ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Kevin P. Farrell Darla S. Brown
Angela Herod Bloomington, Indiana
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE,
ATTORNEYS FOR AMICUS CURIAE, INDIANA TRIAL LAWYERS
DEFENSE TRIAL COUNSEL OF INDIANA ASSOCIATION
Ross E. Rudolph Thomas Doehrman
James D. Johnson Indianapolis, Indiana
Evansville, Indiana
IN THE
SUPREME COURT OF INDIANA
DENNIS MENDENHALL and )
TINA MENDENHALL, )
)
Appellants (Plaintiffs Below),) Cause No. 49S04-9811-CV-740
) in the Supreme Court
v. )
) Cause No. 49A04-9709-CV-393
SKINNER AND BROADBENT CO., ) in the Court of Appeals
INC. )
)
Appellee (Defendant Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Jester
Cause No. 49D13-9606-CT-767
May 17, 2000
SHEPARD, Chief Justice.
The defendant in this tort case suffered judgment and then sought
credit for money paid by a settling co-defendant who had not been added
back under the nonparty provisions of the Comparative Fault Act. Is credit
available under these circumstances? We hold it is not.
Facts and Procedural History
This case arose out of injuries Dennis Mendenhall suffered when he
slipped and fell in a parking lot. Skinner and Broadbent Co., Inc. owned
the parking lot, although it was used by patrons of Stewart Tire Co. The
Mendenhalls filed suit against both Stewart Tire and Skinner. On the first
morning of trial, Stewart Tire settled with the Mendenhalls for $15,000,
and Stewart was dismissed from the suit. Counsel for Skinner moved orally
to credit the amount of the settlement against any potential damages
following the jury verdict.
In a jury trial between the Mendenhalls and Skinner, the jury found
for the plaintiffs and assessed damages in the amount of $80,000. Pursuant
to the Comparative Fault Act, it found Dennis Mendenhall was 50% at fault
and Skinner was 50% at fault. Accordingly, the jury rendered a verdict of
$40,000 against Skinner and Broadbent.
Skinner moved to set off the final verdict by the amount of Stewart’s
settlement. The trial court granted the motion and amended the judgment,
crediting it with $15,000 the Mendenhalls received in settlement, $5,000 in
medical expenses Stewart had paid the Mendenhalls before trial, and $5,000
in medical expenses Skinner had paid the Mendenhalls before trial.[1] This
reduced the judgment against Skinner from $40,000 to $15,000.
The Mendenhalls appealed this amendment of the judgment. The Court of
Appeals affirmed. Mendenhall v. Skinner & Broadbent Co., 693 N.E.2d 611
(Ind. Ct. App. 1998).
I. Our Common Law Rule
Indiana courts have traditionally followed the one satisfaction
principle. By this we have meant that courts should take account of
settlement agreements and credit the funds received by the plaintiff
through such agreements, pro tanto, toward the judgment against a co-
defendants. The principle behind this credit is that the injured party is
entitled to only one satisfaction for a single injury and the payment by
one joint tortfeasor inures to the benefit of all. Sanders v. Cole Mun.
Fin., 489 N.E.2d 117 (Ind. Ct. App. 1986). This policy was articulated, of
course, long before enactment of the Comparative Fault Act. The issue
before us today is thus one of first impression, whether the Act
necessitates changes in this common law practice.
The Mendenhalls argue that credits or set-offs, amounts received in
settlement, did not survive the Comparative Fault Act. They contend that
the Act makes the nonparty defense the defendant’s sole method for reducing
liability where another party settles. Conversely, Skinner and Broadbent
maintains that credits did and should survive the Act. In so asserting,
Skinner relies on the Act’s language, case law, and public policy. We
examine these arguments in turn.[2]
II. The Comparative Fault Act
The Comparative Fault Act, Ind. Code § 34-51-2-1,[3] applies generally
to damages actions based in fault that accrued on or after January 1, 1985.
