Opinion

Royal Indemnity Co. v. Aetna Casualty & Surety Co.

  • 193 Neb. 752
  • 229 N.W.2d 183
  • 1975 Neb. LEXIS 1057
Court
Nebraska Supreme Court
Filed
May 15, 1975
Status
Published
Author
Spencer
On the bench
White, Spencer, Boslaugh, McCown, Newton, Clinton, Brodkey
Cited by
44 cases
Authority
More cited than 12.9%

Disagreed with in part by Markvicka v. Brodhead-Garrett Co., 76 F.R.D. 205 (1977)

"[I]n this jurisdiction there is no absolute bar to contribution among negligent joint tortfeasors; and also, as in this case, that a right to equitable contribution exists among judgment debtors jointly liable in tort for damages negligently caused."

How later courts described this case

  • "[I]n this jurisdiction there is no absolute bar to contribution among negligent joint tortfeasors; and also, as in this case, that a right to equitable contribution exists among judgment debtors jointly liable in tort for damages negligently caused."
  • applying equitable subrogation to insurers sharing a common duty
  • changing former rule of no contribution

Written by the judges who cited it.

Later courts went against this

  • Disagreed with in part by Markvicka v. Brodhead-Garrett Co., 76 F.R.D. 205 (1977)

    Co., supra, contain language inconsistent with the rule announced herein, they are overruled.
    District Court, D. NebraskaSep 13, 1977in partRead it

The opinion

Spencer, J.,

dissenting.

I respectfully suggest that the majority opinion ignores the rule of stare decisis and invades the legislative arena.

Whatever doubt there may have been as to the scope of the rule in this state regarding the right of contribution among negligent joint tort-feasors, the matter was resolved and laid to rest by this court in the case of Tober v. Hampton (1965), 178 Neb. 858 , 136 N. W. 2d 194 , and in the subsequent case of Farmers Elevator Mut. Ins. Co. v. American Mut. Liability Ins. Co. (1969), 185 Neb. 4 , 173 N. W. 2d 378 . Those cases recognized and stated the rule in Nebraska to be that there is no contribution between negligent joint tort-feasors.

Approximately 20 years ago an attempt was made to change this rule legislatively. The effort failed. So far as I have been able to determine, the rule has been changed in 28 jurisdictions. In 23 of them it was done *768 legislatively, and only in 5 was it done by judicial decision. It occurs to me that those of us who denounce the attempts by the legislative branch of government to encroach into the executive and the judicial areas should exercise restraint by practicing what we preach. This was a proper area for legislative consideration. I refuse to join my colleagues in encroaching into the legislative arena.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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