## Facts

- A multi-vehicle collision injured Douglas Lynn Bullman and his fiancée (later his wife).
- The wife sued Tenneco Oil Company, its employee driver, and other alleged tortfeasors, including Barbara Gay Templin.
- The case proceeded to trial against Tenneco, its employee, and Templin after other defendants were dismissed.
- The jury awarded the wife $400,000 against Tenneco and Templin; it awarded no damages to Bullman, finding his own negligence contributed to his injuries.
- Templin asserted a counterclaim against Bullman seeking contribution if she were found liable for the wife’s injuries; the jury found for Templin on that counterclaim.
- After credit for a settlement, judgment for the wife was entered for $393,000; Tenneco and Templin each paid one-half, and Templin obtained a contribution judgment against Bullman for $98,250.
- Tenneco later filed a separate action against Templin and Bullman seeking contribution, contending all three should bear a pro rata share of the judgment paid to the wife.
- The trial court granted summary judgment to Templin and Bullman on res judicata grounds, ruling Tenneco should have asserted contribution in the tort action as a counterclaim (against the plaintiffs) and as a cross-claim (against a co-defendant).

## Issues

1. Whether a defendant’s claim against a plaintiff for contribution for damages awarded to a co-plaintiff is a compulsory counterclaim that must be pleaded in the tort action or be barred by res judicata.
2. Whether a defendant’s contribution claim against a co-defendant is barred by res judicata if not asserted as a cross-claim in the tort action.

## Decision

- The Court of Appeals reversed the grant of summary judgment.
- A contribution claim against a plaintiff was not a compulsory counterclaim because it was contingent and had not accrued during the tort action.
- A contribution claim against a co-defendant was not barred by failure to assert it as a cross-claim because cross-claims are permissive and the contribution right had not matured until payment beyond a party’s pro rata share.

## Legal Principles

- A joint tortfeasor’s right to contribution arises only after the tortfeasor has paid more than a pro rata share of a common liability.
- A claim that is contingent or unmatured at the time a responsive pleading is served is not a compulsory counterclaim.
- A cross-claim between co-parties is permissive; failure to bring a cross-claim in the original action does not, by itself, bar a later action by res judicata.
- Res judicata does not bar a later contribution action when the contribution claim had not accrued as a justiciable claim during the earlier tort action.

## Conclusion

The court held that contribution rights in tort accrue only after payment in excess of a party’s pro rata share, so a defendant’s later contribution suit is not barred by res judicata merely because it was not asserted as a counterclaim against a plaintiff or as a cross-claim against a co-defendant in the underlying tort case.


Tenneco Oil Co. v. Templin, 201 Ga. App. 30 (Ga. Ct. App. 1991)