Marlene Fearing v. Burns & Wilcox ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3566
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Marlene Fearing, doing business *
as Real Estate by Marlene, Inc., *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Burns & Wilcox, Ltd., as general agent *
for Agency Marketing and/or * [UNPUBLISHED]
individually, *
*
Third Party Defendant-Appellee. *
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Submitted: December 19, 1997
Filed: December 29, 1997
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Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
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PER CURIAM.
Marlene Fearing appeals from the district court&s1 order granting summary
judgment to Burns & Wilcox, Ltd. (B&W) in this diversity suit. The district court
concluded that, by operation of Minnesota law, Fearing had no claim to pursue against
B&W. After de novo review, we affirm.
1
The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota.
The relevant facts are not in dispute. A supper club Fearing owned burned
down. Unable to recover losses from her insolvent, out-of-state fire insurer, Fearing
sued her insurance agent, Gary Banick, and the insurer&s general agent, B&W, in state
court. Banick cross-claimed against B&W for contribution. After the state court
dismissed Fearing&s claims against B&W as time-barred, Fearing and Banick settled.
Banick paid Fearing $300,000 and assigned her his contribution claim against B&W.
Fearing released Banick from the lawsuit and indemnified him from any claims made
by B&W or others.
Fearing then pressed the assigned Banick claim, and B&W removed the case to
federal court. The district court granted B&W&s motion for summary judgment,
concluding that, under Minnesota law, the settlement between Fearing and Banick
included a Pierringer release that extinguished the settling defendant&s contribution
claim against B&W, a non-settling defendant. See Alumax Mill Prod., Inc. v. Congress
Fin. Corp., 912 F.2d 996, 1010 (8th Cir. 1990); Frey v. Snelgrove, 269 N.W.2d 918,
923 (Minn. 1978). After careful review of the record and the arguments Fearing makes
on appeal, we agree with the district court that the settlement and release executed by
Fearing and Banick contains the essential elements of a Pierringer release, one effect
of which was to extinguish Banick&s assigned contribution claim against B&W. See
Thompson v. Brule, 37 F.3d 1297, 1300 (8th Cir. 1994); Alumax Mill, 912 F.2d at
1008. Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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