Vermont Bar Journal, Vol. 40, No. 2 Winter 2016, Volume 41, No. 4 | Page 24

Sellers Beware tion as set forth in § 23 is the doctrinal justification for limiting a seller’s right of indemnity to instances of purely vicarious liability as set forth in § 22. The Court in Heco hitched its wagon to § 22 and abandoned the differential-fault concept of indemnity without addressing (and perhaps without realizing) the broader doctrinal implications of such a major jurisprudential shift. The Court also did not signal any intention of recognizing a right of contribution consistent with the comparative fault regime that figures so prominently in §§ 22 and 23 of the Third Restatement. Although the Court could create a common law right of contribution in a future case, this would obviously require judicial intervention in an area the Court has repeatedly characterized as an exclusively legislative domain. As things stand at present, “passively” negligent sellers have no right of contribution or indemnity. As a result, Vermont is now even further removed from the comparative-fault principles that have dominated the legal landscape in most other jurisdictions for the last half century. Conclusion Heco is now the law in Vermont but the law has yet to be fully explained.33 The Court has, perhaps accidentally, placed itself on a collision course with an outmoded no-contribution rule of its own making. After Heco it has essentially three options: (1) recognize a right of contribution as a necessary counterpart to the Third Restatement’s core indemnity principle it has now adopted in product defect cases; (2) declare its application of the Third Restatement’s indemnity rule in Heco a misadventure and resurrect the more robust differential-fault indemnity doctrine that provides some modicum of protection for defendants in no-contribution jurisdictions; or (3) reaffirm Heco and become perhaps the first American court in modern history to prohibit contribution across the board and limit indemnity to vicarious liability claims only. The path of the law in this area has not yet been decisively cut, but the Heco decision does not bode well for sellers exposed to negligence claims in connection with the sale of defective products. Under Heco they may be forced to foot the entire bill for injuries caused by defects they had no hand in creating. The Third Restatement instructs that contribution is the preferred and most equitable method for allocating liability among joint tortfeasors who are at fault (albeit in varying degrees) for an injury or loss. It may be time for the General Assembly to try its hand at hammering out a comprehensive contribution scheme in an effort to bring some much needed clarity, predictability, and fairness to a murky and topsy-turvy jurisprudence. 24 ____________________ Andrew Beerworth, Esq., is a director with the Burlington-based firm of Paul Frank + Collins P.C. The author would like to thank Robert G. Cain, Esq. for the valuable input and comments he provided throughout the composition of this article. ____________________ 2015 VT 3. 42 Vt. 343 (1869). 3 132 Vt. 434 (1974). 4 132 Vt. at 435-46. 5 Id. at 437-48. 6 Levine v. Wyeth, 183 Vt. 76, 102 (2006). 7 Hay v. Medical Center Hosp. of Vermont, 145 Vt. 533, 544 (1985). 8 Heco v. Midstate Dodge LLC, 2013 WL 2155550 at * 6-7 (Vt.Super. May 15, 2013) (Crawford, J.) (“The rule prohibiting contribution among joint tortfeasors is primarily a rule which permits the plaintiff to select and limit the parties named to the lawsuit … Only in the case of an indemnity claim is the plaintiff’s autonomy less than complete … Authority to decide who remains in the lawsuit is redistributed which is why the indemnity claim is described as an exception to the rule against contribution”). 9 Levine, 183 Vt. at 101-02 (pointing out that some jurisdictions reduce verdicts by the dollar amount of the plaintiff’s settlement with a third party (pro tanto approach) whereas others require a reduction based on the percentage of the settling party’s fault (proportional share approach) or require that verdicts be divided equally among all joint tortfeasors regardless of relative degrees of fault (pro rata approach)). 10 Diamond v. Chakrabarty, 447 U.S. 303, 317 (1980). 11 Restatement (Third) of Torts: Apportionment Liab. § 23 (2000), Reporters’ Note, cmt. a (explaining that most states have statutes allowing contribution, many of which are modeled on the Uniform Contribution Among Tortfeasors Act); but see, e.g., Estate of Dresser v. Maine Medical Center, 960 A.2d 1205, 1207 (Me. 2008) (recognizing common law right of contribution as “an equitable right founded on acknowledged principles of natural justice” that ensures “fairness between joint torfeasors whose negligence caused a third party harm”). 12 7 V.S.A. § 501(f); Swett v. Haig’s Inc., 164 Vt. 1, (1995) (holding that § 501(f) of the Dram Shop Act explicitly creates a right of contribution and, therefore, displaces common law rule in cases that come within its scope). 13 Knisely v. Central Vermont Hosp., 171 Vt. 644, 646 (2000) (“The right to indemnity is an exception to the longstanding rule in Vermont barring contribution among joint tortfeasors”). 14 Bardwell Motor Inn, Inc. v. Accavallo, 135 Vt. 571, 573 (1977); Chapman v. Sparta, 167 Vt. 157, 159 (1997). 15 White v. Quechee Lakes Landowners’s Ass’n, Inc., 170 Vt. 25, 28-29 (1999). 16 Id. at 29. 17 Knisely v. Central Vermont Hosp., 171 Vt. 644, 646 (2000). 18 Morris v. American Motors Corp. 142 Vt. 566, 575 (1982)(holding that seller is vicariously liable for defective product made by another simply for holding product out as its own). 19 Zaleskie v. Joyce, 133 Vt. 150, 157 (1975) (recognizing that the seller of a defective product has an implied indemnity claim against manufacturer who created the defect because the parties in such cases are “not in equal fault”); Morris v. American Motors Corp. 142 Vt. 566, 576 (1982) (holding that assembler manufacturer held strictly liable for defective product was entitled to implied indemnity from component manufacturer 1 2 THE VERMONT BAR JOURNAL • WINTER 2016 that made the defective part). 20 Heco v. Foster Motors, 2015 VT 3, ¶ 2. 21 Id. at ¶ 3. 22 See gen \