some basis for their rights to contribution and/or indemnity, there is no blanket preclusion by the LHWCA." Johnson v. National Steel & Shipbuilding Company, 742 F. Supp. 1062, 1067-68 (S.D. Cal. 1990). Thus, while the court dismissed the "unclear" indemnity/contribution theories asserted by these parties in their original cross-complaint, the court allowed cross-claimants 45 days to amend the cross-complaints "with the proviso that the allegations fit the framework described above." Id. at 1068.
The question presently before the court is whether AMCA, Microdot, and CMC (in the proposed amended cross-complaint) have met the courts proviso in the June 4 hearing, namely that these parties find some basis for their rights for contribution and/or indemnity.
The amended cross-complaints allege that NASSCO is liable to third-party defendants under theories of equitable indemnity, comparative indemnity, contribution, implied contractual indemnity, indemnity for breach of independent tort obligation and alternatively, apportionment of employer negligence in their amended cross-complaints.
1. The Effect of Good Faith Settlement in the Jones Act Cases
On February 5, 1991, Magistrate Judge McCue issued recommendations on NASSCO's motion for good faith settlement determination in the five cases where plaintiffs alleged claims against NASSCO under the Jones Act. See Magistrate's Findings of Fact and Recommendations to District Court Regarding Motion of National Steel and Shipbuilding Company for Determination of Good Faith Settlement in Johnson v. NASSCO, No. 87-1361-G (M) (S.D. Cal. February 5, 1991); Miller v. NASSCO, No. 87-1362-G (M) (S.D. Cal. February 5, 1991); Wilson v. NASSCO, No. 87-1363-G(M) (S.D. Cal. February 5, 1991); Starke v. NASSCO, No. 88-1024-G(M) (S.D. Cal. February 5, 1991); and Sumner v. NASSCO, No. 88-1028-G(M) (S.D. Cal. February 5, 1991). Magistrate Judge McCue recommended that this court approve the settlement entered into between plaintiffs in the Jones Act cases and NASSCO as having been made in good faith, and that this court dismiss with prejudice AMCA's and Microdot's cross-claims against NASSCO for equitable indemnity or apportionment, comparative indemnity, and contribution. This court adopted Magistrate Judge McCue's recommendations in an order filed on February 14, 1991. See Order Adopting Magistrate's Recommendations and Dismissing Portions of Cross-Claims in Johnson, Miller, Wilson, Starke, and Sumner. Pursuant to that order, only the claims for implied contractual indemnity and indemnity for breach of independent tort obligation remain.
2. The Amended Cross-Claims
In their claim for implied contractual indemnity, third-party defendants allege that NASSCO "designed, approved, and performed substantial alterations and/or modifications to the subject crane, and had superior knowledge with respect to its operation and capabilities." Third-party defendants also allege that cross-claimants relied on NASSCO to disseminate "warnings, prohibitions, and other safety information" regarding use of the crane to carry personnel, and that by not disseminating these warnings, NASSCO breached their implied contract to cross-claimants to post such warnings. See Microdot, Inc. and Minnesota Liquidating Company Second Amended Cross-Claims, paras. XIII-XVI; AMCA Third Amended Cross-Complaint, paras. 11-15 (using identical language). In their claim for breach of an independent tort obligation, third-party defendants allege that if the relationship between NASSCO and cross-claimants created in cross-claimants a duty to warn, then NASSCO had a corresponding duty of reasonable care and diligence, which translates into a duty to disseminate warnings to crane users, and that NASSCO breached this duty. See Microdot, Inc. and Minnesota Liquidating Company Second Amended Cross-Claims, paras. XVII-XXI; AMCA Third Amended Cross-Complaint, paras. 17-21 (again, using identical language).
This court's language in the order dismissing the previous cross-claims against NASSCO is instructive in determining whether third-party defendants have provided "some basis for their rights to contribution and/or indemnity." See Johnson, 742 F. Supp. at 1067-68. This court made the following observation:
. . . Microdot's contribution and indemnity claims are based at least partially on NASSCO's alleged failure to provide a safe working environment for its employees. This allegation has nothing to do with a duty of care between NASSCO and Microdot and therefore should be dismissed.
Id. at 1068. Unable to discern the theories underlying the cross-claims, this court dismissed all cross-claims. Id. Thus, cross-complaints were required to allege theories of contribution and indemnity without basing these theories on any duty that NASSCO owed its employees. See, e.g., Couch v. Cro-Marine Transport, Inc., 725 F. Supp. 978, 982 (C.D. Ill. 1989) (Section 905(a) of the LHWCA "bars only actions by those seeking to recover through the employee"); Horton v. Sun Exploration and Production Co., 616 F. Supp. 130, 131 (W.D.La. 1985) ("a § 905(a) employer is subject to non-vessel third-party indemnification claims arising out of contract (implied or express) or an obligation in tort between the employer and the third party ") (emphasis in original) (citing Pippen v. Shell Oil Co., 661 F.2d 378, 386-88 (5th Cir. 1981); 2B Larson's Workmen's Compensation Law, § 76.00 at 14-644 (Matthew Bender 1989) (third party action requires breach of an "independent duty toward the third party," or must be based in an "implied promise of indemnity").
Although some courts have commented that a non-vessel third-party may recover indemnity from an LHWCA employer on the basis of an independent duty between the third-party and employer, neither the Ninth Circuit nor other courts have specified what that duty may be. In Roy v. Star Chopper Co., Inc., 442 F. Supp. 1010 (D.R.I. 1977), aff'd, 584 F.2d 1124 (1st Cir. 1978), cert. denied, Star Chopper Company, Inc. v. Roy, 440 U.S. 916, 59 L. Ed. 2d 466, 99 S. Ct. 1234 (1979), a suit in which an injured Massachusetts employee brought suit against the manufacturer of the machine causing the injury, and in which the manufacturer impleaded the employer, the district court evaluated similar cross-claims in light of the exclusive-remedy clause in the Massachusetts Workmen's Compensation Act.
First, the court determined that under the Massachusetts statute,
[even where] the party seeing indemnity uses contract language, if the obligation has its origin "in the injury itself and the circumstances surrounding it, and the liabilities that it creates and the indemnity obligation itself springs exclusively from the comparison of the relationships of the two parties to the injury," it is barred.