IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
JONATHAN B. SPRINKLE,
Plaintiff,
-vs-
BURLINGTON NORTHERN RAILROAD
COMPANY,
Defendant and Third
Party-Plaintiff,
-vs-
THE TIRE GUYS, d/b/a TIRE-RAMA,
Third-Party Defendant.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Plaintiff:
Charles C. Dearden argued; Murphy, Robinson, Heckathorn
& Phillips, Kalispell, Montana
For Defendant:
Gary M. Zadick argued; IJgrFn, Alexander, Zadick & Slovak,
Great Falls, Montana
For Amicus Curiae:
Poore, Roth & Robinson; Rrendon J. Rohan argued for
Glen Rehbein Excavating, Butte, Montana
Gough, Shanahan, Johnson & Waterman; Ronald Waterman
argued for Kraus Construction & Riverside Construction,
3-
& Helena, Montana
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Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Honorable Jack D. Shanstrom, United States Magistrate,
United States District Court for the District of Montana has
certified for our decision under Rule 44, Montana Rules of
Appellate Procedure, a question of law as follows:
Plaintiff commences a negligence action against
defendant # 1. Defendant # I in turn joins
defendant # 2 seeking contribution. Prior to
trial, defendant # 1 settles with the plaintiff in
return for a general release of all claims,
including claims against defendant number 2. Can
defendant # 1 continue its action for contribution
against defendant # 2 under Montana law?
In connection with the certified question, agreed facts,
stipulated to by the parties and approved bv the Magistrate
have been submitted. They are as follows:
Plaintiff, Johnathan B. Sprinkle, was injured while
in the course and scope of his employment with the
defendant, Burlington Northern Railroad Company
(BN). He commenced this action against BN pursuant
to the Federal Employers' Liability Act (FELA) 45
U. S. C. 55 51, et seq., alleging negligence on the
part of BN. RN subsequently joined Tire GUYS,
d/b/a Tire-Rama, as a third party defendant
alleging negligence and seeking contribution
pursuant to 5 27-1-703, MCA.
Before trial, BN settled with Sprinkle and received
a general release of all claims, including claims,
if any, against Tire Guys. BN is pursuing its
claim for contribution against Tire Guys. Tire
Guys has moved for summary judgment contending that
BN no longer has a cause of action against it.
We determine in this case that under Montana law as it
existed and is pertinent to these facts, BN has no right of
contribution against Tire Guys. The a.nswer to the certified
question therefor is, "no."
All parties agree, including amici curiae, that there
was no right of contribution between joint tortfeasors at
common law, and that in Montana, a right to contribution, if
any exists, must be found in statutory law. Consolidated
Freightways Corporation of Delaware v. Osier (1979), 185
Mont. 439, 605 P.2d 1076. We are required then to examine
the provisions of 5 27-1-703, MCA, as it existed at the time
here pertinent to determine if statutory Law provj-des such
right of contribution to BN:
Section 27-1-703. Multiple -
P
defendants jointly and
-
severally liable--right of contribution.
(1) Whenever the neqligence o f any party in any
action is an issue, each party against - whom
-
recovery mav be allowed is jointly and severally
A -
liable for the amount that may be awarded to the
claimant but has the right of contribution from any
other person whose negligence may have contributed
as a proximate cause t o t h e injury complained of.
(2) On motion of any party against whom a claim is
asserted for negligence resulting in death or
injury to person or property, any other person
whose negligence may have contributed as a
proximate cause to the injury complained of may he
joined as an additional party to the action.
.
.
Whenever more than one person is found to have
contributed as a proximate cause to the injury
complained of, the trier of fact shall apportion
the degree of fault among such persons.
Contribution shall be roportional to the
negligence - - partirs aginst whom r e c o v e r y 3
of the
allowed. Nothing contained in this section shall
malce any party imdispensahle pursuant. to Rule 19,
M.R.Civ.P.
(3) If for any reason all or part of the
contribution from a party liable for contribution
cannot be obtained, each of the other parties
against whom recovery is allowed is liable to
contribute a proportional part of the unpaid
portion of the noncontributing party's share and
may obtain judgment in a pending or subsequent
action for contribution from the noncontributi nq
party. (Emphasis added. 1
The foregoing statute was interpreted by us in State ex
rel. Deere and Company v. District Court ( 1 9 8 6 ) ~- Mont .
-, 730 P.2d 396. In Deere the plaintiff Robert Campbell
was injured when a bulldozer manufactured by Deere
unexpectedly moved backward and struck Campbell. At the time
of the accident, the Deere tractor was being operated by Jim
Lott, an employee of Wade's Backhoe Service. Campbell
initially sued both Deere and Wade's Backhoe. Before
Campbell's complaint was served upon Wade's Backhoe, Deere
settled with Campbell for $25,000. Campbell signed a release
of all claims against Deere and agreed in the release to
indemnify Deere for any amount it might thereafter be
required to pay as a joint tortfeasor. Campbell reserved in
the release his right to pursue an action against. blade's
Backhoe. Campbell then proceeded forward with his negligence
action against Wade's Backhoe.
