Franklin v. Morrison

RODOWSKY, Judge. This multiple party tort action arises out of a tragic automobile accident in which a mother and her two children were killed. A jury in the Circuit Court for Prince George’s County awarded substantial damages. The only non-settling defen ¹⁴⁷ dant is the petitioner, Michael Franklin (Franklin), who was found to be liable.

We granted his petition for certiorari in order to consider three issues which we rephrase as follows: 1. Was Franklin entitled to get to the jury on his cross-claim for indemnity against one of the settling defendants who was also found to be liable? 2. Should the jury have been advised, as requested by Franklin, of the existence and terms of the joint release purchased by all of the defendants other than Franklin? 3. How is the credit against the verdict to be determined under the terms of the instant joint release where the total consideration paid by the releasees is greater than the pro rata share of the only releasee that was found liable?

Because a motion for judgment at the close of all of the evidence was granted on Franklin’s cross-claim for indemnity in favor of the alleged indemnitor, we describe the happening of the accident under the evidence most favorable to Franklin. On December 24, 1992, Franklin took his 1992 Chevrolet S-10 Blazer (the Blazer) for routine servicing to a Beverly, Massachusetts Jiffy Lube owned and operated by a franchisee, Lube 495, Inc. (Jiffy Lube), one of the respondents. The servicing required a Jiffy Lube technician to remove the rear differential check plug, in order to check and, if necessary, replenish the lubricant level, and then to replace the plug. The technician either failed to replace or improperly replaced the check plug, causing the differential fluid to escape in a gradual, undetectable manner over the next several weeks.

The lack of fluid to lubricate the gears and bearings within the differential eventually results in the gears and bearings melting, fusing together, and breaking off due to excessive friction and heat. This process causes a seizing of the rear differential and completely disables a vehicle from moving. Franklin had experienced no mechanical difficulty with the Blazer since its servicing until shortly before noon on Saturday, January 16, 1993. At that time Franklin was driving on Route 50 in Prince George’s County at highway speed in the middle of the three westbound lanes.

He heard a gear ¹⁴⁸ grinding noise emanating from the Blazer’s undercarriage. The noise temporarily ceased, but then resumed, accompanied by a violent shaking of the Blazer and a burning smell. Franklin first tapped his brakes to disengage the cruise control and thereafter continued to “tap” his brakes to maintain control of the Blazer. He unsuccessfully attempted to drive the Blazer to the right hand shoulder of the highway through “light ... spotty type traffic.” The Blazer decelerated rapidly and steadily until it came to a complete stop in the center lane.

At trial Franklin was asked: “After you knew there was a problem, could you have gotten through traffic?” He responded: “No, I couldn’t because the vehicle was quickly decelerating and as I looked to the right hand side to try and pull over there was heavy traffic in that lane.” When the vehicle had stopped, Franklin placed the gearshift in park. At his urging his wife exited from the passenger side of the Blazer. Franklin released the rear lift gate of the Blazer by way of a button located on the dashboard, locked the doors by pressing an automatic control button, exited from the driver’s side of the vehicle, retrieved his dog from the back of the vehicle, leashed the dog, closed the rear lift gate, and made his way safely to the side of the road with his wife. Franklin testified that while on the side of the road he waved his arms in an effort to alert oncoming traffic to the presence of the disabled Blazer.

Darlene Morrison, the wife of respondent Glenn A. Morrison (the Plaintiff), was traveling behind Franklin in a 1990 Dodge Minivan occupied by her two minor children, Justin and Andrea. Mrs. Morrison was able to bring her vehicle to a stop immediately behind the Blazer. With her brakes depressed, she tried but was unable, due to passing traffic, to change lanes and get around the disabled Blazer. 1 A tractor trailer driven by Dale Mettenbrink and owned by National ¹⁴⁹ Carriers, Inc. (collectively, National Carriers) crested an upgrade in the center lane of westbound Route 50 and plowed into the back of Darlene Morrison’s minivan. 2 The tractor trailer dragged the minivan several hundred feet, causing it to burst into flames. Darlene Morrison and her two children were burned to death.

Post-accident investigation of the Blazer revealed that, although the rear differential check plug was missing, there was no damage to the hole threads, indicating that the check plug had not been dislodged on impact, but rather had not been properly replaced. Franklin testified that, at the time of the accident, he was completely unaware of what caused the Blazer to be disabled. It had operated normally since its servicing at Jiffy Lube, and Franklin did not observe any leaking. An expert called by Franklin testified that differential fluid evaporates in a mist and does not leak visibly.

