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     On September 30, 2002, plaintiffs filed a motion to dismiss the counterclaim1 of defendant Semes against plaintiff Merle St. Clair. For the reasons discussed herein, the court will grant plaintiff’s motion.

     On July 23, 2002, plaintiffs filed a complaint for wrongful death and negligent infliction of emotional distress against defendants Hercules Semes, individually and dba Bamboo Taxi Service, Sepio Donre, individually and dba Bamboo Taxi Service, and Kanio Dorres.

     The complaint alleges that on January 23, 2002, a Bamboo Inn Taxicab driven by defendant Dorres struck and killed Iclif Primo. The complaint further alleges that plaintiff Merle St. Clair is a citizen

of the United States, with a permanent residence in the State of Pohnpei and is the father of Sam St. Clair – Iclif’s first cousin – and the uncle of Iclif Primo.

     On September 10, 2002, defendant Semes filed an answer2 to the complaint, which included a cross-claim against defendants Donre and Dorres, and a counterclaim against plaintiff Merle St. Clair. Semes pleads a cause of action for "indemnity and contribution" against Donre, Dorres and Merle St. Clair. Semes alleges that Merle St. Clair has a duty to watch over Iclif Primo, control his access to the busy street, and prevent him from walking in or across the busy street in an unsafe manner.

1. Plaintiffs’ Motion to Dismiss Counterclaim

     On September 30, 2002, plaintiffs filed a motion to dismiss Semes’ counterclaim against Merle St. Clair. Plaintiffs bring their motion pursuant to FSM Civ. R. 12(b)(6) on the grounds that the pleading fails to state a claim against Merle St. Clair upon which relief may be granted.

     Plaintiffs argue that equitable indemnity is not a viable cause of action in the FSM (citing Joy Enterprises, Inc. v. Pohnpei Utilities Corp., 8 FSM Intrm. 306 (Pon. 1998)), and that there exists no other basis upon which defendant could be entitled to indemnity.

     Plaintiffs further argue that Semes’ contribution action has been completely subsumed by the doctrine of comparative fault, citing Alfons v. Edwin, 5 FSM Intrm. 238 (Pon. 1991). In Alfons, the court held that the comparative negligence doctrine is more consistent with custom and tradition (than contributory negligence) and also would better serve the interests of justice in Pohnpei because it offers greater precision of analysis and compensation. Id. at 242. The Alfons court further stated that the doctrine of comparative negligence is more consistent with life in Pohnpei and elsewhere in that the doctrine recognizes that injuries and damages are often caused through a combination of errors and misjudgments by more than one person. Id.

     Plaintiffs argue that because comparative fault principals protect Semes from exposure to the fault attributable to others, and because joint and several liability does not apply with respect to allocation of fault in this regard, there is no possibility Semes will be held accountable for more than his percentage of fault allocated to him, his company or his employee. Therefore, Semes cannot obtain indemnity or contribution from Mr. St. Clair, someone whose negligence he cannot be held accountable for.

     Plaintiffs state that subsequent to the Alfons decision, every state and national court decision has applied the doctrine of comparative fault. Further, no decision applying Pohnpei tort law has resulted in a judgment imposing liability against a defendant in an amount greater than the percentage of fault allocated to his conduct.

     Plaintiffs state that since no decision has answered the question of whether several liability applies under Pohnpei tort law, the possibility of a defendant being held jointly and severally liable in tort for the fault of unrelated third parties remains. This concept is often referred to as the "deep pocket" theory of liability of tort liability.

     Plaintiffs claim that it is not possible that Semes will be held accountable for fault allocated to Mr. St. Clair because the plaintiffs will stipulate not to pursue a judgment against Semes based on fault

allocated to St. Clair. In other words, for purposes of this lawsuit, plaintiffs agree that while Semes may be held liable for his own negligence, vicariously liable for the negligence of the cab driver, and jointly and severally liable with others operating the taxi company, he will not be held jointly liable for fault attributable to the plaintiffs or any other third party, whether named in this lawsuit or not.

     Plaintiffs assert that contribution does not apply in this situation (i.e., Semes v. Mr. St. Clair). Plaintiffs argue the fault allocation injustices arising from the common law referenced above have long since been overcome by the adoption of comparative fault. As between defendants like Semes, Donre and Dorres, contribution would appear to apply. 6 F.S.M.C. 1204(2) provides that where a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion upon notice to all parties to the action.3

     Plaintiffs argue that under such circumstances, principals of equity allowing pro rata distribution may not offend the rationale underlying the doctrine of comparative fault or the public policy providing for vicarious liability, particularly since the contribution statute, 6 F.S.M.C. 1201 et seq., permits the court to consider the liability of tortfeasors in a group to be treated as one share.