The primary objective of the Act was to modify the common law rule of
contributory negligence under which a plaintiff was barred from recovery
where he was only slightly negligent. Indianapolis Power v. Brad
Snodgrass, Inc., 578 N.E.2d 669 (Ind. 1991). The Act seeks to achieve this
result through proportional allocation of fault, ensuring that each person
whose fault contributed to cause injury bears his or her proportionate
share of the total fault contributing to the injury. See Bowles v. Tatom,
546 N.E.2d 1188 (Ind. 1989).
Under Indiana's comparative fault scheme, a named defendant may assert
a “nonparty" defense, seeking to attribute fault to a nonparty rather than
to the defendant. Ind. Code Ann. § 34-51-2-14 (West Supp. 1999).[4] When
a defendant asserts this defense, the court instructs the jury to determine
the percentage of fault of each party and "any person who is a nonparty."
Ind. Code Ann. § 34-51-2-7(b)(1) (West Supp. 1999).[5] A nonparty is: "a
person who caused or contributed to cause the alleged injury, death, or
damage to property but who has not been joined in the action as a
defendant." Ind. Code Ann. § 34-6-2-88 (West Supp. 1999).[6] A defendant
must affirmatively plead the nonparty defense, and the defendant carries
the burden of proof on the defense. Ind. Code Ann. § 34-51-2-15 (West
Supp. 1999).
Skinner first notes that the Act makes adding a nonparty permissive
and not mandatory. Indeed, Ind. Code § 34-51-2-14 says: "In an action
based on fault, a defendant may assert as a defense that the damages of the
claimant were caused in full or in part by a nonparty." Relying on the
statute’s permissive nature, Skinner argues that it was not required to
assert a nonparty defense under the Act as the sole method of seeking to
reduce liability.
When examining a statutory provision, we look at the statute as a
whole and give common and ordinary meaning to the words employed. Robinson
v. Wroblewski, 704 N.E.2d 467 (Ind. 1998). The term "may" in a statute
generally indicates a permissive condition. Haltom v. Bruner & Meis, Inc.,
680 N.E.2d 6 (Ind. Ct. App. 1997).
Skinner is obviously correct that the statute leaves to defendants the
discretion to add nonparties. On the other hand, while the Act provides
defendants with this choice, it says nothing by way of creating or
precluding credits.
III. The Case Law is Not Dispositive
Skinner also contends that case law directs the conclusion that
credits are not precluded under the Act where the nonparty is not named at
trial. In so asserting, Skinner relies on Manns v. State Dept. of
Highways, 541 N.E.2d 929 (Ind. 1989).
In Manns, we considered the evidentiary use of partial settlement
agreements. Plaintiff Manns was injured in an automobile accident and sued
two defendants: the driver of the other vehicle, Hintz, and the State of
Indiana Department of Highways. Id. at 931. Hintz was dismissed before
trial after Manns executed a covenant not to sue Hintz in exchange for
$125,000. Id. At trial, the court permitted the Department of Highways to
inform the jury of the settlement agreement with Hintz; however, it would
not allow Manns to place the covenant not to sue in evidence. Id. On
appeal, Manns contended that the trial court erred in permitting the
Department to mention the settlement agreement, and the amount received,
when he was not allowed to introduce the agreement into evidence. Id.
We held that the admission was in error and observed that the
existence and amount of a settlement should normally not be presented to a
jury. Rather, the trial judge should subtract the amount of the settlement
from the jury verdict. Id. at 934.[7]
In determining whether credits or set-offs survive the Comparative
Fault Act, Manns is not particularly helpful. Although we decided Manns in
1989, the accident there occurred in 1984, before the enactment of the
Comparative Fault Act and the case was not decided under the Act. See id.
The case of Huffman v. Monroe County Community School Corp., 588
N.E.2d 1264 (Ind. 1992), did arise under the Comparative Fault Act, but our
opinion did not directly address credits and set-offs. Rather, Huffman
explored whether the Act abrogated the common law rule on releases. We
discussed the trial judge’s power to credit settlement amounts only in
dicta, and relied on the language from Manns in stating that trial judges
had the power and duty to reduce jury verdicts by amounts received in
settlement. Huffman, 588 N.E.2d at 1267.
