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MURPHY PAC. CORP. v. WESTINGHOUSE ELEC. CORP.

September 13, 1971

MURPHY PACIFIC CORPORATION, Plaintiff,
v.
WESTINGHOUSE ELECTRIC CORPORATION, Defendant


Beeks, District Judge.


The opinion of the court was delivered by: BEEKS

This case was submitted for decision upon the agreed facts and exhibits set forth and described in the pretrial order on file herein.

 Both parties were subcontractors of Howard S. Wright Construction Company (Wright), general contractor for the construction of the Seattle-First National Bank Building. Defendant Westinghouse Electric Corporation (Westinghouse) agreed to indemnify Wright from claims arising out of its performance of its subcontract, and plaintiff Murphy Pacific Corporation (Murphy) agreed to indemnify Wright from claims arising out of its negligent acts. Karnatz, an employee of Westinghouse, was severely injured by a fall after having been struck on the head by a two-by-four which had been dislodged several stories above by an employee of Murphy. A suit brought in state court by Karnatz against Wright and Murphy was settled by Murphy, who took a release of Karnatz's claim against Wright and Murphy and filed this action. Murphy predicates recovery on two theories: equitable contribution, or, in the alternative, subrogation, which will be considered in reverse order.

 Murphy asks to be subrogated to the position of Wright in order to enforce the Wright-Westinghouse indemnity agreement. However, there is no evidence from which this Court can find liability or potential liability *fn1" of Wright to Karnatz, and the court will not spin inferences from slender threads of surmise and conjecture. Therefore, even if this court were to put Murphy in Wright's shoes, there would be no obligation of Westinghouse to indemnify. Murphy's contention that it should be subrogated to Wright's claim must fail.

 One additional point should be made. If the Court had found Wright liable to Karnatz and had held that both Westinghouse and Murphy were bound to indemnify Wright, it would have been confronted with the difficult task of dividing the damages in some equitable manner, a task made all the more difficult by the silence of the Murphy-Wright contract as to the division of damages where both parties were negligent. It has been suggested that, as a joint tortfeasor and indemnitee of Murphy, Wright's just share of the settlement costs should be 50% of the amount paid. Murphy argues, therefore, that since Murphy and Westinghouse are co-indemnitors of Wright they should divide equally that portion of the settlement costs allocable to Wright. That would result in Murphy paying 75%, and Westinghouse 25%. While this may be an imaginative proposal, innovation is no substitute for equity. This court would be more disposed to apply the doctrine of comparative negligence. United States v. Seckinger, 397 U.S. 203, 90 S. Ct. 880, 25 L. Ed. 2d 224 (1970). However, there is nothing in the record from which the quantum of fault, indeed, whether any fault at all, could be attributed to Wright.

 Murphy's additional contentions fail because it was, at all times material an active tortfeasor.

 Accordingly, the action will be dismissed, with costs to defendant. Defendant's counsel is directed to prepare findings of fact, conclusions of ...


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