This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




Donald D. Johnson, as trustee for the heirs

and next of kin of Lynn Ellen Johnson, decedent,



O.B. of Minneapolis, Inc.,

d/b/a O'Brien Sheet Metal,


Boyer Ford Trucks, Inc.,



Paris Lea Burns,



O'Brien Sheet Metal,


Boyer Ford Trucks, Inc.,


Filed December 30, 1997


Harten, Judge

Hennepin County District Court

File No. 9414150

Sean E. Hade, Cara J. Debes, Jardine, Logan & O'Brien, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)

John R. Crawford, Johnson & Lindberg, P.A., 8500 Normandale Lake Blvd., Ste. 1610, Minneapolis, MN 55437-3828 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.



Appellant argues that the district court erred in granting adverse summary judgment on its claims for contribution and indemnification because it did not have notice of the summary judgment motion and because genuine issues of material fact exist. We affirm.


On July 12, 1994, Dennis Holbrook drove a Ford boom truck in the left eastbound lane of Highway 494. Just west of the Highway 35W intersection, the boom truck's left front tire blew out. The truck swerved, broke through the center guardrail, flipped onto its left side, slid east over the westbound lanes of traffic, and collided with a car driven by Lynn Johnson and a car driven by Paris Lea Burns. Holbrook and Johnson were killed and Burns was injured. The boom truck was owned by Holbrook's employer, appellant O'Brien Sheet Metal (O'Brien).

Minnesota law requires that commercial vehicles meet certain minimum federal safety requirements. An annual vehicle inspection is mandated by Minn. Stat. § 169.781. On April 4, 1994, Bill Foster, an employee of respondent Boyer Ford Trucks (Boyer), performed the annual inspection of the boom truck and found it to be in compliance. His certification included a finding that all the tires met the minimum tread depth standard. After the accident, Foster told crash investigators that he could not be sure that the tires then on the truck were the same ones he had checked, but that he would have failed them had they been in their current condition. Foster also stated in his affidavit that he routinely checked the tires on every vehicle he inspected and regularly failed tires that did not meet the depth requirements.

Minnesota law also requires that owners or drivers of commercial vehicles conduct daily and pre-trip vehicle inspections. Among other things, the tires must be checked. Minn. Stat. § 169.782, subds. 1(a), 2 (1996). The law requires that:

Any tire on the front wheels of a bus, truck, or truck tractor shall have a tread groove pattern depth of at least 4/32 of an inch when measured at any point on a major tread groove.

49 C.F.R. § 393.75(b) (1996). Between the time of Boyer's inspection and the accident, O'Brien maintains that it complied with the required daily inspections of the truck. O'Brien's safety officer, Fred Menger, testified that in June 1994 when he and Holbrook measured the tread depth on the front tires of the boom truck, the tread exceeded 4/32 of an inch in depth.

After the accident, crash investigators discovered that the boom truck was in violation of twelve federal regulations. Both of the front tires had less than 2/32 of an inch tread. An investigator concluded that the accident was caused by the driver of the boom truck applying too much braking force after the blowout. Because one of the tires was flat, the pressure on the brakes pulled the truck to the left. The truck then hit the guardrail causing the driver to lose control.

In April 1996, plaintiff Johnson brought a wrongful death action against O'Brien and Boyer. O'Brien then cross-claimed against Boyer for contribution and indemnity. The following November, plaintiff Burns brought a personal injury action against O'Brien. Thereafter, the two cases were consolidated.

Boyer moved for summary judgment against Johnson. O'Brien, Johnson, and Burns all opposed the motion. While the summary judgment motion was pending, O'Brien settled with both plaintiffs. Treating the motion as a motion to dismiss O'Brien's cross-claims, the district court then granted summary judgment in favor of Boyer against Johnson, Burns, and O'Brien. It reasoned that O'Brien would not have a claim for contribution or indemnification if Boyer was not liable to the plaintiffs. This appeal followed.


1. Notice and Jurisdiction

O'Brien argues that it did not have notice of a summary judgment motion against its indemnity claim. Because the court did not state until after the hearing that it would treat the summary judgment motion as if brought against O'Brien, O'Brien argues that it did not have notice or an opportunity to respond. Notice must be served at least ten days before the hearing on a motion for summary judgment. Minn. R. Civ. P. 56.03. Such notice is not required, however, if the court considers summary judgment sua sponte, provided both parties have an opportunity to respond and full discovery has been conducted or there are no material facts in dispute. Summary judgment is then proper as a matter of law, and the nonmoving party is not prejudiced by the lack of notice. Kabanuk Diversified Inv., Inc. v. Credit Gen. Ins. Co., 553 N.W.2d 65, 69 (Minn. App. 1996), review denied (Minn. Oct. 28, 1996).