     Plaintiffs contend that if a defendant were permitted to proceed by way of a cross-claim under the statute against a non-named third party, or as attempted here in a counterclaim against a plaintiff, an anomaly would be created by the clash between the statute’s application of pro-rata shares calculated without regard to a party’s degree of fault. The only reason this potential anomaly exists is because the statute pre-dates the application of comparative fault by several decades and it was clearly not contemplated at the time.

      Plaintiffs assert that under comparative fault principals applied on a basis of several liability, a party is obligated to the plaintiff for a judgment equal to his percentage allocation of culpability. Therefore a tortfeasor found 90% at fault – whether directly or vicariously – ends up with a judgment against him in that amount. No more and no less. Then, if such a defendant could proceed with contribution actions against nine hypothetical third parties, each found one percent at fault, and allocation of liability on the contribution claims was made on a pro-rata basis as called for in the statute, then the 90% tortfeasor could reduce his liability all the way down to 10% and each of the nine persons having only one percent negligence would end up liable for the same 10% share.

      Plaintiffs claim an even greater potential inequity could result from the present situation. If defendant Semes was found to be 99% at fault, either directly or vicariously via the driver, with Mr. St. Clair being held responsible for the other 1%, and if the three named defendants were treated as a group for pro-rata allocation under the contribution statute, the 99% tortfeasor might effectively reduce his exposure by almost half (from 99% to 50%) while the 1% tortfeasor would find his share increase by 50 times, from 1% to 50%. Plaintiffs argue this is obviously not the intended purpose of the law as it would create a grotesque inequity without any justification whatsoever. This scenario also explains why comparative fault is the applicable law here and in the vast majority of jurisdictions.

     Plaintiffs point to the case of Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 182 (Pon. S. Ct. Tr. 1987), in which the Pohnpei Supreme Court essentially rejected any argument that pro-rata contribution should trump comparative fault principals in assessing blame. In summary, the court held that in apportioning damages among negligent parties, each defendant’s share of the damages due

to plaintiff ought to be based on that defendant’s percentage of his liability. The Koike decision was rendered on a ruling on plaintiff’s motion to provide for joint and several liability against both defendants operating a common enterprise. The court denied the motion on the grounds that the defendants were equally at fault and should therefore face judgments based on that fault allocation.

     Plaintiffs also point to the case of Ludwig v. Mailo, 5 FSM Intrm. 256 (Chk. S. Ct. Tr. 1992). Plaintiffs contend that the Mailo decision provides ample support under these facts for a finding that Mr. St. Clair is completely free of fault. In that case, the court considered the alleged negligence of a 14 year old babysitter who was responsible for watching over a two year old child who was struck and killed by a negligently driven truck. The Mailo court stated that it would agree that a factual situation under which a babysitter takes the child she was caring for on a walk and allows the child to become separated from her by a well traveled street indicates negligence on the part of the baby sitter with regard to her duty of care to the child. However, the Mailo court found that truck driver’s negligence to be the superseding and thus proximate cause of death, and that the baby sitter’s negligence did not operate against the plaintiffs to preclude their rights to recovery from the defendants.

     Plaintiffs also argue that pursuant to Joy Enterprises, Inc. v. Pohnpei Utilities Corp., 8 FSM Intrm. 306 (Pon. 1998), the indemnity cross-claim asserted by Semes is not permitted under the law in Pohnpei.

2. Semes’s Opposition

     On October 16, 2002, defendant Semes filed an opposition to plaintiffs’ motion to dismiss his counterclaim. Semes argues that even if the wrong theory is presented in the claim, the motion to dismiss should still not be granted if a proper theory is available to support the claim, citing Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 114 (Chk. 1995). Semes argues there is adequate factual support for the counterclaim against Mr. St. Clair.

     Semes states that he raises the affirmative defense of comparative negligence, which raises the issue of the negligence of Iclif Primo as the proximate cause (or at least a contributing cause for comparative analysis) of the accident. Semes states that the doctrine of comparative negligence, although adopted in the state of Chuuk, has not been conclusively decided to be the law in Pohnpei.

     Semes argues that in the allegations of the counterclaim, Mr. St. Clair had a duty to act as a reasonably prudent adult walking with two minor children on a busy road at a busy time of the day. Semes contends that Mr. St. Clair’s negligence either caused or was a contributing cause of the accident.4

     Semes also argues that Joy Enterprises, Inc. v. Pohnpei Utilities Corp., 8 FSM Intrm. 306 (Pon. 1998) does not mandate that Semes’ counterclaim for indemnity should be dismissed.