Similarly, Franklin did not observe the fact that the check plug, which is located within the vehicle’s undercarriage and which can only be reinstalled using a wrench, was either missing or improperly replaced. The instant suit was brought by the Plaintiff, individually and as personal representative of the estates of his wife and children. Franklin, Jiffy Lube, and National Carriers were named as defendants. The defendants filed cross-claims against each other for indemnity and contribution.

On August 31, 1995, about one month before trial, the court and Franklin were advised that the Plaintiff had reached a settlement with Jiffy Lube and National Carriers (the settling defendants). The general terms of the then unsigned agreement were placed on the record. Under the agreement, all of the Plaintiffs claims against the settling defendants were ¹⁵⁰ released in consideration of a payment of $3.7 million. The “Release and Indemnity Agreement” was executed on September 25, 1995, the first day of trial.

Relevant to the questions presented to this Court are the following terms of the agreement: • In consideration of the payment of $3.7 million by the settling defendants to the Plaintiff, the latter agreed to release the former from any and all claims arising out of the January 16,1993 automobile accident; • The Plaintiff agreed to indemnify and hold the settling defendants harmless from “cross-claims, claims for contribution or claims for indemnity” arising from the Plaintiffs claims, including any such claims asserted against the settling defendants by Franklin; • The settling defendants agreed to permit the Plaintiff to contact and utilize any experts that the former had retained and to cooperate with the Plaintiff in the prosecution of his claims against Franklin. • The release also provided: “This Release is not a joint tortfeasor release. “This Release does not and shall not bar any cause of action, right, lien or claim arising from [the automobile accident] which [the Plaintiff] may now have or may in the future have against any alleged tortfeasor or any entity or person not specifically named herein or released hereby. However, in order to avoid inconvenience and expense to the settling defendants herein, [the Plaintiff] agreefs] that, in the event that settling defendants or any of them is determined by the Court or jury to be a joint tortfeasor, then in that event, this Release shall serve to reduce any recovery of [the Plaintiff] which may be had against any other alleged tortfeasors to the extent of the pro-rata share recoverable by law from settling defendants herein, or to the extent of the amount paid for this Release by settling defendants herein, whichever is greater, in accordance with the provisions of the Maryland Uniform Contribution Among Tortfeasors Act. The said reduction effected hereby ¹⁵¹ shall not be construed to affect the recovery in any suit, cause of action or claim in which the settling defendants herein, or any of them, shall not have been adjudged legally liable for contribution.” (Citation omitted). Before trial started the Plaintiff dismissed his claims against the settling defendants. 3 National Carriers did not participate at trial.

Jiffy Lube remained a cross-claim defendant to Franklin’s cross-claim for indemnity and contribution. On the first day of trial Jiffy Lube amended its original cross-claim against Franklin to claim contribution only, rather than to claim both contribution and indemnity. Jiffy Lube continued to assert this amended cross-claim throughout the course of trial. In summary, the three claims remaining at the start of trial were: (1) The Plaintiff v. Franklin (negligence causing deaths and survival actions); (2) Franklin v. Jiffy Lube (cross-claim for indemnity and contribution); and (3) Jiffy Lube v. Franklin (cross-claim for contribution).

Prior to trial Franklin moved to have the existence and terms of the release disclosed to the jury, but the court denied that motion. Just after the jurors were sworn, the court instructed them that the Plaintiff was proceeding solely against Franklin, and that National Carriers was “no longer in the case.” The Plaintiff presented evidence from which the jury could find that Franklin was negligent based on either or both of two omissions: (1) in failing to move the Blazer to a safe location, and (2) in failing to warn approaching motorists of the disabled state of the Blazer. With respect to the issues on ¹⁵² this certiorari review, Franklin defended against the Plaintiffs claims by contending that he was not negligent, and, as to his cross-claim, he contended that his negligence, if any, was merely passive, and that the accident was caused by the active negligence of Jiffy Lube. At the close of the evidence, the trial court denied, inter alia, Franklin’s motion for judgment on his cross-claim for indemnity against Jiffy Lube.

The parties agree that the court also, in effect, granted Jiffy Lube’s motion for judgment in its favor on Franklin’s cross-claim for indemnity against it. Special interrogatories were submitted to the jury. It found that both Franklin and Jiffy Lube were negligent and that their respective negligence proximately caused the accident. The jury further found that any negligence of National Carriers did not proximately cause the accident.

