by Wilton H. Strickland

Upon being named in a lawsuit, a defendant quite naturally and predictably points the finger at someone else. There are various methods for a defendant to shift blame, but one of them is routinely misused and calls for a refresher course: common-law indemnity.

“Indemnity” means having someone else cover the defendant’s monetary damages, something that is most often established by contract (an insurance agreement is a typical example). Even when there is no contract, though, defendants often still assert that someone else should cover their damages. This sort of indemnity is authorized by the common law in narrow circumstances, much narrower than most defendants seem to grasp.

The popular perception is that if someone else is entirely to blame for the harm alleged in a complaint, then that person should be required to indemnify the defendant. This is closely related to the theory of “contribution,” when someone else who is partially to blame is required to contribute his or her fair share to the damages award. As such, it is very common for defendants to make a demand for contribution and indemnity in the same breath, on the belief that this preserves the defendant’s right to shift some or all of the damages to someone else.

This perception is fundamentally wrong, and nine times out of ten there is no legitimate basis to assert common-law indemnity. This is because common-law indemnity is categorically unavailable to a defendant whose liability stems from his or her own alleged conduct, which is the type of conduct most often at issue in a complaint. To pursue common-law indemnity, the defendant must show something unique: that liability stems from an agency/employment relationship with the wrongdoer, a relationship that makes the defendant vicariously liable for the wrongdoer’s conduct despite the defendant’s lack of fault. See Dade County Sch. Bd. v. Radio Station Wqba, 731 So. 2d 638, 643 (Fla. 1999); Fla. Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., 171 So. 3d 194 (Fla. 3d DCA 2015); Marie Deonier & Assocs. v. Paul Revere Life Ins. Co., 2000 MT 238, ¶ 62, 301 Mont. 347, 9 P.3d 622; Rogers v. W. Airline, 184 Mont. 170, 175, 176, 602 P.2d 171, 174 (1979).

To illustrate the point, here is an example of two situations where common-law indemnity does and does not apply:

• A shipping company is sued on the basis of vicarious liability because a company driver ignored a stop sign and collided with a pedestrian. The shipping company has a claim of common-law indemnity against the driver.

• A shipping company is sued for negligent supervision of a company driver who ignored a stop sign and collided with a pedestrian. The shipping company does not have a claim of common-law indemnity against the driver, since the company’s liability (if any) stems from the company’s own negligence.

In other words, it is not enough to say that “it’s someone else’s fault”; instead, common-law indemnity requires saying that “I am legally required to treat someone else’s fault as my own.” If a claim of common-law indemnity lacks this element, a motion to dismiss or for summary judgment is probably a good idea.