2d 891 (affirming dismissal of thirdparty contribution claims under Mo. Rev. Stat. § 537.060 pursuant to a settlement).
B. McDonough’s Crossclaims Against McCann and Ameren
The Moving Parties also ask the Court to dismiss with prejudice McDonough’s
contractual indemnity crossclaim against McCann (Doc. 109) and to dismiss without prejudice
its contribution crossclaim against Ameren (Doc. 109). The Court construes this as a motion
under Rule 41(a)(2) for voluntary dismissal, which the Court may grant “on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). In view of the fact that the Non-Settling Parties have
not objected to the instant motion, the Court will grant it.

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III.

CONCLUSION
For the foregoing reasons, the Court finds that McCann and McDonough are entitled to

judgment as a matter of law based on the terms of the Settlement Agreement. The Court also
finds that McDonough’s contractual indemnity crossclaim against McCann Concrete Products
and McDonough’s crossclaim against Ameren should be dismissed. Accordingly,
IT IS HEREBY ORDERED that the Joint Motion to Dismiss McCann Concrete
Products, Inc., McDonough-Whitlow, P.C. and Union Electric Company, d/b/a Ameren UE,
d/b/a Ameren Missouri (Doc. 160) is GRANTED.
IT IS FURTHER ORDERED that all pending contribution claims in this action against
McCann Concrete Products, Inc. (Docs. 114, 118) are DISMISSED with prejudice.
IT IS FURTHER ORDERED that all pending contribution claims in this action against
McDonough-Whitlow, P.C. (Docs. 115, 119) are DISMISSED with prejudice.
IT IS FURTHER ORDERED that McDonough’s contractual indemnity crossclaim
against McCann Concrete Products, Inc. (Doc. 109) is DISMISSED with prejudice.
IT IS FURTHER ORDERED that McDonough-Whitlow, P.C.’s crossclaim against
Union Electric Company, d/b/a Ameren UE, d/b/a Ameren Missouri (Doc. 109) is DISMISSED
without prejudice.

Dated this 13th day of July, 2015
/s/ Shirley Padmore Mensah
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SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

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