For their part, the Mendenhalls cite Bowles, 546 N.E.2d 1188, and
Koziol v. Vojvoda, 662 N.E.2d 985 (Ind. Ct. App. 1996), for the proposition
that a nonparty defense is Skinner’s sole method of reducing liability.
These cases, however, do not support this proposition. Rather, Bowles
established that a defendant’s failure to object to the dismissal of co-
defendants or to name dismissed co-defendants as nonparties precluded the
trial court from allocating any percentage of fault to them. Bowles, 546
N.E.2d at 1189-90. The Koziol court answered a logical question following
Bowles, holding that remaining defendants in tort cases could name
original defendants as nonparties even where those defendants had been
dismissed from the case pursuant to settlement. Koziol, 662 N.E.2d at 989.
IV. What is the Best Policy?
In the absence of a statutory directive or controlling case law, our
decision rests heavily on the sort of policy considerations that have
always been a part of the development of common law. Both sides urge
differing public policy concerns in our determination of whether credits
survive the Comparative Fault Act.[8]
The basis of Skinner and Broadbent’s policy argument is the one
satisfaction principle. Skinner argues, if non-settling defendants do not
receive credits, plaintiffs will be unjustly enriched where a defendant is
responsible for an entire verdict although plaintiffs have already received
partial or full recovery from settling co-defendants. (Appellee’s Br. at
3, 10.) This is the principle our Court of Appeals articulated in its
disposition of this case. See Mendenhall, 693 N.E.2d at 612 (purpose of
credit is to prevent double recovery for the same injury) (citing Riehle v.
Moore, 601 N.E.2d 365, 371 (Ind. Ct. App. 1992)).
Partly in response, the Mendenhalls assert that we should consider the
risks that a plaintiff incurs when settling. Depending on the accuracy of
a plaintiff’s predictions about the amount of damages a jury may find, or
the percentage of fault that the jury will assign to the settling
defendant, a plaintiff may suffer a penalty or gain a windfall. Leonard E.
Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind. L. Rev.
903, 910-11 (1984).
Under our comparative fault system, double recovery may occur where
the plaintiff settles, then receives more than the amount of damages
calculated at trial.[9] The ability of the court to adjust for such
overcompensation is straightforward when the settling defendant is added as
a nonparty. With the addition of the nonparty, the jury necessarily
provides the court with a visible allocation of fault among the plaintiff,
the defendant, and the nonparty. It is then possible to ascertain whether
the plaintiff was overcompensated by the settling defendant. When the
nonparty is not added by the defendant, the jury cannot provide an
allocation of fault to that party and any effort by the court to calculate
a credit is more speculative. What the jury has provided in this instance,
after all, is an indication of such damages as it thinks have been
proximately caused by the litigating defendant, and presumably no more.
We think the ability of courts to implement the common law policy of
credit during an age of litigation under the Comparative Fault Act is best
served by a rule that obliges defendants to name the settling nonparty if
they are to seek credit for the settlement. We reach this conclusion for
reasons that follow here.
The nonparty defense is a potent tool for defendants. A defendant
likely approaches the question of whether to add a settling nonparty from
at least two possible starting points: cases where the defendant believes
the settling nonparty likely had some liability and those where they think
the settling nonparty did not.
In the first of these two situations, the nonsettling defendant can be
expected to make a calculated economic decision based on an assessment of
how much the settlement was and an estimate of the liability a jury might
find against the settlor. This is not unlike the economic decision the
plaintiff makes in deciding whether to settle with one or more defendants.
There are also cases in which the remaining defendant concludes that
the settlor had no liability. This is the position Skinner says it
occupies.
