IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 96,784
DODGE CITY IMPLEMENT, INC.,
and
JUSTIN L. SLATTERY,
Appellants,
v.
THE BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF BARBER
and
THE MOORE TOWNSHIP, BARBER COUNTY, KANSAS,
Appellees.
SYLLABUS BY THE COURT
1. An appellate court's standard of review when a motion to dismiss has been treated as a motion for summary judgment matches that for summary judgment generally: Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. In a case involving no factual dispute, the appellate court's review is unlimited.
2. Kansas law requires defendants seeking to minimize their liability in comparative fault situations not involving a chain of distribution or similar commercial relationship to do so by comparing the fault of other defendants in order to reduce their own share of liability and damages. If a defendant chooses to settle and obtain release of common liabilities involving other parties whom the plaintiff did not sue, the defendant does not have an action for comparative implied indemnity or postsettlement contribution. Under Kansas comparative fault procedure, such a remedy is not necessary, and such an action defeats the policy of judicial economy, multiplying the proceedings from a single accident or injury.
3. Letters failing to identify the correct claimants, to give their addresses, to set forth the name and address of their counsel, and failing to state the extent of damages sought do not substantially comply with the notice provisions of K.S.A. 2008 Supp. 12-105b(d).
Review of the judgment of the Court of Appeals in 38 Kan. App. 2d 348, 165 P.3d 1060 (2007). Appeal from Barber district court; ROBERT J. SCHMISSEUR, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Opinion filed April 24, 2009.
Mark A. Buck, of Fairchild & Buck, P.A., of Lawrence, argued the cause, and Clinton W. Lee, of the same firm, was with him on the briefs for appellants.
Stephen M. Kerwick, of Foulston Siefkin LLP, of Wichita, argued the cause and was on the briefs for appellee Board of County Commissioners of Barber County.
Edward L. Keeley, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and was on the briefs for appellee Moore Township.
The opinion of the court was delivered by
BEIER, J.: This case arises out of a collision between a Burlington Northern and Santa Fe Freight (BNSF) train and a truck owned by Dodge City Implement, Inc. (DCI). BNSF filed suit in federal court against DCI and its employee driver, Justin Slattery. After that action was settled, plaintiffs DCI and Slattery pursued this suit against defendants Barber County (County) and Moore Township (Township) under negligence and implied indemnity theories because of an alleged failure to construct and maintain a safe grade crossing. The district judge granted defendants' motion to dismiss. We granted plaintiffs' petition for review from a Court of Appeals decision affirming the district court result in Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 38 Kan. App. 2d 348, 165 P.3d 1060 (2007).
The issues before us are two: Did the district judge err in concluding that plaintiffs have no viable cause of action against defendants for comparative implied indemnity? And did the district judge err in concluding that plaintiffs did not substantially comply with K.S.A. 12-105b(d)?
Factual and Procedural History
The accident that led to this appeal occurred on September 8, 2003. The following February, BNSF filed suit against DCI and Slattery in the United States District Court for the District of Kansas.
Approximately 2 months later, the parties entered into a Mutual Release and Settlement Agreement under which DCI and Slattery paid $3 million to settle BNSF's claims "against all parties and persons." DCI and Slattery expressly reserved any right they had "to make a claim against or sue Barber County, Kansas, and/or any person or entity, other than [BNSF] . . . for comparative implied indemnity and any other cause of action that may exist under Kansas law."
On August 23, 2004, counsel for DCI and Slattery sent a letter to the Barber County Clerk on behalf of their insurer, Continental Western Insurance Company, which purported to serve as a notice of the insurer's claims under K.S.A. 12-105b(d).
DCI and Slattery filed this suit against Barber County in June 2005. Their petition alleged that the County was responsible for maintaining the grade crossing and traffic controls at the site of the accident, that a warning sign was absent at the time of the accident, that earthen obstacles and vegetation obscured visibility, and that the angle of the road and an excessively short highway approach created a dangerous condition for crossing vehicles. The petition purported to include causes of action based on negligence, negligence per se, comparative implied indemnity, and implied indemnity. Plaintiffs later filed an amended statement of damages reflecting the $3 million settlement amount paid to BNSF plus $92,313.34 for damages sustained by DCI and Slattery.
The County answered, substantially agreeing with the factual allegations of DCI and Slattery but asserting that (1) the doctrine of implied comparative indemnity was inapplicable because the County was not a party to the federal lawsuit and no product's chain of distribution was involved in this action; (2) the doctrine of implied indemnity was inapplicable because there was no legal relationship between the County and the plaintiffs that obligated plaintiffs to enter into a settlement agreement and the plaintiffs were not without fault; and (3) it was immune under the Kansas Tort Claims Act. The County subsequently filed a K.S.A. 60-212(b)(6) motion to dismiss plaintiffs' claims of comparative implied indemnity and implied indemnity for failure to state claims upon which relief could be granted.
