Empire Seafoods, Inc. v. Anderson

ON PETITION FOR REHEARING

DYER, Circuit Judge:

Cleary Bros. Construction Company has petitioned for rehearing en banc, urging for the first time that the decree entered by the District Court correctly applies the divided damages rule providing for recovery by Anderson and Gates from Empire, and recovery by Empire against Cleary for one-half the losses sustained by Empire in this respect.

Upon reconsideration, we are convinced that what we said about the District Court decree in our original opinion was appropos only to those instances where, aside from a statutory prohibition, an innocent third…