Verdicts for the Plaintiff totaled $10,756,000, which the court later reduced to $6,806,000 pursuant to Maryland’s statutory cap on non-economic damages. See Maryland Code (1974, 1995 Repl. Vol.), § 11-108 of the Courts and Judicial Proceedings Article (CJ). By post-trial motions Franklin unsuccessfully reasserted that the evidence relevant to his claim for indemnity from Jiffy Lube raised a jury question and that the jury should have been furnished with the Release and Indemnity Agreement executed by the other parties.

Franklin also contended that, if he were not entitled to indemnity, the revised verdict of $6,806,000 should be further reduced by $3.7 million under the Maryland Uniform Contribution Among Joint Tort-Feasors Act, now codified as CJ (1997 Cum.Supp.) §§ 3-1401 through 3-1409 (UCATA). Three Million Seven Hundred Thousand Dollars was the total consideration paid to the Plaintiff under the Release and Indemnity Agreement which, in a single document, released all of the settling defendants. Franklin submitted that the amount paid exceeded a pro rata share. In answer, the Plaintiff produced copies of the settlement checks reflecting Jiffy Lube’s having paid $1.3 million of the total $3.7 million. ¹⁵³ The Plaintiff submitted that, inasmuch as the consideration paid by Jiffy Lube was less than Jiffy Lube’s pro rata-share of $3,403,000, the credit against the judgment should be $3,403,-000 under UCATA.

Franklin rebutted by relying on the following language of the release: “[I]n the event that settling defendants or any of them is determined ... to be a joint tortfeasor, then ... this Release shall serve to reduce any recovery ... to the extent of the pro rata share ... or to the extent of the amount paid for this Release by settling defendants herein, whichever is greater, in accordance with [UCA-TA].” The circuit court ruled that $3,403,000, and not $3.7 million, was the applicable credit. Judgment in the amount of $3,403,000 was entered against Franklin. The Court of Special Appeals affirmed in an unreported opinion. That court concluded that Franklin’s claim for indemnity was barred because Franklin was guilty of active negligence as a matter of law, that the release with the settling defendants need not have been disclosed, primarily because Jiffy Lube’s continued participation in the case was required by Franklin’s cross-claim against Jiffy Lube, and that the circuit court , had correctly calculated the extent of the credit under UCATA and the release.

For the reasons set forth below, we shall affirm. I By seeking indemnity in addition to contribution, Franklin seeks to have 100% of the loss borne by Jiffy Lube, despite the jury’s having found that negligence on the part of both Franklin and Jiffy Lube proximately caused the accident. Franklin’s claim for indemnity is not based on any express contract between Franklin and Jiffy Lube. Compare Mass Transit Admin, v. CSX Transp., Inc., 349 Md. 299 , 708 A.2d 298 (1998) (indemnification allowed based on express provisions of contract between the parties).

Franklin, in effect, makes three arguments, or levels of the same argument, in support of indemnity. Before identifying and discussing those arguments, it would be helpful to review indemnity that is not based on an express contract. ¹⁵⁴ A Indemnifications, other than those based on an express contract, “are commonly called quasi contractual, or arising out of a ‘contract implied by law*. Indemnity between persons liable for a tort falls within this type of case.” R.A. Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L.Rev. 130, 146 (1932) (Leflar).

The basis for indemnity between tortfeasors “is restitution, and the concept that one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.” Restatement (Second) of Torts § 886B cmt. c (1979) (Restatement). We shall call this form of indemnity “tort” indemnity. In Maryland and elsewhere, tort indemnity arose in an era when contribution among joint tortfeasors was not permitted. Compare Chesapeake & Ohio Canal Co. v. County Comm’rs of Allegany County, 57 Md. 201, 220-24 (1881) (county held liable for injuries to third party caused by unsafe public roadway on bridge over canal was entitled to indemnity from canal company that created, and should have repaired, the defective condition), with UCATA, first enacted by Chapter 344 of the Acts of 1941.