On September 9, 2005, DCI and Slattery sought to join the Township as a defendant, claiming discovery had revealed the Township bore responsibility for designing, constructing, maintaining and controlling the roadway and grade crossing at issue. Plaintiffs maintained that an August 12, 2005, letter, sent by plaintiffs' counsel to the clerk and trustee of the Township, provided sufficient notice of their claims under K.S.A. 12-105b(d). This letter was nearly identical to the letter sent to the County a year earlier.
The district judge heard the parties' arguments on the County's motion to dismiss on November 14, 2005, and took the matter under advisement. The judge granted plaintiffs' motion to join Moore Township on December 28, 2005, and the plaintiffs filed an amended petition including the Township as a defendant on the same day.
The County and the Township each filed an answer to the amended petition. The County maintained its affirmative defenses and asserted that the Township had jurisdiction over the portion of the road where the accident occurred. The Township asserted: (1) The August 12, 2005, letter did not constitute substantial compliance with the notice requirements of K.S.A. 12-105b(d), therefore depriving the district court of subject matter jurisdiction over plaintiffs' claims against it; (2) plaintiffs' claims were barred by applicable statutes of limitations, statutes of repose, and laches; (3) plaintiffs' claims of negligence, negligence per se, comparative implied indemnity, and implied indemnity failed to state claims upon which relief could be granted; (4) plaintiffs' claims were barred by the one-action or one-trial rule; (5) plaintiffs' claims were barred by the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.; (6) plaintiffs' negligence claims were barred by comparative fault rules; (6) the Township was not negligent; and (6) plaintiffs' claimed damages were overstated and limited by statute.
On February 27, 2006, the Township filed a motion to dismiss. The County supplemented its earlier motion to dismiss, incorporating the arguments and authorities cited by the Township on the K.S.A. 12-105b(d) issue. Thereafter, the district judge heard arguments and ruled for the County and the Township on their pair of motions to dismiss. The judge made the following findings and arrived at the following conclusions:
"1. Defendants' motion to dismiss plaintiffs' comparative implied indemnity claim should be and hereby is sustained on the basis that the defendants herein were not named defendants or joined pursuant to K.S.A. 60-258a(c) in the previous related federal lawsuit brought by Burlington Northern and Santa Fe Railway Co. and that it would be unfair to defendants herein to subject them to allegations of fault now that were not asserted in the federal case. The Court adopts by reference the legal authorities cited by defendants in their brief, including the original and subsequent briefs filed by defendant Barber County.
"2. Defendants' motion to dismiss plaintiffs' negligence and negligence per se claims for property damage in the amount of $92,313.34 should be and hereby is sustained on the basis that plaintiffs' notice of claim filed with defendants did not substantially comply with K.S.A. 12-105b(d) regarding this claim and therefore the Court lacks jurisdiction over it.
"3. Defendants' motion to dismiss plaintiffs' implied contractual indemnity claim should be and hereby is sustained on the basis of the legal authorities cited in defendants' briefs."
The district judge treated the motions to dismiss as summary judgment motions, considering materials beyond the pleadings. See Perry v. Board of Franklin County Comm'rs, 281 Kan. 801, 806-07, 132 P.3d 1279 (2006).
Plaintiffs appealed the dismissal of their $3 million comparative implied indemnity claim as barred by the "single action" rule and the dismissal of their negligence and negligence per se claims as barred by failure to comply with the notice statute. They did not appeal the dismissal of their implied indemnity claim.
A panel of our Court of Appeals affirmed, Dodge City Implement, Inc., 38 Kan. App. 2d 348, closely examining several of our prior cases, including Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985); Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982); and Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). The panel concluded that
"[A] defendant seeking to minimize its liability in a comparative fault situation not involving a chain of distribution or similar commercial relationship must do so by comparing the fault of other defendants pursuant to K.S.A. 60-258a in order to reduce its own share of liability and damages. If the defendant chooses to settle and obtain a release of common liabilities involving other parties whom the plaintiff did not sue, the defendant does not have an action for comparative implied indemnity or post-settlement contribution for damages caused by other tortfeasors." Dodge City Implement, Inc., 38 Kan. App. 2d 348, Syl. ¶ 1.
