policy for a greater proportion of such loss than the applicable limits of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss." The policies, therefore, are concurrent and each will share equally in the loss since in this instance both companies have limits of $100,000.00 applicable to the Landfried claim.
Since the question of damages was reserved for determination after the coverage issues were resolved, the case will be placed on the trial list for final adjudication. At that time the Court will pass upon the reasonableness of the settlement and cost of defense. [EDITOR'S NOTE]: The following court provided text does not appear at this cite in 348 F. Supp.
MEMORANDUM AND ORDER
The parties have advised the Court that all issues in this case have now been settled with the exception of the cross claim asserted by Federal Laboratories against Borough of Leetsdale, Michael Poninsky, and the respective liability carriers.
Federal Laboratories was one of several defendants in the suit brought to recover damages for severe personal injuries sustained by the minor, Joseph H. Landfried. After a conciliation conference in the Court of Common Pleas of Allegheny County, Federal Laboratories paid $170,000.00 to the Landfrieds and secured a pro rata release in accordance with the provisions of 12 Purdon's Statutes § 2085. This release purported to effect the interest only of Federal Laboratories. Thereafter, the defendants, Borough of Leetsdale and Michael Poninsky, settled with the Landfrieds for $125,000.00 also on a pro rata release basis.
Federal now argues that since its payment of $170,000.00 was more than its proportionate share of the total paid of $295,000.00, it should be entitled to recover contribution from the Borough and Poninsky or the respective liability carriers.
Motions for dismissal on the basis of failure to state a claim upon which relief can be granted have been filed. We hold that the cross claim must be dismissed.
While it is not necessary that the claim of the Landfrieds had to have been reduced to judgment, see Swartz v. Sunderland, 403 pa. 222, 169 A. 2d 289 (1961), Federal has failed to establish a legal basis for its claim.
12 Purdon's Statutes § 2083(2) reads:
"A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof; (3) A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement."
While it may be conceded that Federal has paid more than its pro rata share, it has not satisfied the second requirement, namely, that of extinguishing a common liability. It is clear that when Federal settled with the Landfrieds, it extinguished no one's liability but its own. As the commissioners in their comments to the Uniform Act state:
"But suppose the settling tortfeasor has purchased only his own immunity from suit, taking a covenant not to sue from the injured person, so that the other tortfeasors are still liable to the injured person. In such a case there is no reason to permit contribution since the settling tortfeasor has removed no burden common to all or more than one of the tortfeasors."
An appropriate Order will be entered.
AND NOW, to-wit, this 6 day of November, 1972, IT IS ORDERED that the cross claim filed by the Federal Laboratories, Inc. is dismissed for failure to state a claim upon which relief can be granted.
The Court having been advised that all other matters and disputes between the parties have been settled, as to the remainder of the issues involved in this litigation, this case is dismissed with prejudice.