Beruflich Dokumente
Kultur Dokumente
2d 133
1984 A.M.C. 2576
4 claim for indemnity, however, requires that an actual liability be sustained by the
A
indemnitee, and if he settles a claim without a determination of the rights in
question, he bears the risk of proving an actual liability in the action over for
indemnity. In failing to establish a lack of due diligence the [indemnitee herein]
failed to establish a right to indemnity based on an actual liability on its part.
5
The Toledo, 122 F.2d 255, 257 (2d Cir.1941) (citations omitted). Some courts
have adopted an exception to the general rule and allow the indemnitee, who
settles with the injured party, to secure indemnification upon a proof of only
potential liability to the injured party. This reduced proof is conditioned on the
indemnitee offering adequate measures to protect the interests of the indemnitor
before any settlement is reached. See Parfait v. Jahncke Service, Inc., 484 F.2d
296 (5th Cir.1973), cert. denied, 415 U.S. 957, 94 S.Ct. 1485, 39 L.Ed.2d 572
(1974).
This court has yet to rule on the issue of whether an indemnitee may, in some
instances, show only potential liability to recover.1 However, we need not
decide the issue today because, even if we were inclined to adopt the potential
liability exception, it would not be applicable to the facts of this case. As noted
by the Fifth Circuit in Parfait, in order to fall within the scope of the exception
the indemnitee must "offer the indemnitor before any settlement is concluded
the choice of (1) approving the settlement or (2) taking over the defense of the
case and agreeing to hold the indemnitee harmless...." 484 F.2d at 305. Here M
& O Marine did neither, nor did it do anything else which afforded Marquette
substantially the same protection. See also Burke v. Ripp, 619 F.2d 354, 360
(5th Cir.1980); Tankrederiet Gefion A/S v. Hyman-Michaels Co., 406 F.2d
1039 (6th Cir.1969). Further, even presuming that the exception were both
adopted and applied, the result arrived at below would not change because M &
O Marine has not shown that the jury erred in reducing the indemnification
request from $77,505.61 to $46,503.40.
7
For the reasons stated above, we will affirm the judgment of the district court in
all respects.
Honorable John W. Peck, of the United States Court of Appeals for the Sixth
Circuit, sitting by designation