No. 93-631
IN THE SUPREME COURT OF THE STATE OF MONTANA
MICHAEL BROCKIE, as Personal
Representative of the Estate
of ARIC C. BROCKIE, Deceased,
Plaintiff and Appellant,
OM0 CONSTRUCTION, INC.,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kurt M. Jackson, Hoyt & Blewett,
Great Falls, Montana
For Respondent:
Michael J. Milodragovich and
Margaret L. Sanner, Milodragovich,
Dale & Dye, Missoula, Montana
Submitted on Briefs: June 23, 1994
D E C 1 3 1994 Decided: December 13, 1994
~usticeWilliam E. Hunt, Sr., delivered the opinion of the Court.
Appellant Michael Brockie, as personal representative of the
estate of Aric ~rockie,
appeals from an order of the First Judicial
District Court, Lewis and Clark County, denying appellant's request
for a new trial on the question of damages for the survivorship
action.
Following filing of his appeal, appellant filed a notice of
subsequent authority pursuant to this Court's recent decision in
Newville & Gannet v. State of Montana, Department of Family
Services (Mont. 1994), 51 St. Rep. 758, asking us to apply Newville
retroactively to the wrongful death award. We discuss the
application of the Newville decision in this opinion.
Reversed and remanded.
We state the issues as follows:
1. Was the jury's special verdict finding zero survivorship
damages to the estate of Aric Brockie contrary to the evidence?
2. Did the District Court err by denying appellant's motion
for a partial new trial on the issue of the survivorship damages
sustained by Aric Brockielsestate?
Aric Brockie was killed in an automobile accident on
November 26, 1989, on Interstate 94, east of Billings. Aric was a
passenger in a vehicle that skidded on an icy bridge deck and
collided with a large, portable construction sign owned by
defendant Omo Construction, Inc.
Brockie v. Omo Construction, Inc. was first tried in September
1991, and resulted in a verdict of "no negligence" in favor of
defendant Omo. Prior to trial, appellant settled with and released
the driver. This court reversed and remanded on the grounds of
misconduct by the jury foreman. Brockie v. Omo Construction, Inc.
(1992), 255 Mont. 495, 844 P.2d 61.
On remand, the jury returned a special verdict finding Om0
35 percent negligent for proximately causing Aric's injuries and
death. The jury found that the non-party driver was 65 percent
negligent for proximately causing Aric's injuries and death. The
jury awarded Aric's parents $170,000 in wrongful death damages.
That amount was adjusted to reflect the 35 percent negligence
attributable to Omo. The jury awarded Aric's estate zero dollars
in survivorship damages.
Appellant filed a motion for a partial new trial pursuant to
Rule 59, M.R.Civ.P., limited to the issue of survivorship damages
sustained by Aric's estate. The District Court issued an order
denying appellant's motion. Appellant appeals the court's order.
ISSUE 1
Was the jury's verdict finding zero survivorship damages to
the estate of Aric Brockie contrary to the evidence?
Appellant argues that the jury failed in its duty to award
survivorship damages to the estate, despite the fact that the
evidence and stipulations established funeral and medical expenses
and a loss of future earning capacity for the remainder of Aric's
work life expectancy.
We have held that it is not the function of this Court to
agree or disagree with a jury's verdict. Schulke v. Gemar (1994),
264 Mont. 184, 870 P.2d 1378. Arnold v . Boise Cascade Corporation
(1993), 259 Mont. 259, 856 P.2d 217. This Court's role is to
determine whether there was substantial evidence to support the
verdict. Schulke, 870 P.2d at 1380; Arnold, 856 P.2d at 220. If
conflicting evidence exists, w e do not retry a case because the
jury chose to believe one party over another. Simchuck v. Angel
Island Community Association (1992), 253 Mont. 221, 833 P.2d 158.
However, a ''jury may not disregard uncontradicted, credible,
non-opinion evidence. Putnam v. Pollei (1969), 153 Mont. 406,
The record shows that prior to the second trial, the court
granted appellant's motion for partial summary judgment finding
that Aric survived the accident, entitling his estate to a
survivorship claim pursuant to 5 27-1-501, MCA, which carries
forward the claims the injured party had before death. Montana's
survivorship statute, 5 27-1-501, MCA, provides in pertinent part:
(1) An action, cause of action, or defense does not
abate because of the death or disability of a party or
the transfer of any interest therein, but whenever the
cause of action or defense arose in favor of such party
prior to his death or disability or transfer of interest
therein, it survives and may be maintained by his
representatives or successors in interest. . ..
(2) Actions brought under this section and 27-1-513
must be combined in one l e g a l action, and any element of
damages may be recovered only once.