The Supreme Court of Alaska described the evolution of various applications of tort indemnity in Vertecs Corp. v. Reichhold Chems., Inc., 661 P.2d 619 (Alaska 1983). After pointing out that the earliest applications of tort indemnity were in favor of one whose liability was exclusively vicarious, the court said: “[T]he courts began to discover that the bar to contribution among fault-bearing tortfeasors worked injustice in certain cases. Some courts thus expanded indemnity to include cases in which the indemnitee, while to some degree personally at fault, was much less culpable than the indemnitor. Various appositive phrases arose to describe the situations in which indemnity would be allowed, including ‘primary-secondary negligence,’ ‘misfeasance-nonfeasance,’ and ‘active-passive negligence.’ However, most authorities agree that these phrases were merely labels given to a fact-finding ¹⁵⁵ concept wherein courts allowed total loss-shifting because they felt that justice and fairness so required.” Id. at 621 ; see also Allison v. Shell Oil Co., 113 Ill.2d 26, 29 , 99 Ill.Dec. 115, 117 , 495 N.E.2d 496, 498 (1986) (“With the growth of tort liability for negligent acts, the doctrine of implied indemnity was extended in response to the rule in Merryweather v. Nixan (K.B.1799), 101 Eng.

Rep. 1337, 8 Term R. 186, which prohibited contribution among jointly negligent tortfeasors.... ”). No single definition or rule of law identifies all instances in which one of two persons, who are liable in tort for the same legally cognizable harm, will be able totally to shift the loss to the other party. W.P. Keeton et al., Prosser and Keeton on the Law of Torts § 51, at 343-44 (5th ed. 1984) (Prosser & Keeton), describes the problem as follows: “[I]t is extremely difficult to state any general rule or principle as to when indemnity will be allowed and when it will not. It has been said that it is permitted only where the indemnitor has owed a separate duty to the indemnitee; that it is based on a ‘great difference’ in the gravity of the fault of the two tortfeasors; or that it rests upon a disproportion or difference in character of the duties owed by the two to the injured plaintiff.

Probably none of these is the complete answer, and, as is so often the case in the law of torts, no one explanation can be found which will cover all of the cases.” (Footnotes omitted). Many courts and commentators agree. See, e.g., Vertecs Corp., 661 P.2d at 624 (“The attempt to manufacture standards for decision and the resulting labels of ‘active-passive’ or ‘primary-secondary’ negligence left the indemnity jurisprudence of many states in disarray.”); Taggart v. State, 45 Cal.App.3d 768, 770 , 119 Cal.Rptr. 696, 698 (1975) (“ ‘[Fjormalizations [such as active versus passive] have been criticized as being artificial and as lacking the objective criteria desirable for predictability in the law.’ ” (quoting General Elec. Co. v. State of Cal. ex. rel.

Dep’t of Pub. Works, 32 Cal.App.3d 918, 922 , 108 Cal.Rptr. 543, 545 (1973))); Allison, ¹⁵⁶ 99 Ill.Dec. at 119 , 495 N.E.2d at 500 (“ ‘All attempted definitions of active-passive negligence break down in application.’ ” (quoting N.J. Bua, Third Party Practice in Illinois: Express and Implied Indemnity, 25 DePaul L.Rev. 287, 314 (1976))); Dole v. Dow Chem. Co., 30 N.Y.2d 143, 147 , 331 N.Y.S.2d 382, 386 , 282 N.E.2d 288, 291 (1972) (“The ‘active-passive’ test to determine when indemnification will be allowed by one party held hable for neghgence against another negligent party has in practice proven elusive and difficult of fair application.”); Restatement § 886B cmt. c (“Expressions such as active and passive neghgence or primary and secondary responsibility, while somewhat descriptive of certain specific instances, have not covered all of them or have proved misleading in some applications.”); E.E. Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L.Rev. 517, 544 (1952) (“The truth of the matter is that no mere word formula can be a satisfactory test on which to base all decisions as to whether or not indemnity should be awarded.”); W.P. Keeton, Contribution and Indemnity Among Tortfeasors, 27 Ins. Couns.