Skinner argues that requiring it to plead a nonparty defense to obtain
credit is inappropriate because Skinner did not have reason to believe that
Stewart Tire was in any way liable for Mendenhall’s injuries. Indeed,
Skinner maintains that it would have been “unethical” to add Stewart Tire
as a nonparty where there was no evidence tending to establish Stewart
Tire’s liability in this matter. Skinner is right to be concerned about
the ethics of such a decision, and surely there will be pressure to
identify legitimate grounds for claiming the nonparty defense. Still, if
there is no evidence of Stewart’s liability, then the fact that Stewart
Tire was not added as a nonparty leads to a just result. If Stewart Tire
was not culpable, but settled merely to avoid the cost of litigation or for
some other reason, Skinner loses nothing to which it is rightfully
entitled. It either prevails at trial and suffers no judgment, or it loses
at trial and incurs liability for the value of that injury shown by the
evidence to be its sole responsibility.[10]
Finally, we consider the possible effect of today’s ruling on
settlement decisions. The policy of the law generally is to discourage
litigation and encourage negotiation and settlement of disputes. Lafayette
Tennis Club, Inc. v. C.W. Ellison Builders, Inc., 406 N.E.2d 1211 (Ind. Ct.
App. 1980).
We surmise that this decision will not discourage a defendant from
settling. Under our comparative fault system, the jury is asked to
determine the fault of each of the parties and nonparties without giving
consideration to settlement. Therefore, for the purposes of fault
allocation, it does not matter to the litigating defendant whether a
settlement occurred or for what amount--the defendant will still actively
seek to shift a percentage of fault to the settling tortfeasor and the
plaintiff. See Eilbacher, supra, at 909. Likewise, defendants considering
settlement are not discouraged from settling because, even if they are
named as nonparties, they are no longer financially at risk. The benefits
of the finality they seek to achieve through settlement seem unaffected.
Further, this resolution does not discourage plaintiffs from settling.
Plaintiffs still assume the same risks in making the decision to settle
and must still consider whether settlement is beneficial in light of their
estimations of liability and anticipated savings in litigation costs.
Thus, this rule neither discourages settlement nor penalizes any party,
plaintiff or defendant, from having his day in court.
Finally, while the rule we announce today does not discourage
settlement, we believe that, at least in a case such as this one, the one
satisfaction rule does discourage settlement. Under the one satisfaction
rule, the economic effect on the parties in this case is as follows: the
Mendenhalls receive $40,000; Stewart pays $20,000; and Skinner pays
$20,000. Under the rule we adopt today, the economic effect on the parties
is as follows: the Mendenhalls receive $55,000; Stewart pays $20,000;
Skinner pays $35,000. Assuming perfect information, the Mendenhalls are
less likely to settle under the one satisfaction rule (they receive $15,000
under it), while Skinner is also less likely to settle under the one
satisfaction rule (it pays $15,000 less under it). At least on the facts
of today’s case, we believe that our holding makes settlement more likely
than it is under the one satisfaction rule—plaintiffs do not risk losing
the value of a portion of their settlement and defendants are not
encouraged to go to trial in an attempt to reduce their liability by the
amount of another’s settlement.
We conclude that the one satisfaction rule and the benefits of
settlement are best advanced to affording litigating defendants a credit
where a thorough allocation of damages by the jury provides the court with
a respectable basis upon which to adjust a judgment to avoid a double
credit. Thus, to request a credit, the litigating defendant must add the
settling defendant as a nonparty under the Comparative Fault Act. Under
the facts presented here, therefore, Skinner should not be entitled to
receive a credit for the amount of the Mendenhall’s settlement.
Conclusion
Thus, the trial court here erred in granting Skinner’s motion to amend
judgment to credit the verdict with the amount Skinner paid the Mendenhalls
in settlement. We reverse and remand with instructions to adjust the
judgment accordingly.
Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in result with opinion.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Kevin P. Farrell Darla S. Brown
Angela Herod Bloomington, Indiana
Indianapolis, Indiana
AMICUS CURIAE
AMICUS CURIAE
Ross E. Rudolph
Thomas C. Doehrman James D. Johnson
Indiana Trial Lawyers Association Defense Trial Counsel of
Indiana
Evansville, Indiana
_________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________________
DENNIS MENDENHALL and )
TINA MENDENHALL, )
)
Appellants (Plaintiffs Below), ) Indiana Supreme
Court
) 49S04-9811-CV-740
v. )
) Indiana Court of Appeals
SKINNER AND BROADBENT CO., ) 49A04-9709-CV-393
INC., )
)
Appellee (Defendant Below). )
___________________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David A. Jester, Judge
Cause No. 49D13-9606-CT-767
__________________________________________________________________________
ON PETITION TO TRANSFER
__________________________________________________________________________
May 17, 2000
BOEHM, Justice, concurring in result.