The panel also evaluated the letters sent to the County and the Township under K.S.A. 2006 Supp. 12-105b(d) and concluded they were fatally insufficient to support the negligence and negligence per se claims for more than $92,000. In the panel's view, the letters failed to indicate, as required, the name and address of the claimants or the claimants' attorney, the nature and extent of the injuries claimed, and the amount of damages sought. This conclusion led the panel to affirm the district judge's dismissal of these two claims. Dodge City Implement, Inc., 38 Kan. App. 2d 348, Syl. ¶ 2.
On petition for review, plaintiffs argue that the panel's analysis of its comparative implied indemnity claim was inconsistent with post-Ellis and Teepak cases eroding the one-action rule and that the panel improperly required strict, rather than substantial, compliance with the notice provision of K.S.A. 2008 Supp. 12-105b(d).
Comparative Implied Indemnity
Our standard of review when a motion to dismiss has been treated as a motion for summary judgment matches that for summary judgment generally:
"'"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."' [Citations omitted.]" State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
In this case, there is no factual dispute and our review is unlimited. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
The Kansas Legislature's 1974 adoption of comparative negligence, embodied in K.S.A. 60-258a, abolished joint and several liability and replaced it with proportional, or comparative, liability, in which the loss is borne by each tortfeasor in proportion to his or her share of the total fault. K.S.A. 60-258a(d); Brown v. Keill, 224 Kan. 195, 203-04, 580 P.2d 867 (1978).
K.S.A. 60-258a(c) contains a joinder provision, which states:
"On motion of any party against whom a claim is asserted for negligence resulting in . . . personal injury, property damage or economic loss, any other person whose causal negligence is claimed to have contributed to such . . . personal injury, property damage or economic loss, shall be joined as an additional party to the action."
The intent and purpose of the statute was "to impose individual liability for damages based on the proportionate fault of all parties to the occurrence." Brown, 224 Kan. at 207.
To meet this objective, this court interpreted the joinder provision to encompass even the joinder of immune, unknown, and unavailable tortfeasors, stating in 1978:
"After having answered the preliminary questions and having applied the rules of statutory construction previously set forth in this opinion we conclude the intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault." Brown, 224 Kan. at 207.
The principal argument of plaintiffs DCI and Slattery in this appeal is that, despite the language of K.S.A. 60-258a and the broad interpretation given it in Brown, the fault of the County and the Township need not have been subject to comparison in BNSF's federal lawsuit in order for the plaintiffs, as settling defendants, to seek indemnity from the County and the Township in this second action.
The chain of precedent upon which DCI and Slattery rely extends back to 1980, when this court decided Kennedy, 228 Kan. 439. In that case, landowners whose cattle died from arsenic poisoning sued the City of Sawyer (Sawyer) and a Sawyer city councilman who were responsible for spraying herbicide along a fence separating Sawyer's land from the plaintiff landowners' pasture. The defendants filed a third-party complaint against the distributor of the herbicide; the distributor, in turn, sought recovery from the manufacturer. Motions for summary judgment and to dismiss the distributor and manufacturer were filed, and the district judge ruled that indemnity was unavailable as a matter of law on these facts. The judge did not mention the comparative negligence statute, and comparative negligence principles played no part in the decision.
Sawyer and the city councilman appealed the district judge's dismissal of the third parties. While the appeal was pending in the Court of Appeals, Sawyer settled the landowners' claim, and the district judge dismissed the underlying case with prejudice. In its ultimate opinion, the Court of Appeals addressed the comparative negligence statute, but it affirmed the district judge's dismissal of the third parties under law predating the statute.
In this "awkward position," this court took up Sawyer's petition for review. Sawyer claimed that it should have been permitted to join the third parties–either to allocate fault under the comparative negligence statute or to secure indemnification because the third parties were strictly liable for harm caused by their product.
This court framed the issue as: "[W]hether comparative negligence principles should be applied to a product strict liability action and whether indemnity might be recovered," but it noted that the settlement of the plaintiff landowners' claim made the "comparative negligence questions secondary to the indemnity issue." Kennedy, 228 Kan. at 448.
Despite this order of priorities, the court began its analysis by agreeing with the Court of Appeals that "the doctrine of comparative fault or comparative causation should be and is applicable to both strict liability claims and to those claims based on implied warranty in products liability cases." Kennedy, 228 Kan. at 452. The court held that the statutory adoption of comparative negligence
"abrogat[ed] the concept of indemnification based on the dichotomy of active/passive negligence as conceptualized in [the case law relied on by the district court to dismiss the third-party claims]. In actions where comparative negligence is in issue the court deals in percentages of causal responsibility, . . . and the all or nothing concepts [of indemnification] are swept aside." Kennedy, 228 Kan. at 453.
