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Hattersley v. Bollt

decided: February 19, 1975; As corrected.

GEORGE HATTERSLEY AND SUSANNE HATTERSLEY, HUSBAND AND WIFE
v.
THEODORE BOLLT, INDIVIDUALLY AND TRADING AS "NATIONAL PROPERTIES" AND/OR "NATIONAL PROPERTIES, INC." AND INTERNATIONAL PROPERTIES, INC., AND FRED I. LIEBMANN, A.I.A. V. LAZOVITZ, INC. AND UNITED ELEVATOR COMPANY AND THOMAS LINDSTROM & CO. (3RD PTY. DEFTS.) LAZOVITZ, INC., THIRD-PARTY DEFENDANT, APPELLANT IN NOS. 74-1043 & 74-1044



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-1354).

Van Dusen, Hunter and Garth, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from a judgment of contribution*fn1 entered against appellant-third-party defendant, Lazovitz, Inc., and in favor of appellee-third-party plaintiff, Bollt. Bollt, the owner of an office building,*fn2 joined Lazovitz, which was acting as general contractor in the renovation of Bollt's property,*fn3 in a personal injury action brought by Hattersley, an employee of a subcontractor to a subcontractor, and Hattersley's wife.*fn4 Hattersley was injured on September 30, 1970, when he fell into an elevator shaft just as the elevator was passing the floor from which he fell. The elevator was being operated by Daniel Small,*fn5 an employee of Bollt.

Before the case was submitted to the jury, Bollt agreed to pay the Hattersleys $500,000. in damages, should the jury return a verdict for the Hattersleys. Lazovitz neither knew of this agreement nor concurred in it.

The case was submitted to the jury on special interrogatories, pursuant to F.R. Civ. P. 49(a).*fn6 On September 18, 1973, the jury reached a verdict in favor of the Hattersleys, finding both Bollt and Lazovitz negligent. A judgment was filed on November 26, 1973.*fn7

I. Appealability of Judgment Filed November 26, 1973

Appellee Bollt contends that the judgment filed November 26, 1973, was not a final judgment appealable under 28 U.S.C. § 1291 because it "leaves some matter involved in the controversy in the District Court still open for further hearing and determination before the ultimate rights of the parties are conclusively adjudicated . . .." Brief for Appellee at 3.*fn8

The district court entered a "Civil Judgment" phrased in substantially the form prescribed by this court in Smith v. Whitmore, 270 F.2d 741, 746 (3d Cir. 1959).*fn9 In accordance with the jury verdict, Lazovitz was adjudged a joint tortfeasor, liable in contribution to Bollt for any amount which Bollt should pay the Hattersleys "in excess of the sum of two hundred fifty thousand . . . dollars." The district court rejected Bollt's contention that Lazovitz was liable on a contract of indemnification for any amount "over and above the amount which Lazovitz, Inc. might be required to pay by way of contribution . . .." 208a. This judgment does not, in terms, assess the precise monetary amount owed by Lazovitz to Bollt. Moreover, it conditions Bollt's right to payment from Lazovitz upon Bollt's prior payment of the judgment to the Hattersleys. Nevertheless, because the judgment fixes Lazovitz's ultimate liability and clearly establishes the parameters of that liability, it is a final, appealable order.*fn10 The Supreme Court of the United States has emphasized that "the requirement of finality is to be given a 'practical rather than a technical construction.'" Gillespie v. United States Steel, 379 U.S. 148, 152, 13 L. Ed. 2d 199, 85 S. Ct. 308 (1964).

Where the practical effect of a judgment or order is final and only requires a ministerial act to implement it, such judgment or order is appealable under 28 U.S.C. § 1291. Since the effect of this district court judgment settles "the primary issue then existing between the parties," Massachusetts Casualty Ins. Co. v. Forman, 469 F.2d 259, 260 (5th Cir. 1972), and determines the rights and equities between the parties, it is a final judgment, notwithstanding any provision for future determination of the actual amount of recovery. Durkin v. Mason & Dixon Lines, 202 F.2d 425 (6th Cir. 1953). In Forman, supra, the court held final an order of the district court which enforced a settlement between the insurer and the insured, even though the efficacy of the order "was conditioned on surrender of the policy and delivery of the check." 469 F.2d at 260. Durkin, supra, allowed an appeal under 28 U.S.C. § 1291 from an order which granted recovery in an amount to be later determined. And in Friedman v. Wilson Freight Forwarding Co., 320 F.2d 244, 247 (1963), this court clearly implied that a Smith v. Whitmore judgment effectively determined the parties' rights and was appealable, using, inter alia, this language:

"Steinman's basic legal obligation of contribution had already been properly determined, subject only to the payment of money by Wilson to the plaintiff. All that followed was administration of that basic decision. In this process, different from a trial, the court could assure itself in any reasonable way that Wilson had paid the plaintiff and, therefore, that the matter was ripe for an unqualified order that Steinman reimburse Wilson. The filing of the plaintiff's receipt and release as part of the post-judgment record was a normal and proper way of supplying the court with that assurance.

". . . the judgment was . . at most subject to vacation upon a subsequent showing of mistake [or] misrepresentation . . .."

The judgment now appealed from has determined the rights of the parties by adjudging Lazovitz's status as a joint tortfeasor and Bollt's right to contribution from Lazovitz under the procedure used in Friedman. The amount of that liability will be subject to arithmetic computation when Bollt pays more than half the judgment. For example, upon the mere filing of a praecipe evidencing full payment of the judgment, Bollt is entitled to collect from Lazovitz $250,000.*fn11 Where actual payment awaits only a future ministerial order, finality is not lacking. See United States v. 1,431.80 Acres of Land, 466 F.2d 820, 822 (8th Cir. 1972). Since Bollt's claim against Lazovitz has thus been effectively established "both as to liability and as to amount," the judgment is a final one.*fn12 Cf. United States v. Estate of Pearce, 498 F.2d 847, 848-49 (3d Cir. 1974).

We recognize that a subsequent appeal is possible under the procedure contemplated by Friedman, supra, challenging a district court ruling on an allegation that the praecipe containing a representation of payment by the third-party plaintiff is inaccurate.*fn13 However, we believe such appeals are unlikely and will be infrequent. Any departure from the strictest construction of "final decisions" appealable under 28 U.S.C. § 1291 may encourage parties to appeal from orders of barely arguable finality. Multiplications of such appeals would doubtless result in much "useless expenditure." 9 J. Moore, Federal Practice, P 110.12 at 152 (2d ed. 1973). We are, however, of the opinion that, in this situation, the possibility of such appeals is outweighed by "the danger of denying justice by delay." Dickinson v. Petroleum Conversion Corporation, 338 U.S. 507, 511, 94 L. Ed. 299, 70 S. Ct. 322 (1950).

If this appeal is disallowed, Lazovitz will be unable to raise the issues which it urges here until such time as Bollt files a praecipe and sues on the resulting judgment against Lazovitz as third-party defendant. The Hattersleys have at least 20 years to collect their judgment from Bollt. If we hold the "Civil Judgment" non-final, Bollt would presumably have another 20 years to seek contribution from Lazovitz.*fn14 The time thus elapsing prior to a final ruling in this court on the issues determined by the district court judgment could easily be lengthy. Such a delay could result if the Hattersleys dallied in seeking to collect their judgment, if they were unable to collect it speedily, or if Bollt were to pay in installments over a period of years. Lazovitz's ability to raise its defense against Bollt in a trial granted years later as a result of such a delayed appeal would be handicapped with the passage of time and the consequent loss ...


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