## Facts

- Dr. Ruben (Reuben) Brochner, a neurosurgeon, received full operating privileges at Boulder Community Hospital in 1964 and performed craniotomies there.
- Beginning in 1965, pathology results from many of Brochner’s craniotomies showed tissue that was “normal” rather than diseased.
- In 1965 and again in 1966, hospital personnel told Brochner he should obtain outside pathology consultations before operating.
- In March 1968, the hospital received a report indicating that about 50% of tissue samples from Brochner’s craniotomies were completely normal.
- In November 1968, Brochner performed a craniotomy on Esther Cortez at the hospital, and Cortez suffered injury.
- Cortez sued Brochner and the hospital for negligence, alleging (among other things) that the hospital knew of Brochner’s incompetence yet continued to permit him to operate.
- Cortez settled with the hospital for $150,000 and provided the hospital a release; Cortez also settled separately with Brochner for an undisclosed amount.
- Western Insurance Company, as the hospital’s insurer/subrogee (and trustee in bankruptcy), together with the hospital, sued Brochner seeking reimbursement of the $150,000 settlement and attorney’s fees and costs.
- The trial court found Brochner’s negligence was the primary cause of Cortez’s injuries and the hospital’s negligence was secondary, and it awarded Western/hospital full indemnity plus attorney’s fees and costs.
- The court of appeals affirmed, and Brochner sought review in the Colorado Supreme Court.

## Issues

1. Whether Colorado law permits full common-law (equitable) indemnity in favor of a settling hospital and its subrogee against a physician when the physician’s negligence is found to be the primary cause of the patient’s injury and the hospital’s negligence is secondary.
2. Whether Colorado’s comparative negligence and contribution principles bar such indemnity and limit the hospital to contribution only.
3. Whether the hospital and its subrogee could recover the settlement amount and related defense expenses based on proof that the settlement was reasonable and that the hospital faced potential liability to the patient.

## Decision

- The Colorado Supreme Court affirmed the judgment for Western and the hospital.
- The Court held that full equitable indemnity may be available where one party’s liability is secondary and another’s negligence is primary, even though both were defendants in the injured party’s action.
- The Court rejected the argument that comparative negligence and statutory contribution principles eliminate this limited form of indemnity.
- Given the trial court’s findings (primary fault by Brochner, secondary liability for the hospital, and a reasonable settlement), the award of the $150,000 settlement payment and attorney’s fees/costs was upheld.

## Legal Principles

- Equitable indemnity is a narrow, all-or-nothing loss-shifting remedy that may require the primarily liable tortfeasor to reimburse a secondarily liable party for the entire loss.
- The primary/secondary distinction focuses on the character of each party’s liability, not merely on whether both were named as tort defendants by the injured plaintiff.
- Comparative negligence and contribution address allocation among tortfeasors whose fault stands on the same level; they do not necessarily displace equitable indemnity where the indemnitee’s liability is secondary, derivative, or constructive in relation to the indemnitor’s direct wrongdoing.
- A settling indemnitee seeking indemnity must show (1) potential liability to the claimant and (2) that the settlement was reasonable under the circumstances; an indemnity claim is not defeated solely because the underlying case ended by settlement rather than judgment.
- When indemnity is established, the indemnitee may recover amounts paid in settlement and related defense expenses that are properly tied to the indemnified loss.

## Conclusion

Brochner v. Western Insurance Co. holds that Colorado continues to recognize limited equitable indemnity after adoption of comparative negligence and contribution principles: when a hospital’s liability to a patient is found secondary and a physician’s malpractice is found the primary cause of injury, the hospital (and its insurer/subrogee) may recover the full reasonable settlement payment and related defense expenses from the physician.


Brochner v. Western Insurance Co., 724 P.2d 1293 (1986)