As I understand it, the majority holds, and I agree, that if a party
settles and becomes a nonparty, in order to get credit for the settlement
amounts the remaining defendants must assert a nonparty defense based on
the settling defendant’s potential liability.
The majority, however, does not limit itself to the situation before
the court where a named defendant has settled and becomes a nonparty.
Rather, the majority announces a general rule that any defendant seeking
credit for another’s settlement payments must have asserted a nonparty
defense. This broader rule seems to me to raise some fairly complex
problems that are better left for another day.
Consider the situation where the third party (TP) has not been named
as a defendant at the time the named defendant (D) is obligated to assert
any nonparty defense. D must assess whether there are any other potential
defendants and then decide whether to assert a nonparty defense. If D does
assert it, a likely consequence is that TP will be named by plaintiff (P)
as a defendant and become an antagonistic co-defendant who will
considerably complicate the case and perhaps prejudice a successful defense
by D. On the other hand, if D does not assert the defense, D forfeits any
contribution by TP as a credit against D’s liability. It seems likely that
under this rule some defendants, or their attorneys, will be intimidated by
fear of being judged in hindsight and will assert a third party defense
even though they are not inclined to do so.
I expect there are more angles to this. At a very minimum, unless TP
has already settled at the time D must assert a nonparty defense, the
tactical considerations from the defense’s point of view are not usually
those identified by the majority, ___ N.E.2d at ___, as an assessment of
the likely attribution of liability to TP. Rather, many defendants will
focus principally on an assessment of the risk of TP’s becoming an
adversary versus the potential benefit of dividing the exposure. Often D
must make this choice without knowing the reasons why TP is not a
defendant. These could be many. One of them may be the fact that TP has
already settled before suit was filed. D may or may not be able to learn
whether this has happened, and if so for how much, before the deadline for
asserting or risking waiver of a nonparty defense.
In this case, Skinner and Broadbent says it took the view that
Stewart had no liability and therefore Skinner could not ethically assert a
nonparty defense. This is certainly a defensible position under the Rules
of Professional Responsibility. It seems to me to be a poor policy to
force conflicts between the client’s financial interest and the lawyer’s
professional obligations by requiring D to assert a position with which it
disagrees in order to preserve its right to setoff. From the client’s
point of view, the attorney’s ethical concerns prohibit the assertion of a
nonparty defense and result in giving away the client’s money if a third
party later settles and there is no setoff under the rule of this case.
Asserting a nonparty defense in the context where P has already sued TP is
less problematic. D at least has P’s word for it that there is a basis for
a claim against TP.
In short, I think the net result of the majority’s broad ruling may
be more multiparty litigation. This is not a goal to be fostered. I would
restrict today’s holding to situations where TP has been dismissed with
prejudice, and perhaps also where D is charged with knowledge that TP has
been given a release. We can resolve this issue in other contexts as
litigation arises and we deal with real sets of facts.
I also do not understand the claim that this rule fosters settlement
between P and the remaining defendant. The majority says P is more likely
to settle for a net $65,000 than a net $40,000. This is presumably true if
P’s claim is of equal value under each scenario. But that is not the case.
The “one satisfaction” rule applies to judgments where the parties have
not reached an agreement, not to agreed settlements. Where the parties
have to reach an agreement, they will do so on the basis of their relative
present dollar valuations of the claim after costs of litigation and after
any setoffs the law will allow. In the future, every set of litigants will
live under a regime that either does or does not produce a setoff against a
judgment against D for amounts received from TP. Resolution of that legal
issue affects the value of P’s claim against D and the amount of D’s net
exposure. Assume, as the majority does, that D and P have perfect
information and value the total claim at $X. If the law gives D a setoff
for the $Y received from TP, then P’s remaining claim is worth $X minus $Y.