Both contribution and indemnity have the purpose of securing restitution for one who has paid more than his share. Hermeling v. Minnesota Fire & Cas. Co., 548 N.W.2d 270, 273 n.1 (Minn. 1996). But they are not interchangeable. Contribution is appropriate where one tortfeasor has paid more than his fair share of a common liability. Id. Obviously, O'Brien had notice of the summary judgment motion affecting its contribution claim because if Boyer were found not liable to the plaintiffs, there could be no common liability to justify contribution.[1] Indemnity, on the other hand, does not arise from common liability, but from an express or implied contractual obligation. Id. Indemnity considers only the relationship between the defendants, not the relationship between the plaintiffs and defendants. Thus, Boyer could be liable for indemnification to O'Brien even if it was not liable to the plaintiffs. O'Brien did

not have notice of an adverse summary judgment motion affecting its indemnity claim.

Even if notice of a summary judgment motion is lacking, however, the motion is viable if it does not prejudice the nonmoving party. Kabanuk, 553 N.W.2d at 69. Prejudice arises if the nonmoving party did not have an adequate opportunity to present its position and raise issues before the court. Federal Land Bank v. Obermoller, 429 N.W.2d 251, 255 (Minn. App. 1988), review denied (Minn. Oct. 26, 1988). And prejudice is shown if the district court refuses to consider additional evidence in opposition to the summary judgment motion. Albert v. Paper Calmenson & Co., 515 N.W.2d 59, 65 (Minn. App. 1994), affirmed as modified, 524 N.W.2d 460 (Minn. 1994); see Niazi v. St. Paul Mercury Ins. Co., 265 Minn. 222, 228, 121 N.W.2d 349, 354 (1963) (supreme court considered specific facts appellant claimed district court failed to consider). Accordingly, to show prejudice, O'Brien must identify specific evidence that it anticipated offering to avoid summary judgment.

O'Brien has failed to specify any evidence that it was not allowed to present or that the district court refused to consider. It has not offered evidence to support its indemnification claim. It merely states that it did not have the opportunity to be heard on that claim. Having identified no additional evidence, O'Brien has not shown prejudice.

Finally, O'Brien argues that the district court exceeded its subject matter jurisdiction by deciding claims not included in the original summary judgment motion. The district court has jurisdiction to decide issues raised in the pleadings; here it stayed within that standard. See Duenow v. Lindeman, 223 Minn. 505, 511, 27 N.W.2d 421, 425 (1947) (court exceeded its subject matter jurisdiction by deciding issues not raised in the pleadings).

2. Summary Judgment

In reviewing a grant of summary judgment, we examine: (1) whether genuine issues of material fact exist and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). The nonmoving party must cite specific facts to show a genuine issue of material fact in order to avoid summary judgment. Hunt v. IBM Mid America Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986). As applied in the instant case, O'Brien must show the existence of a genuine issue of material fact with respect to each element of negligence. See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (to defeat a motion for summary judgment, plaintiff must adequately allege each of the four essential elements of a negligence claim: duty, breach of duty, proximate cause, and injury).

Indemnity applies "[w]here the one seeking indemnity has incurred liability because of a breach of duty owed to him by the one sought to be charged." Tolbert v. Gerber Ind., Inc. 255 N.W.2d 362, 366 (Minn. 1977). Thus, for the indemnity claim, O'Brien must show that Boyer owed it a legal duty that could be the basis for an individual negligence action, Boyer breached that duty, and the breach proximately caused the accident.

Boyer owed a legal duty to O'Brien to perform a reasonable inspection. We agree with the district court, however, that O'Brien did not establish that Boyer breached its duty. There is no evidence that Boyer's inspection of the tires was not reasonable. The Boyer employee who inspected the truck testified that he routinely checks every tire for tread depth and fails those that do not meet the statutory requirements. The district court's conclusion is particularly compelling in light of the temporal considerations. Boyer certified that the truck complied with safety regulations as of April 4, 1994, the inspection date. Thus, given subsequent intervening daily vehicle inspections and use by O'Brien, the condition of the truck on the day of the accident, July 12, 1994, does not give rise to any liability of Boyer. Accordingly, there is no genuine issue of material fact with respect to breach of duty, and summary judgment was appropriate.

In view of our determination that O'Brien failed to show a breach of duty and is entitled to summary judgment, it is unnecessary for us to consider the district court's determination that there is no evidence that Boyer's alleged negligence was the proximate cause of the accident.


[1] At oral argument, counsel agreed that indemnity, not contribution, is at issue in the appeal.