FARRELL, Associate Judge:
Appellant contends the trial court improperly granted summary judgment dismissing his claims for indemnity, contribution and wrongful involvement in litigation. We agree that summary judgment was erroneous on this record, and reverse.
The suit began when appellant John Taylor was sued by Jane Whitmore for damage to her property caused by excavation initiated on Taylor's adjacent property. Taylor had hired appellees Pedro Tellez and his wholly owned corporation, Tela Enterprises, Inc., to create a new entrance to his basement. Whitmore alleged in her complaint that: (1) while excavating on Taylor's property, appellees, acting as Taylor's agents, intentionally trespassed on her property; (2) both Taylor and appellees were negligent in performing the excavation; and (3) Taylor and/or appellees damaged her property in a willful and wanton manner. Taylor filed a third-party action against appellees, demanding indemnification and attorney's fees based on wrongful involvement in litigation. Taylor then settled with Whitmore by paying, through his insurance company, $15,000.
Taylor continued the suit against appellees and was allowed to add an alternative claim for contribution. Appellees, raising multiple arguments, moved for summary judgment on all three claims. The trial judge granted the motion without stating the basis for his decision.
In support of the trial judge's ruling, appellees contend principally that Taylor defended against Whitmore's suit by claiming that Tellez and Tela Enterprises were independent contractors, and that therefore, as a matter of law, Taylor was not liable for any negligence on appellees' part. Accordingly, they assert, he was "a mere volunteer in settling [Whitmore's] claim," Early Settlers Ins. Co. v. Schweid, 221 A.2d 920, 922 (D.C.1966), and so is not entitled to indemnity or contribution. We considered and rejected a similar contention in Early Settlers, in reversing what we said amounted to a dismissal of the case (though the defendants' motion had been styled one "for summary judgment"). Id. There, the insurance company representing one driver involved in an automobile accident
Id. In rejecting this contention we explained:
Id. We went on to hold that "dismissal of the case on motion [which we viewed practically either "as a motion to dismiss or one for summary judgment"] was premature for clearly appellant's complaint raises factual issues which can be resolved only after evidence has been produced at trial." Id. Specifically,
Id. at 922-23. We further rejected the argument that the complaint was defective "because it seeks contribution from [the defendant] but at the same time alleges he was solely responsible for the accident," finding no legal obstacle to such "seeming inconsistency" in pleading. Id. at 923.
Very much as in Early Settlers, we hold that the record is inadequate here to permit a conclusion, as a matter of law, that Taylor "unreasonabl[y] or ... imprudently" settled Whitmore's claim. Moreover, factual issues must be resolved before appellees' liability for indemnity (or contribution) and wrongful involvement in litigation can be determined.
Appellees' argument that Taylor denied any personal liability to Whitmore and settled away a winning independent contractor defense to vicarious liability is doubly flawed. First, appellees concede that Whitmore sued Taylor for both personal and vicarious liability. Regardless of Taylor's denial, on this record it is simply impossible to say that no rational trier of fact could have held Taylor personally liable for the damage, e.g., on a theory of negligent hiring or supervision. Second, even assuming that—as a matter of law—Tellez and Tela were independent contractors and not Taylor's agents, there still are unresolved issues of material fact concerning whether Taylor could have been held liable under exceptions to the rule insulating employers from liability for acts of independent contractors. Specifically, Whitmore alleged that Taylor, acting through Tellez and Tela Enterprises, intentionally trespassed on her property by way of an excavation "under the north wall of the Plaintiff's home" so as to undermine the wall sustaining her home. This allegation fairly stated a claim under Shapiro v. Vautier, 36 A.2d 349
Both of these theories—nuisance and unusually hazardous activity—are fairly embraced within Whitmore's complaint and, if proven, would have subjected Taylor to liability even though Tellez and Tela were independent contractors. We think that resolution of factual issues going to both theories, as well as to Taylor's personal liability, if any, is essential before the trial court can finally evaluate the effect of Taylor's settlement on his entitlement to indemnity or contribution. As in Early Settlers, too, "patently more facts need to be adduced" before Taylor's underlying right to these forms of compensation can be established or rejected.
R. & G. Orthopedic Appliances v. Curtin, 596 A.2d 530, 545 (D.C.1991). It is impossible to determine the negligence of Tellez and Tela Enterprises or of Taylor, or "the relation of the parties to one another," on the present factual record. Similarly, as to contribution, Taylor's claim against appellees is based partly on denial of his own negligence but includes also (in the amended complaint) a claim for contribution, which can only be had between joint tortfeasors. Early Settlers, 221 A.2d at 923. Taylor's assertion of an alternative theory of recovery based on Whitmore's allegation of his personal negligence means that an issue of material fact exists whether Taylor was a joint tortfeasor. For all of these reasons, summary judgment was inappropriate.
Similar considerations require that we reverse the summary judgment as to Taylor's claim for attorney's fees under the wrongful involvement in litigation doctrine, which works as an exception to the American Rule. See Dalo v. Kivitz, 596 A.2d 35, 37 (D.C.1991). That doctrine requires proof that (1) the fees were incurred in the course of prior litigation; (2) the prior litigation occurred between the party seeking the fees and a third party who is not the defendant in the fee action; and (3) the party seeking the fees must have become involved in the prior litigation as a consequence of the tortious acts of those from whom fees are sought. Auxier v. Kraisel, 466 A.2d 416, 420 (D.C.1983); Biddle v.
For the foregoing reasons, the trial court's grant of summary judgment in favor of appellees was error.
Reversed and remanded.