The statute allows recovery by the decedent's personal
representative of decedent's lost earnings from the time of injury
to death; the present value of his reasonable earnings during his
life expectancy; his medical and funeral expenses; reasonable
compensation for his pain and suffering; and other special damages.
Swanson v. Champion International Corp. (1982), 197 Mont. 509, 515,
646 P.2d 1166, 1169. We have consistently held that the estate's
right of recovery in a survivorship action is identical to that of
the decedent's had he lived. "No reason exists why the scope of
the action should diminish because of his death." Beeler v. Butte
& London Development Copper Co. (1910), 41 Mont. 465, 478-79, 110
P. 528, 532; see also Swanson, 646 P.2d at 1169; Hurley v. Star
Transfer Co. (1962), 141 Mont. 176, 184, 376 P.2d 504, 508; Autio
v. Miller (1932), 92 Mont. 150, 169, 11 P.2d 1039, 1046.
The parties stipulatedthat Aric's estate incurred funeral and
medical expenses totaling $2,601.10. The parties also stipulated
that at the time of his death, Aric was 19.45 years old and that he
had a work life expectancy of 40.75 years. Appellant presented
evidence that in the year before his death, Aric earned $3,239.08
at an Eastern Montana College computer lab. Appellant's expert
testified that Aric would have been expected to earn between
$878,518 and $1,113,929 during his work life, depending on the type
and amount of his education.
In Putnam, the personal representative of a college student
killed in an automobile accident brought a survivorship action
under 5 93-2824, RCM, the predecessor of 5 27-1-501, MCA. The
plaintiff in Putnam offered expert testimony as to the decedent's
potential loss of future earnings; the decedent's life expectancy;
and testimony concerning the decedent's employment history,
education, and personal abilities. No evidence was submitted as to
5
the amount of money the decedent earned at her employment. The
jury returned a verdict of $449.95, the amount of the decedent's
personal property destroyed in the accident. The jury awarded
nothing for the decedent's loss of future earning capacity. The
district court set aside the verdict and ordered a new trial
limited to the issue of damages and held that there was
insufficient evidence to support a verdict that the decedent had no
future earning capacity. We affirmed and stated that the verdict
was impossible, given the uncontradicted evidence which established
an earning capacity at the time of death. We held that "there was
no substantial evidence justifying the jury verdict awarding no
damages for decedent's loss of earning capacity." Putnam, 457 P.2d
at 413.
In the present case, the evidence offered by appellant to
establish survivorship damages was either stipulated to or offered
without contradiction. The jury did not have the choice whether to
believe one party's evidence over the other. As a result, the
jury's verdict in the present case is as impossible as was the
verdict in Putnam. There is no substantial evidence to justify the
jury's failure to award survivorship damages.
In Rudeck v. Wright (l985), 218 Mont. 41, 709 P.2d 621, Mr.
Rudeck died after a "lap mat" was negligently left in his stomach
during surgery. His wife filed two medical malpractice claims for
wrongful death, and in her capacity as personal representative of
her husband's estate, for his survival claims. The jury returned
a verdict awarding Mrs. Rudeck $75,000 on her wrongful death claim
and zero on the estate's survival claim. The district court
granted Mrs. Rudeckls motion for a new trial. The defendant
appealed.
We affirmed and held that the jury's verdict in awarding
damages on the wrongful death claim, but no damages on the survival
claim, was "totally inconsistent and contrary to the mandates of
the law." Rudeck, 709 P.2d at 624.
If Mr. Rudeck's death was caused by the negligence of
defendant Wright, then the earlier injury to Mr. Rudeck
which culminated in his death must have been caused by
the same negligence. If the same negligence ... caused
the personal injury to the living Mr. Rudeck and that
same negligence caused his later death, the jury would be
compelled to award damages for Mr. Rudeck's personal
injury (which were sought in the survival claim on his
behalf by the personal representative of his estate) as
well as awarding damages on the wrongful death claim.
Because the jury did not do so, its verdict is
inconsistent and is against the law.
Rudeck, 709 P.2d at 624.
Aric Brockie's death was caused in part by respondent's
negligence. The injuries to the living Aric Brockie were caused by
the same negligent acts of respondent that resulted in Aric
Brockie's death. The jury, therefore, was compelled to award
survivorship damages for Aricrspersonal injuries. We conclude, as
we did in Rudeck, that because the jury failed to award damages for
AricSs personal injuries caused by respondent's negligence, its
verdict is "totally inconsistent and contrary to the mandates of
the law." Rudeck, 709 P.2d at 624.
We hold that the jury's special verdict finding zero
survivorship damages to the estate of Aric Brockie was contrary to
the evidence.