If not, it is worth $X. Either way, both parties will know that and
bargain on that assumption. P has no reduced incentive to settle a claim
for less because the claim might be worth more under a different legal
rule. Similarly, D has no incentive to pay more than the claim would be
worth if the law were different. As a result, resolution of this issue
seems to me to be a null factor in terms of fostering agreed resolutions
between P and D.
The rule the majority announces may be of some value in promoting the
initial settlement between P and TP, because P will be able to retain that
amount and not suffer reduction of any judgment P may later obtain from D.
This is another way of saying that multiparty litigation can produce a sum
of the parts result for P that is greater than the whole. It is not
obvious that this is a policy goal that should be furthered because it
encourages adding fringe parties with marginal ultimate exposure. Parties
who see their costs of litigation as a major portion of their ultimate
exposure are often more inclined to settle. This, in turn, adds
proportionally more to the transactional costs of resolving the litigation
than it does to the transfer of payments from wrongdoers to injured
parties. P’s incremental incentive to settle with TP is also
counterbalanced by the fact that the total cost to D of going to trial and
losing is higher if the “one satisfaction” rule does not apply. As a
general proposition, the effect of this will be that the cost of litigation
is a smaller percentage of D’s total exposure and also a smaller percentage
of P’s potential net recovery. That reduces the incentive of both to
settle for the same reason that increased costs of litigation raise that
incentive.
Thus, although the majority’s rule does add to the net recovery of P,
and may encourage P to settle with TP, it is not without a cost to the
overall goal of simplifying litigation. It does not seem to me that there
is a parallel effect on TP’s willingness to settle with P. Unless TP has
some unusual indemnity or recoupment agreement with D or P or both, it will
be a matter of indifference to TP whether or not D gets a setoff for the
amounts P receives from TP.
This rule does result in a bigger net transfer to P if no third party
defense is asserted. Another way to say the same thing is that it
penalizes D for not asserting a third party defense. For the reasons
stated, I believe there is a significant risk that it will do so unfairly
in some circumstances. All of the foregoing, and a great deal of the
majority opinion, ultimately turns on speculation as to how parties will
behave in settings that will vary with the number of parties, the amount of
the exposure of each, the procedural posture of the case, who has asserted
what against whom, and undoubtedly other factors. I would leave these to
be resolved on a case-by-case basis as they arise.
-----------------------
[1] The Mendenhalls do not dispute the trial court’s decision to credit the
final verdict with the two $5,000 medical expense payments. (Appellant’s
Br. at 3-4; R. at 5.)
[2] This case does not present the important allied question of whether the
Comparative Fault Act affects the traditional way in which our common law
gives credits for settlement amounts when the settling defendant has been
added as a nonparty.
[3] Formerly Ind. Code § 34-4-33-1.
[4] Formerly Ind. Code § 34-4-33-10.
[5] Formerly Ind. Code § 34-4-33-5.
[6] Prior to amendment in 1995, under Ind. Code § 34-4-33-2, the statute
defining nonparty read: "'Nonparty' means a person who is, or may be,
liable to the claimant in part or in whole for the damages claimed by the
claimant. A nonparty shall not include the employer of the claimant."
[7] We affirmed the trial court's ruling because it was made under prior
precedent, which allowed the admission of such evidence.
[8] We are also aided by amicus curiae briefs from the Defense Trial
Counsel of Indiana and the Indiana Trial Lawyers Association.
[9] Assume, for example, that the plaintiff sues two defendants, one of
whom settles for $65,000. The litigating defendant adds the settling
defendant as a nonparty. At trial, the jury finds $100,000 in damages,
allocates no fault to the plaintiff, and assigns 50% fault to the defendant
and 50% to the nonparty. In this instance, the plaintiff is
overcompensated because the plaintiff will receive $115,000, an amount
larger than the awarded damages.
[10] Our colleague Justice Boehm notes in his concurrence that there are
many other reasons why a defendant might name a nonparty or decide to
foreswear doing so. He suggests we litigate on a case-by-case basis
whether the various strategic choices made by defense lawyers should result
in credit or no credit after trial. We think that this would necessarily
be a complicated moving target and that a sounder approach is to let
lawyers make the best choices they can with knowledge about predictable
future consequences.