Torts: Dismissal of Principal Doesn't Bar Claim v Agent

Jamerson v. Quintero, 673 Ariz. Adv. Rep. 17 (App. D I, November 7, 2013) (J. Johnsen)


Plaintiff slipped and fell on water left on the floor by a janitor at a Coolidge drugstore. She sued the janitor, his employer and the owner of the store, Walgreens. Plaintiff settled with Walgreens at a mediation and dismissed Walgreens with prejudice. The janitor's employer then sought summary judgment arguing that since Walgreens was vicariously liable for the janitor and his employer's negligence, when Walgreens was dismissed this was an adjudication on the merits regarding liability and hence the employer ought to also be dismissed. The trial court granted this motion but the Arizona Court of Appeals reversed and remanded.

First the court acknowledged that because Walgreens has a nondelegable duty to keep its store safe for invitees, it was liable vicariously for the negligence of its agent the defendant employer/independent contractor it hired to clean the store. Likewise, a dismissal with prejudice of the agent would eliminate the claim for the vicarious liability of the principal because dismissal of the agent eliminates the fault to be imputed to the principal. However, because of Arizona's Uniform Contribution Among Tortfeasors Act [UCATA] ARS sec. 12-2501 et. seq., the opposite is not true.

UCATA provides under §12-2504, "a "release or covenant not to sue . . . given in good faith to one of two or more persons liable in tort for the same injury . . . does not discharge any of the other tortfeasors from liability . . . unless its terms so provide, but it reduces the claim against the others to the extent" of the amount paid. UCATA also abolished most of Arizona's preexisting joint and several liability law while retaining joint and several liability of a principal for the acts of its agent. ARS sec. 12-2506 (D)(2). Hence, the court reasoned the legislature must have intended 12-2504 to apply to a joint and several liability claim. As such, a settlement with the principal would not extinguish the claim against the agent, "although any judgment [plaintiff]obtains against [the agent] will be reduced by the amount Walgreen paid in settlement. A.R.S. §12-2504(1). . . . the stipulated judgment in favor of Walgreen represents an adjudication on the merits that Walgreen is not liable for any negligence of [its agent], but it says nothing about whether [the agent] was negligent or whether it may be liable for such negligence. This follows from the principle that although claim preclusion applies to a consent judgment, issue preclusion does not. "

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