Still, because plaintiffs, as part of their settlement with Sawyer and the city councilman, released any and all parties who might have contributed to the plaintiffs' damages, they could have no recovery against third parties. Kennedy, 228 Kan. at 453.
The Kennedy court then moved to the controlling question of whether Sawyer and the city councilman could nevertheless seek indemnification from the third parties. The court observed: "Traditional implied indemnity, such as that sought by the city in this case, implies a shifting of 100% of a loss from the indemnitee to the indemnitor," whereas "'contribution' . . . contemplates a shift of only part of the loss to another." Kennedy, 228 Kan. at 454 (citing Cullen v. Atchison, T. & S. F. Rly. Co., 211 Kan. 368, 375, 507 P.2d 353 [1973]; Prosser, Handbook of the Law of Torts § 51, p. 310 [4th ed. 1971]). Claims of indemnity are either express, i.e., "when there is an express contract of indemnity, such as a 'hold harmless' agreement," or implied, i.e., "when one is compelled to pay what another party ought to pay," because of a legal relationship, such as respondeat superior. Kennedy, 228 Kan. at 455. The court recognized that traditional implied indemnity was all or nothing, a very "'blunt instrument' for reallocating loss," and that comparative negligence promised relief from the inadequacies of that instrument. 228 Kan. at 456.
The court continued:
"[T]o satisfy the legislative intent of encouraging resolution of all issues in a single action, the comparison of fault of all wrongdoers should be effected in the original action. [Citation omitted.] It must be recognized that the procedural mechanism of K.S.A. 60-258a(c) exists to facilitate joinder (and hence comparison) of all potential wrongdoers and may supersede the third-party mechanism which formerly provided the only means for securing a consideration of the fault of a wrongdoer who plaintiff chose not to sue. The maintenance of a claim by plaintiff against a joined party is not a prerequisite to securing comparison. [Brown,] 224 Kan. 195, Syl. ¶ 6. It would appear, however, that the formal 'joinder' mechanism of K.S.A. 60-258a(c) evidences a legislative intent to allow a defendant to force comparison of his fault with that of a third party. This court has not, however, viewed the invocation of formal joinder as a necessary prerequisite to effecting comparison of fault [citation omitted], and this court has recognized that the comparative negligence statute is silent as to what position the added party occupies once that party is joined.
"We conclude that now is the proper time under the facts of this case to adopt a form of comparative implied indemnity between joint tortfeasors. When as here a settlement for plaintiffs' entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.
. . . .
". . . In the present case where the amount of the damages [was] not fixed by judicial proceedings, but by compromise and settlement between plaintiff and defendants, it will be the duty of the defendants to bring into the action all tortfeasors against whom comparative liability through indemnity is sought. Reasonable damages if less than the settlement figure should be judicially determined. If the reasonable amount of the damages is determined to be more than the settlement figure, all tortfeasors will receive the benefit of the bargain struck by the settling tortfeasor. The apportionment should be accomplished in the action which was pending between plaintiff and defendants when the compromise and settlement is accomplished. If a settlement has been made for all liability arising from the occurrence before a comparative negligence action has been filed, the settling tortfeasor may then and in that event file an action in court to have the degrees of responsibility among joint tortfeasors determined, damages assessed and apportionment decreed among them.
"In such a case it would appear that the amount the defendant or defendants have paid in full settlement of plaintiffs' claim would be the maximum amount subject to be apportioned. In any action where apportionment of responsibility is sought by a settling tortfeasor he or she will be required to establish the reasonableness of the amount of the settlement, and that he or she had an actual legal liability he or she could not be expected to successfully resist." (Emphasis added.) Kennedy, 228 Kan. at 460-61.
The next case in the relevant chain of precedent was decided a year after Kennedy, and it lacked the straddle across statutory change that made Kennedy awkward. In the case, Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981), a driver injured in a motor vehicle accident sued the other driver in state court. The jury allocated 40 percent fault in the accident to the plaintiff and 60 percent to the defendant and set damages at $275,000. After the judgment was satisfied, the plaintiff brought a second suit in federal court against Volkswagenwerk Aktiengesellschaft (Volkswagon), the manufacturer of his vehicle, alleging strict liability for injuries and damages caused by its defective product. When Volkswagon moved for summary judgment, the federal district court certified the following question to this court:
"'Having once obtained a satisfied judgment for a portion of his injuries in a comparative negligence action, may a plaintiff bring an action to recover damages for the remaining portion of his injuries against a defendant not a party to the first action, such second action being based on strict liability in tort?'" 230 Kan. at 369.
