Montgomery County v. Parsons Brinckerhoff, Inc. (Cir. Ct. Mont. Cnty.)

Filed: March 22, 2016

Opinion by Michael D. Mason

Holding:  Neither tortfeasor is entitled indemnification by the other in a case where they are concurrent or joint tortfeasors and where each tortfeasor owes a separate duty to the same third party, but there is no legal relationship between the tortfeasors.

Facts:  Parsons Brinkcerhoff, Inc. (“PB”) and Foulger-Pratt Contracting, LLC (“FPC”) were hired by Montgomery County (the “County”) and Washington Metropolitan Area Transit Authority (“WMATA”) to design and supervise the construction of the Silver Spring Transit Center. FPC hired Facchina Construction Company, Inc. (“Facchina”) as the primary concrete subcontractor for the project. The County and WMATA filed suit against PB and FPC, among others, alleging injuries suffered as a result of negligence in the design and construction of the center. The majority of complaints related to concrete work; thus PB filed a cross-claim against Facchina for indemnity.

Analysis:  Because there was no legal relationship between PB and Facchina, the court dismissed PB’s cross-claim against Facchina, finding each party owed a separate legal duty to the County and WMATA. The court, citing the Court of Appeals in Franklin v. Morrison, 350 Md. 144, 162 (1998), stated that “[i]n the case of concurrent or joint tortfeasors, having no legal relationship to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs…no right of indemnity exists on behalf of either against the other; in such a case there is only a common liability and not a primary and secondary one, even though one may have been much more negligent than the other” (emphasis added by the court). Conversely, the court reasoned that a concurrent or joint tortfeasor’s right to indemnity from the other tortfeasor results from the obligations between the tortfeasoers and not from the duty each tortfeasor owes to the injured party. The court, quoting Board v. RTKL Associates, 80 Md. App. 45, 55-56 (1989) followed the reasoning that, “Indemnity requires that, where one of the wrongdoers is primarily liable, that wrongdoer must bear the whole loss. The joint tortfeasoer must have had some sort of relationship prior to the tort which justified the claim for indemnity.” (emphasis added by the court).

The court acknowledged it was possibly that the negligence of PB was minor in comparison to the negligence of Facchina, but that the difference in degree would not justify a claim for indemnity. Any negligence by PB was active, not passive, and therefore PB is not entitled to indemnity by Facchina.

The full opinion is available in PDF.