Wade's Backhoe filed a third party complaint against
Deere seeking indemnity and contribution. Subsequently Deere
filed a motion for summary judgment relying on the release
signed by Campbell. The District Court denied Deere's motion
for summary judgment. Deere then sought and was qranted a
writ of supervisory control before this Court.
In resolving the contribution issue in favor of Deere we
explained as follows:
In Montana, there is but one statute on the
subject, the amended § 27-1-703, MCA, and from it
we determine that a joint tortfeasor who settles
with a claimant before judgment on the claim is
entered in a district court is not subject to
claims for contribution or indemnity from the
nonsettling joint tortfeasors against whom judgment
may be rendered. Even though the amended section
does give a sued joint tortfeasor the right to
bring in other joint tortfeasors as defendants in
order to insure contribution, and even though the
section states that the trier o f f a c t is to
determine the degree of negligence amonu each of
the joint tortfeasors, the right of contribution
under the amended statuteis "proportional - -to the
negligence - - parties against whom recovery is
of the
allowed." Clearly that statutory language excludes
a party against whom recovery is not allowed, e . ? . ,
a tortfeasor who has previously settled.
Consequently, under amended § 27-1-703, there
is no right of contribution under Montana law in
favor of a joint tortfeasor or tortfeasors against
whom judgment for the plaintiff is entered from
other joint tortfeasors who have settled with the
plaintiff prior to judgment. (Emphasis added.1
In Deere, the nonsettling joint tortfeasor, against whom
the tort action remained, sought contribution from a settling
tortfeasor before entry of judgment. (Tn using the term
"joint tortfeasor" we intend to include the term "concurrent
tortfeasor"). In this case the settling tortfeasor has taken
a full release from the plaintiff which completely settles
plaintiff's claim against all tortfeasors, but seeks
contribution for the settlement before judgment from the
nonsettling tortfeasor. Regardless of the change in
positions here as between the joint tortfeasors, the
principle announced in Deere remains the same. The
plaintiff's case has ended and the nonsettling tortfeasor is
not one "against whom recovery is allowed." As we said in
Deere, supra, that statutory language excludes from any duty
of contribution a party against whom recovery is not allowed.
We have been consistent in following the principle set
out in -Deere. In North v. Bunday (19871, - Mont. - 735
- ,
P.2d 270, we held that our comparative negligence statute
applies only to "those defendants who remain in the lawsuit,
and not other possible tortfeasors who may have settled with
the plaintiff before judgment was entered in the lawsuit."
735 P.2?. at 275. In Kuhnke v. Fisher (1987), Mont - . I
740 P.2d 625 relying on Deere, we said that under the
contribution statute "[tlhe general rule is that a settling
party does not fall under 'parties against whom recovery is
allowed,' as once a party settles with a plaintiff, he is no
longer required to contribute." 7 1 0 P.2d at 629.
~n Sevalstad v. Glaus (19g7), - Mont. -, 737 P.2d
1147; we said:
In Deere, we held that "a joint tortfeasor who
settles with a claimant before judgment on the
claim is entered in a district. court is not subject
to claims for contribution or indemnity from the
nonsettling joint tortfeasors against whom judgment
may be rendered. (Citations omitted.)
Deere is controlling, not withstanding 5 27-1-703,
MCA, which gives a joint tortfeasor the right to
bring in other tortfeasors in order to insure
contribution.
Accordingly, Glaus has no right of
contribution against Neifert, since Neifert was
dismissed with prejudice from the action brought by
Sevalstad.
BN contends that the legislature, in adopting §
27-1-703, MCA, intended to provide a right of contribution
that would be consonant with the Uniform Contribution Among
Tortfeasors Act (UCATA), although Montana has never adopt-ed
that act. The provisions of UCATA are not helpful however to
RN. For one thing S 2(a) of UCATA provides that the
"relative degrees of fau1.t cannot be considered.." In other
words, under UCATA, the fault of the respective defendants is
not compared, but the right of contribution is based upon per
capita rather than pro rata fault. UCATA was first proposed
before the general adoption by the several states of
comparative negligence law in tort cases. As a result those
states that adopted UCATA have had to amend their statutes to
account for the problems that arise out of comparative
negligence. The usual result is that the states have
abandoned UCATA as having no effect when comparative
negligence is the rule. See, e.g., Bartlett v. New Mexico
Welding Supply Inc. (N.M.Ct.App.1982), 98 N.M. 152, 646 P . 2 d
579; cert.den. 98 N.W. 336, 648 P.2d 794 (1982). For that
reason, BN's reliance upon Coniaris v. Vail Associates, Inc.
(Colo. 1978), 586 P.2d 224 is not instructive because it is
based on Colorado's UCATA. Kennedy v. City of Sawyer (Kan.
1980), 618 P.2d 788 is also not pertinent, because it relates
to an action for implied indemnity. Unlike contribution the
rights to indemnity in Montana are set out in our statutes.
Section 28-11-301 et seq. MCA.
We therefore hold that since, under the facts submitted,
a recoverv by the plaintiff against Tire Guys is not
possible, a right of contribution for BN under S 27-1-703,
MCA, does not exist.. We therefore answer the certifie3.
question "No." /7
Justice