Contribution among Negligent Tortfeasors: The New Rule and Beyond: \u3ci\u3eRoyal Indemnity Co. v. Aetna Casualty & Surety Co.\u3c/i\u3e, 193 Neb. 752, 229 N.W.2d 183 (1975)

In Royal Indemnity Co. v. Aetna Casualty & Surety Co., the Nebraska Supreme Court was presented with an opportunity to determine whether there exists in Nebraska a right of equitable contribution between negligent judgment debtors after one such tortfeasor has discharged either the entire judgment or an amount exceeding his share of such liability. While Royal Indemnity represented only the third instance in the last half century in which this issue was addressed by the Nebraska Supreme Court, this modicum of Nebraska decisional law had, until this decision, been interpreted as prohibiting contribution among joint tortfeasors. Unlike a majority of American jurisdictions that have enacted laws allowing contribution in some degree among negligent tortfeasors, Nebraska has no such statute. The fact that Nebraska\u27s erstwhile rule prohibiting contribution had as its sole precursor the English common law required the Nebraska Supreme Court to review and analyze that common law foundation in addition to relevant Nebraska decisions. In so doing, the court, in an articulate decision authored by Justice Brodkey, placed its imprimatur on the ability of a negligent co-tortfeasor to proceed against other judgment-debtors and seek equitable contribution when he had been forced to discharge more than his proportional share of such liability. While recognizing the valid policy considerations that militate against allowing contribution among intentional or knowing wrongdoers, the court held that those policy considerations were unpersuasive when applied to joint tortfeasors whose liability was occasioned upon acts of mere negligence. This Note reviews the court\u27s analysis in Royal Indemnity and highlights the basis the court used to determine that prior Nebraska case law had erroneously applied relevant common law principles. Finally, there is a discussion of several of the potential defenses that may be asserted to deny a right of contribution and whether such defenses should be sustained in light of the policy reasons underlying the Royal Indemnity decision