Opinion
No. 2 CA-CIV 5488.
November 27, 1985. Review Denied April 8, 1986.
Appeal from the Superior Court, Maricopa County, Cause No. C-481783, Edward C. Voss, III, J.
Gust, Rosenfeld, Divelbess Henderson by Richard A. Segal, and Brian Holohan, Phoenix, for plaintiff/appellant.
Fennemore, Craig, von Ammon, Udall Powers by Calvin H. Udall, and Reed C. Tolman, Phoenix, for defendant/appellee.
OPINION
Defendant, Trico International, Inc., designed an irrigation and flood control system for the insured of plaintiff, Transamerica Insurance Company. Flood waters subsequently escaped from that system and the insured was held strictly liable for the resulting damages. Transamerica, as subrogee, now seeks indemnity from Trico on the theory that Trico's negligent design of the system caused the escape of the flood waters. The issue in this case is whether the finding of liability against the insured precludes, as the trial court held, suit against Trico for indemnity. We hold that it does not and reverse.
Indemnity is not a mechanism to defeat the rule, which existed at the time of this loss, that there can be no contribution among joint tortfeasors. If the judgment against Transamerica's insured found the insured actively at fault, then that finding would preclude indemnification. But the judgment was premised on strict liability rather than fault. If passive negligence does not defeat indemnification, a fortiori strict liability does not. Busy Bee Buffet v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957); Estes Co. v. Aztec Construction, Inc., 139 Ariz. 166, 677 P.2d 939 (App. 1983); Sequoia Mfg. Co. v. Halec Constr. Co., 117 Ariz. 11, 20, 570 P.2d 782, 791 (App. 1977); Transcon Lines v. Barnes, 17 Ariz. App. 428, 498 P.2d 502 (1972); Restatement of Restitution §§ 93, 96 (1937).
The judgment is reversed.
HATHAWAY, P.J., and LACAGNINA, J., concur.