Section 20 Same or Separate Action

• Library: Damages 2012

In Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. banc 1982), before the adoption of comparative fault principles, the Supreme Court held that defendants may seek contribution from other potentially responsible parties in the lawsuit brought by the plaintiff or in a separate action. The Court noted that Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466
(Mo. banc 1978), did not limit the right of contribution to the procedural vehicles of a third-party petition or a cross-claim. Safeway, 633 S.W.2d at 729. Instead, the Court stated that Whitehead recognized the existence of a substantive right to contribution. Id. The Court reasoned that it is joint liability and not joint judgment that is the necessary prerequisite to contribution. Id. at 730. Accordingly, the Court recognized that a third-party plaintiff has a substantive right to contribution that can be asserted independently in a separate suit after judgment against the third-party plaintiff has been rendered. Id. at 731.

But the Supreme Court of Missouri stated in Gustafson v. Benda,
661 S.W.2d 11, 15 (Mo. banc 1983), that expansion of comparative fault as first enunciated in Whitehead is in the best interest of all litigants. Referring to comparative fault...