J. 630, 632 (1960) (“My judgment is that none of the rules that have received currency as a basis for creating an obhgation of indemnity as between neghgent tortfeasors are reliable____”); Leflar at 155 (referring to “[t]he uncertainty and unreality of a distinction between active and passive neghgence as a test of the right to indemnity”). For these reasons Restatement § 886B, deahng with indemnity between tortfeasors, simply sets forth in subsection (2) the “established applications” of the general principle of unjust enrichment set forth in subsection (1). Restatement § 886B cmt. c. Restatement § 886B reads as follows (with examples in the accompanying footnotes): “(1) If two persons are hable in tort to a third person for the same harm and one of them discharges the liability of both, he is entitled to indemnity from the other if the other would be unjustly enriched at his expense by the discharge of the liabihty. “(2) Instances in which indemnity is granted under this principle include the following: ¹⁵⁷ “(a) The indemnitee was liable only vicariously for the conduct of the indemnitor;[ 4 ] “(b) The indemnitee acted pursuant to directions of the indemnitor and reasonably believed the directions to be lawful;[ 5 ] “(c) The indemnitee was induced to act by a misrepresentation on the part of the indemnitor, upon which he justifiably relied; [ 6 ] “(d) The indemnitor supplied a defective chattel or performed defective work upon land or buildings as a result of which both were liable to the third person, and the indemnitee innocently or negligently failed to discover the defect; [ 7 ] ¹⁵⁸ “(e) The indemnitor created a dangerous condition of land or chattels as a result of which both were liable to the third person, and the indemnitee innocently or negligently failed to discover the defect;[ 8 ] “(f) The indemnitor was under a duty to the indemnitee to protect him against the liability to the third person.” [ 9 ] Against the foregoing background, we shall consider Frank- lin’s arguments in ascending order of generality.

They are that the jury could find that: 1. Jiffy Lube created a dangerous condition of chattels so that Franklin is entitled to indemnity under the rule of Restatement § 886B(2)(e); 2. Jiffy Lube’s negligence was active, while Franklin’s negligence was passive; or 3. Jiffy Lube’s negligence was disproportionately greater than that of Franklin. 10 B In support of his first argument Franklin cites two trial court decisions from New York, Corso v. Maroney, 57 Misc.2d ¹⁵⁹ 898, 293 N.Y.S.2d 863 (Sup.Ct.1968), and Lipsman v. Warren, 17 Misc.2d 807 , 188 N.Y.S.2d 426 (Sup.Ct.1959), aff'd as modified, 10 A.D.2d 868 , 199 N.Y.S.2d 761 (Sup.Ct.1960).

Both cases involve automobile accidents in which a claim was made against the operator of a vehicle, as defendant, by a plaintiff who was not a guest of the defendant. Both cases involve a third-party claim against a mechanic whose allegedly negligent repair of the brakes on the defendant’s vehicle had proximately caused the accident. The New York courts held that if the defendant had no notice or knowledge of the defective brakes, indemnity would lie against the third-party defendant, but that, if the operator did have notice or knowledge of the defect, then both the operator and the mechanic would be actively negligent and there could be no indemnification. Inasmuch as there would be no liability of the defendant to the plaintiff, absent some negligence on the part of the defendant, these cases illustrate the view that passive negligence on the part of the defendant does not bar indemnification. 11 In the case before us Restatement § 886B(2)(e) and the New York decisions are not relevant to the theory of liability which was presented by the Plaintiff to the jury and which presumably was the basis for finding Franklin negligent.

That theory bases liability on Franklin’s conduct after he knew of the defect in the Blazer. The Plaintiff did not contend that Franklin should have discovered the defect earlier than its manifestation some 2100 feet in advance of the place where the accident occurred. Disclaiming that the case was about rear axles and differentials, the Plaintiff submitted that the question of Franklin’s negligence turned on what he had done or failed to do while the Blazer was traveling 2100 feet to the place where it stopped. The Plaintiff argued: ¹⁶⁰ “Did he ever flash his lights to let cars that were going beside him know that he was having trouble with his car?

No. Did he honk his horn to let cars know that there was something wrong with his car? No. Did he so much as even turn on a turn signal to let somebody somewhere know that he wants to get out of the lane that he’s in? No. He didn’t do any of that. Is that reasonable?

No.” Franklin also relies on Restatement of Restitution § 93 (1937), which states a rule for indemnity substantially similar to that in § 886B(2)(e) of the Restatement (Second) of Torts. Consequently, the former is not applicable to the instant matter for the same reasons that the latter is not applicable. C The instances listed in Restatement § 886B, in which indemnification is generally recognized as available, are not exclusive. Tort indemnity may properly be available under the general principle of avoiding unjust enrichment.

It is difficult, however, to decide deductively from that principle the merits of Franklin’s claim that his negligence should be considered passive while that of Jiffy Lube should be considered active. See Part I.A, supra. Nevertheless, guidance can be found in authorities indicating the general limit on the concept of passive negligence and in cases holding that negligence in the operation of a motor vehicle is active negligence. Referring to the rule “that one whose negligence has consisted of mere passive neglect may have indemnity from an active wrongdoer,” Prosser and Keeton state that the rule “has been applied only in situations where one tortfeasor, by active conduct, has created a danger to the plaintiff, and the other has merely failed to discover or to remedy it.” Prosser & Keeton § 51, at 343.