3. Plaintiffs’ Reply

     On October 16, 2002, plaintiffs filed their reply to Semes’ opposition to motion to dismiss cross-

claim for contribution and indemnity. Plaintiffs contend that pursuant to the contribution statute,5 the right of contribution may only be asserted in one of two ways. It may either be (1) enforced by separate action commenced within one year after the judgment against him has become final, or (2) it may be enforced in the same action against other judgment defendants by motion upon notice to all parties to the action.

      Plaintiffs argue that the law in this jurisdiction does not provide a cause of action for equitable indemnity or contribution by way of a cross-claim against any party, however situated, in the pending action or by means of impleading a third party. Plaintiffs argue that the right of contribution exists only in favor of a tort-feasor who has paid more than his share of common liability. 6 F.S.M.C. 1202(2). Since liability has not been adjudicated in this matter, nor has any party been determined to be at fault, no right of contribution exists in anyone’s favor.

      Plaintiffs also contend that determining comparative shares of fault in a negligence action does not require cross-claims (or counterclaims) or the presence of potentially culpable non-parties. Further, plaintiffs stress that defendant Semes is fully protected in this regard by his affirmative defense of comparative fault.

1. Indemnity

     In Joy Enterprises, Inc. v. Pohnpei Utilities Corp., 8 FSM Intrm. 306 (Pon. 1998), the court stated that while although the court had previously recognized claims for indemnity based on contractual provisions between two parties, in the absence of a contractual provision the court would not create a common law indemnity claim. 8 FSM Intrm. at 311.

     This court believes that in the absence of any contractual provisions between the parties, there is no basis for a claim of indemnity by Semes against Merle St. Clair. The court will therefore grant plaintiffs’ motion to dismiss Semes’ counterclaim for indemnity.

2. Contribution

      6 F.S.M.C. 1202, Right of contribution, provides as follows:

(emphasis added).

       And 6 F.S.M.C. 1204, Enforcement, provides as follows:

      This court believes that 6 F.S.M.C. 1202(2) bars Semes’ counterclaim against plaintiff Merle St. Clair for contribution. At this time, no right of contribution exists since Semes has not paid more than his pro rata share of the common liability. Of course, in this point in the litigation there has not been any finding of liability against any party.

     Additionally, it does not appear that 6 F.S.M.C. 1204 permits an action for contribution such as the one plead by Semes against Mr. St. Clair. Section 1204 apparently only provides that an action for contribution may be enforced (1) by a separate action, or (2) by motion where a judgment has been entered against two or more tort-feasors for the same injury or wrongful death. As no judgment has yet been entered, it would appear that Semes’ claims for contribution at this point are premature, and may not be brought by way of a counterclaim.

     This result is in accord with the conclusion reached in Alfons v. Edwin, 5 FSM Intrm. 238 (Pon. 1991). This court believes that comparative fault is a preferable doctrine to that of contributory negligence, and should be considered the law in the state of Pohnpei until and unless the Pohnpei Supreme Court rules otherwise. And clearly no case in this court or in the state of Pohnpei has decided that the doctrine of contributory negligence in fact controls and that comparative negligence does not apply.

     Under the principles of comparative fault, defendant Semes will only be held liable for the percentage of fault he is found responsible for, if any. Assuming that Semes is found to be 30% at fault, the maximum he would be responsible to pay towards plaintiffs’ damages would be 30%. Semes is protected as he filed an answer which included the affirmative defenses of comparative negligence, indemnity and contribution.

      This result is also in accord with the Pohnpei Supreme Court’s decision of Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 182 (Pon. S. Ct. Tr. 1987), where that court held that in apportioning damages among negligent parties, each defendant’s share of the damages due to plaintiff ought to be based on that defendant’s percentage of liability.

     Therefore, the court believes that defendant Semes’ counterclaim against Merle St. Clair should be dismissed.

     For the foregoing reasons, it is hereby ordered that plaintiffs’ motion to dismiss defendant Semes’ counterclaims against plaintiff Merle St. Clair is granted. Defendant Semes’ claims for contribution and indemnity against plaintiff Merle St. Clair are dismissed.

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1. Defendant Semes did not refer to his claims against plaintiff Merle St. Clair as a counterclaim, but instead simply titled his entire pleading as a "cross-claim." However, since the particular claims against plaintiff St. Clair should properly be titled as a "counterclaim" and not a "cross-claim," the court will refer to the

claims against plaintiff St. Clair as a counterclaim. See FSM Civ. R. 7 and 12.

2. Semes’ answer includes the affirmative defenses of comparative negligence, indemnity and contribution.

3. Plaintiffs point out that the statute does not provide a basis for proceeding in the same action against anyone but other judgment defendants.

5. 6 F.S.M.C. 1201 et seq.