This court answered the question "no." 230 Kan. at 374. The court noted its earlier ruling in Kennedy but stated:
"The action is over. Volkswagen could have been sued in state court but plaintiff chose not to join the corporation for strategic reasons. Albertson is bound by that decision. Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible. Those not joined as parties or for determination of fault escape liability." Albertson, 230 Kan. at 374.
This portion of the Albertson decision often is cited as the genesis of Kansas' judicial one-action rule. See Chavez v. Markam, 256 Kan. 859, Syl. ¶ 3, 889 P.2d 122 (1995); Mick v. Mani, 244 Kan. 81, Syl. ¶¶ 1-2, 766 P.2d 147 (1988); Tersiner v. Gretencord, 17 Kan. App. 2d 551, Syl. ¶¶ 1-5, 840 P.2d 544 (1992), rev. denied 252 Kan. 1094 (1993). In actuality, it is merely a strong reiteration of the expansive joinder language of K.S.A. 60-258a(c).
Our next two cases, Ellis, 231 Kan. 182 and Teepak, Inc., 237 Kan. 320, were consistent with Albertson and explicitly limited the expansive language of Kennedy. Judge Nancy L. Caplinger, writing for the Court of Appeals panel in this case, correctly described their import as follows, and we adopt the panel's analysis:
"Barber County and Moore Township respond that this case is not controlled by Kennedy, but rather by Ellis v. Union Pacific R.R. Co., 231 Kan. 182, wherein they assert the Kansas Supreme Court expressly disapproved application of Kennedy to circumstances similar to those in this case.
"The facts in Ellis are very similar to those here. In Ellis, the plaintiff sued the railroad for damages arising out of a collision between the plaintiff's vehicle and a train. 231 Kan. at 183. Pursuant to K.S.A. 60-258a(c), the railroad joined several governmental entities, including two townships and a county, but the plaintiff did not assert any claims against these entities. The railroad then settled the case with the plaintiff and obtained an agreement from the plaintiff that included a release of the governmental entities and a promise by plaintiff to cooperate with the railroad in the prosecution of any claim for indemnity or contribution. After approval of the settlement, the railroad attempted to pursue a claim in the same action for comparative implied indemnity against the governmental entities. 231 Kan. at 183. The Supreme Court, however, upheld dismissal of the railroad's claim for implied indemnity or contribution, holding that no cause of action was available. 231 Kan. at 191-92.
"The court in Ellis distinguished Kennedy, noting that while Kennedy involved joinder of defendants under K.S.A. 60-214, the case before it concerned joinder of additional defendants pursuant to K.S.A. 60-258a. 231 Kan. at 187-89. The court held that because no party sought recovery against the governmental entities, the railroad could not subsequently recover from the governmental entities even if they were at fault. The court reasoned that had the governmental entities been subject to liability, they might have been subject to contribution. 231 Kan. at 190. Further, the Ellis court noted that Kennedy involved 'indemnification against other parties in the manufacturer's chain of distribution and supply.' Ellis, 231 Kan. at 184.
"Significantly, the Ellis court specifically limited the language in Kennedy which DCI relies upon here. The court stated:
"'Broad language in the Kennedy opinion, 228 Kan. at 460-61, outlining the defendant's role in bringing "into the action all tortfeasors against whom comparative liability through indemnity is sought" goes far beyond the facts of the Kennedy case and is disapproved to the extent that it suggests a defendant can enlarge the liability of other defendants.' 231 Kan. at 191.
"Further, the court in Ellis clarified the nature of the cause of action which the settling defendants might have had if they had met the 'procedural prerequisites':
"'The relief granted by this court, in light of the facts in the Kennedy case and the interplay of principles of comparative negligence, indemnity, and settlement, was termed an action for comparative implied indemnity. We recognize the term is not appropriate to the case at bar in which post-settlement contribution, rather than indemnity, is at issue. However, while proportional contribution is a more appropriate term in the instant case, we have no desire to belabor that distinction and cloud the issue before us which concerns procedural prerequisites to any claim for post-settlement proportional payment, regardless of the nomenclature used.' 231 Kan. at 184.
"Here, as in Ellis, DCI is actually seeking proportional post-settlement contribution rather than comparative implied indemnity from the governmental entities. And, like Ellis, regardless of the nomenclature used, it appears the procedural prerequisites to post-settlement proportional payment were not met as Barber County and Moore Township were not subject to liability in the previous action. In fact, this case arguably presents a stronger case for denial of post-settlement contribution than Ellis, as DCI did not seek to j