Leflar’s review of the decisions led him to conclude that in cases allowing indemnity on the active-passive distinction in which the active negligence came first and the passive negligence later, the passive negligence “[took] the form of failure to discover and remedy the dangerous situation created by the active negligence.” Leflar at 155. ¹⁶¹ Similarly, Leflar concluded that “other possible instances of joint passive and active negligence, such as cases of concurrent rather than successive negligence, or of failure to remedy an already discovered dangerous condition created by another, are not generally treated as giving rise to a right to indemnity.” Id. at 156 (footnote omitted). Decisions involving motor vehicle accidents are instructive. In Crouch v. Tourtelot, 850 S.W.2d 799 (Mo.1961) (en banc), Crouch had collided with the rear of another car that was ahead of him on a highway. Id. at 801 .

One of Crouch’s front headlights was damaged in the accident, which occurred at dusk or later, but the car was operable. Id. Crouch alighted from the vehicle, leaving it standing in “ ‘the left hand lane.’ ” Id. Several minutes later Brown, driving in the opposite direction, collided with the front of Crouch’s car.

Id. at 802 . Crouch’s passenger sued Brown’s administrator, who thereafter asserted a third-party claim for indemnity against Crouch. Id. at 801-02 . That third-party claim was dismissed on a motion for failure to state a claim.

Id. at 802 . The Supreme Court of Missouri affirmed, saying: “We do not believe that indemnity should be required as between joint tort-feasors involved in a two-car automobile collision on a highway because of supposedly different types or degrees of negligence.” Id. at 807 . In reaching that conclusion the Crouch court adopted the analysis applied by a Missouri intermediate appellate court in litigation arising out of a collision between a street car and an automobile in which the street car company sought indemnity from the automobile driver for the claim of a passenger against the company: “ ‘ “Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law ¹⁶² or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.

In the case of concurrent or joint tort-feasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other.” ’ The court declined to base its decision upon ‘a consideration of the disproportionate duties owed by one tortfeasor to the other, where both have breached substantially equal duties owed the injured person * * ” Id. at 805 (quoting State ex rel. Siegel v. McLaughlin, 315 S.W.2d 499, 507-08 (Mo. Ct.App. 1958)). A claim for indemnification arising out of a motor vehicle accident was rejected as a matter of law in Hood v. Dealers Transp.

Co., 472 F.Supp. 250 (N.D.Miss.1979). In that case, the accident occurred when the operator of a pickup truck attempted a left turn and a vehicle operated by the defendant attempted to pass the truck. Id. at 251-52 . A minor child of the truck operator, who was riding as a passenger in the truck, was killed in the accident.

Id. The operator of the truck, alleging that he had given a proper left turn signal, filed suit asserting wrongful death and other claims. Id. The defendant counterclaimed, alleging failure to give a proper turn signal.

Id. at 252 . The court dismissed this counterclaim for indemnification for failure to state a claim. Id. The facts, said the court, created “a classic joint tortfeasor situation” and not one involving active negligence on the part of the counterclaim defendant and passive negligence on the part of the defendant.

Id. The court further said: “When the negligence of two or more persons in the operation of motor vehicles on the highway results in injury ¹⁶³ or damage to a person, it is an unusual case where the negligence causing the injury does not result from the activities of joint tortfeasors as distinguished from an active-passive negligence situation.” Id. In the instant matter the jury found concurrent negligence, and Franklin’s premise is that the negligence of Jiffy Lube is active. Inasmuch as the negligence of Franklin arose out of the operation of his automobile, Franklin’s negligence is also active, as a matter of law.

It is well established under Maryland law that one who is guilty of active negligence cannot obtain tort indemnification. In the older cases the persons whose breaches of duty concurred in injuring the plaintiff were said to be in pari delicto. See Baltimore & Ohio R.R. Co. v. County Comm’rs of Howard County, 113 Md. 404 , 414-16, 77 A. 930, 933-34 (1910); Baltimore & Ohio R.R. Co. v. County Comm’rs of Howard County, 111 Md. 176 , 185-86, 73 A. 656, 658-59 (1909); see also Westfarm Assocs. Ltd. Partnership v.