                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0537
                             Filed November 26, 2014


MICHAEL HAUT,
     Plaintiff-Appellant,

vs.

TERRY J. FRAZER,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



       Michael Haut appeals from the district court’s summary judgment ruling in

favor of Terry Frazer, concluding Haut’s common law contribution claim was

abrogated by Iowa Code section 668.5 (2011). AFFIRMED.




       Rand S. Wonio of Lane & Waterman L.L.P., Davenport, for appellant.

       Clark I. Mitchell of Grefe & Sidney, P.L.C., Des Moines, and Jeffrey D.

Bert of Brooks Law Firm, P.C., Rock Island, Illinois, for appellee.



       Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

      Michael Haut appeals from the district court’s summary judgment ruling in

favor of Terry Frazer, concluding Haut’s common law contribution claim was

abrogated by Iowa Code section 668.5 (2011).

      On April 20, 2011, Pamela Poll was working at Terry Frazer’s RV Center,

Inc., of which Frazer was the president and Haut was the sales manager. Poll

was injured when Haut allowed his dog to play with Frazer’s dog in the

showroom—the dogs ran into Poll, who fell and broke her leg.           Poll filed a

workers’ compensation claim and was awarded benefits.

      Poll then filed a personal injury action against Haut. Frazer was not a

party to this action. Haut’s attempt to establish immunity from suit under workers’

compensation provisions was unsuccessful.        Thereafter, Haut entered into a

settlement agreement with Poll, which did not extinguish or remove any liability of

Frazer.

      Haut filed this action for contribution against Frazer, alleging Frazer was

negligent in permitting the dogs to play on the premises. Frazer filed a motion for

summary judgment, asserting Haut was not entitled to contribution because Haut

had failed to discharge the liability of Frazer, or in the alternative, there is no

common liability to Poll.    Haut resisted, claiming his common law right to

contribution was unaffected by the comparative fault act.       The district court

rejected that claim, as do we.

      “Contribution is an equitable remedy requiring joint tortfeasors liable to an

injured third party to share the burden of damages.” Schreier v. Sonderleiter,

420 N.W.2d 821, 823 (Iowa 1988). “Iowa first recognized the cause of action,
                                           3

premised on common liability for nonintentional acts, in Best v. Yerkes, 77

N.W.2d 23, 29 (1956). The remedy is now codified in Iowa’s comparative fault

act.” Id. (emphasis added); see also Allied Mutual Ins. Co. v. State, 473 N.W.2d

24, 27 (Iowa 1991) (“It is not our role to alter this legislative determination of the

grounds for a contribution claim.”).

       Iowa Code section 668.5 provides in pertinent part:

              1. A right of contribution exists between or among two or
       more persons who are liable upon the same indivisible claim for the
       same injury, death, or harm, whether or not judgment has been
       recovered against all or any of them. It may be enforced either in
       the original action or by a separate action brought for that purpose.
       The basis for contribution is each person’s equitable share of the
       obligations, including the share of fault of a claimant, as determined
       in accordance with section 668.3.
              2. Contribution is available to a person who enters into a
       settlement with the claimant only if the liability of the person against
       whom contribution is sought has been extinguished and only to the
       extent that the amount paid in settlement was reasonable.

(Emphasis added.)

       Our supreme court has addressed the plain language of the provision:

                Our comparative fault statutes provide guidelines for
       contribution between tortfeasors. Contribution is permitted between
       two persons who are liable upon the same indivisible claim for the
       same harm. Iowa Code § 668.5(1). The right of contribution is
       available to a person who settles with a claimant “only if the liability
       of the person against whom contribution is sought has been
       extinguished and only to the extent that the amount paid in
       settlement was reasonable.” Id. § 668.5(2). Percentages of fault
       may be established by a separate action. Id. § 668.6(2). If
       contribution is sought in a case where judgment has not been
       rendered, it is enforceable upon the condition that “the person
       bringing the action for contribution must have discharged the
       liability of the person from whom contribution is sought by payment
       made within the period of the statute of limitations applicable to the
       claimant’s right of action . . . .” Id. § 668.6(3).
                In applying these statutes, it is clear that the plaintiff seeking
       contribution must establish that the defendant’s liability to the
       injured parties has been discharged.
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Aid Ins. Co. v. Davis Cnty., 426 N.W.2d 631, 632 (Iowa 1988) (emphasis added).

      The summary judgment record clearly establishes that Haut contends

Frazer has liability as a joint tortfeasor. Because Haut seeks contribution he

“must establish that [Frazer’s] liability to [Poll] has been discharged.” See id.

Haut has not established that Frazer’s liability to Poll has been discharged or

extinguished by Haut’s settlement with Poll, and Haut’s attempts to evade the

statutory provision are unavailing.   The district court did not err in granting

summary judgment to Frazer because Haut was not entitled to contribution.

      AFFIRMED.
