dissenting in part and concurring in part.
In the Civil Justice Reform Act, the legislature said that all fault had to be apportioned. In ProAssurance Indemnity Company, Inc. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689, we said that you could not get a jury instruction to apportion fault to a joint tortfeasor who has settled unless he was made a party. Today we are saying that a joint tortfeasor who has settled cannot be made a party. This holding is yet another hurdle to achieving the just result of a responsible party being only required to pay their fair share of damages.
The majority has wrongly rejected St. Vincent’s contention that it and Golden Living are joint tortfeasors. Just because joint and several liability has been abolished, it does not follow that there are no longer joint tortfeasors. As the majority notes, Arkansas’s Uniform Contribution Among Tortfeasors Act (UCATA), uses as its definition, “two or more persons jointly or severally liable in tort for the same injury to person or property.” Ark.Code Ann. § 16-61-201 (Repl.2005). However, the concept of joint tortfeasors arose from the reality joint legal responsibility, not from a statutory definition. See, e.g., Van Troop v. Dew, 150 Ark. 560, 234 S.W. 992 (1921) (holding the combined acts of separate tortfeasors imposed “joint | pliability”). Van Troop predated Arkansas’s adoption of UCATA by two decades. 1941 Ark. Acts 815.
St. Vincent and Golden Living are joint tortfeasors. St. Vincent’s alleged negligence in allowing Mr. Shelton to get a bedsore and Golden Living’s admitted negligence in allowing the bedsore to get infected combined to produce Mr. Shelton’s injury. I contend that the case of Applegate v. Riggall, 229 Ark. 773, 318 S.W.2d 596 (1958), which the appellant cites and the majority fails to discuss, is directly on point. Dr. Applegate, while attempting to remove a patient’s left ovary, negligently cut the patient’s left ureter. Subsequently, Dr. Riggall entered the case and negligently removed the patient’s left kidney. On appeal, this court reversed the dismissal of a third-party complaint against Dr. Riggall, holding that Doctors Applegate and Riggall were joint tortfeasors. The Applegate court stated that the two doctors were joint tortfeasors and thus potentially liable to each other for contribution because their independent acts caused or contributed to the same injury. 229 Ark. at 776, 318 S.W.2d at 598. This is precisely the situation we have before us. St. Vincent is being sued by the Sheltons because Mr. Shelton’s bedsores allegedly originated as a the result of St. Vincent’s negligence. Subsequently, the negligence of Golden Living caused one of the bedsores to become severely infected. The Sheltons are seeking damages for the combined harm caused to him by that bedsore, including pain and suffering and future medical expenses.
There is no question that the right of contribution among joint tortfeasors is established by the UCATA. Heinemann v. Hallum, 365 Ark. 600, 232 S.W.3d 420 (2006). For the foregoing reasons, I respectfully dissent.
|14I do, however, concur in the majority’s holding that the dismissal of the third-party complaint does not prevent St. Vincent from presenting to the jury evidence of Golden Living’s responsibility for a portion of Mr. Shelton’s injuries. Metheny, supra, stands only for the proposition that a defendant is not entitled to a jury instruction seeking to apportion fault to a nonparty. The fact that a settlement has been reached with Golden Living and the amount thereof is admissible at trial. Ark. Kraft Corp. v. Johnson, 257 Ark. 629, 635, 519 S.W.2d 74, 78 (1975).
BAKER, J., joins.