Contribution Case Analysis

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On top of the reasons given by Justice Prosser in his dissent, the result is problematic in that it creates an absurd inconsistency with other cases involving contribution claims between defendants.

In McGee v. Bates, 2005 WI App 19, 278 Wis.2d 588, 691 N.W.2d 920, an injured party brought suit and obtained default judgment against the lessor of a van involved in an automobile accident. After the plaintiff dismissed the claims against the lessee, the lessor sought contribution from the lessee.

Reversing the circuit court, the court of appeals held that the contribution action could go forward, notwithstanding the failure to the lessor to defend against the original suit against it.

The court held it immaterial that the lessor’s liability was spurred by default. Id., 691 N.W.2d at 924-925.

The doctrine of issue preclusion was not in play in the McGee case; the case only involved application of contribution principles. Thus, nothing in the case at bar directly conflicts with McGee.

Nevertheless, the cases cannot be reconciled in any principled or cohesive way.

Suppose that the doctor in the case at bar had simply refused to answer the complaint, and permitted default judgment to be entered against her. Pursuant to the precedent in McGee v. Bates, she would have been able to pursue a contribution claim against the pharmacy, notwithstanding her total failure to protect her interests.

However, according to the decision in the case at bar, where she did take action to protect her interests — but not strong enough action to satisfy the court — her contribution claim is barred.

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It is absurd that a party who totally fails to protect its interests, and does not even answer a complaint, receives more favorable treatment under the law than a party who does attempt to protect its rights.

Since the decision in the case at bar is not going to be changed by any higher court, it is reasonable to expect that, should the Supreme Court ever consider the holding in McGee, it will overrule that decision.

It is noteworthy that the Supreme Court actually did grant review in McGee. However, just days before oral arguments were to be heard, the petitioner voluntarily dismissed the petition.

So, it is clear that the court considers the issue in McGee worthy of consideration. Parties adversely affected by the precedent in McGee should preserve the issue for appeal, adding the inconsistent reasoning of the court in the case at bar to the list of reasons why certiorari should be granted, and McGee overruled.

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David Ziemer can be reached by email.