ISSUE 2
Did the District Court err by denying appellant's motion for
a partial new trial on the issue of survivorship damages sustained
by Aric Brockie's estate?
A new trial may be granted on grounds of insufficient evidence
to justify the verdict. Section 25-11-102(6), MCA. Our standard
of review of a ruling on a motion for a new trial is whether the
district court abused its discretion. Estate of Spicher v. Miller
(l993), 260 Mont. 504, 506, 861 P.2d 183, 184; Gass v. Hilson
(1990), 240 Mont. 459, 461, 784 P.2d 931, 933. Under Rule 61,
M.R.Civ.P., the trial court must determine whether a refusal to
grant the motion for a new trial would appear inconsistent with
substantial justice.
In Issue 1, we held that there was insufficient evidence to
justify the jury's verdict as to survivorship damages. BY
answering Issue 1 in the affirmative, we must necessarily answer
Issue 2 in the affirmative pursuant to 5 25-11-102 (6),MCA, and our
decisions in Putnam and Rudeck.
We hold the District Court erred by denying appellant's motion
for a new trial on the issue of the survivorship damages sustained
by Aric Brockie's estate. This matter is remanded to the District
Court for a new trial on the issue of survivorship damages.
Appellant's notice of subsequent authority pursuant to our
decision in Newville asks us to apply Newville retroactively to the
wrongful death award. In that case, we concluded that the
allocation of percentage of liability to non-parties violates
substantive due process. We held that the relevant portion of
27-1-703 (4), MCA, is unconstitutional. when a statute is
declared unconstitutional, it is void ab initio. State v. Coleman
(1979), 185 Mont. 299, 319, 605 P.2d 1000, 1013.
Respondent argues that Newville should not be applied
retroactively. Respondent concedes that the general rule regarding
Itchange of law" is that this Court must apply the law that is in
effect at the time it renders its decision. Lee v. Flathead County
(1985), 217 Mont. 370, 704 P.2d 1060. Respondent asserts that the
changed law should not be applied when it is necessary to prevent
manifest injustice. See West-Mont Community Care v. Board of
Health and Educational Sciences (1985), 217 Mont. 178, 703 P.2d
850. Respondent argues that application of the statute as amended
would result in manifest injustice because respondent relied on the
pre-Newville statute and did not name the driver as the third-party
defendant. Had the trial taken place under the law after Newville,
respondent maintains it would have protected its rights to
indemnity and contribution from the driver by naming him as a
third-party defendant.
Alternatively, respondent argues that in cases where new law
has been applied retroactively, this Court has allowed the
prejudiced party a new trial and the opportunity to amend the
9
pleadings. Haines Pipeline v. MPC (1991), 251 Mont. 422, 830 P.2d
1230.
Both parties relied on pre-Newville law when presenting their
cases at trial. The general rule is that a change of law between
the law applied at trial and the time of appeal requires this Court
to apply the changed law. Haines, 830 P.2d 1230; Lee, 704 P.2d
1060; West-Mont, 703 P.2d 850; Wilson v. State Highway Commission
(1962), 140 Mont. 253, 370 P.2d 486.
An exception to the general rule, is that the new law will not
be applied when it is necessary to prevent manifest injustice.
Haines, 830 P.2d at 1238. This Court has defined manifest
injustice as an application of a new law that impairs a vested
right. West-Mont, 703 P.2d at 852. "A judgment is not a vested
right while it is subject to review or while an appeal is pending.lt
Haines, 830 P.2d at 1238.
Because this case is still on appeal, respondent has no vested
right in the pre-Newville application of § 27-1-703(4), MCA.
The jury found respondent 35 percent negligent, and the
non-party driver 65 percent negligent, in causing Aricts injuries
and death. The jury awarded appellant $170,000 in wrongful death
damages, and the court adjusted that amount to $59,000 to reflect
the jury's allocation of negligence.
On remand, the District Court will reinstate the full amount
of the wrongful death award pursuant to our decision in Newville.
That amount will be offset dollar-for-dollar by the pretrial
settlement with the non-party driver.
W e r e v e r s e t h e j u r y v e r d i c t f i n d i n g z e r o s u r v i v o r s h i p damages
and remand f o r a new t r i a l l i m i t e d t o t h e i s s u e of s u r v i v o r s h i p
damages.
Justice
W e concur:
Chief J u s t i c e
t
J u s t ices
Justice Fred J. Weber dissents as follows:
The majority opinion states issue one as follows:
1. Was the jury's verdict finding zero survivorship
damages to the estate of Aric Brockie contrary to the
evidence?
That statement of the issue addresses only a part of the aspects
which should be considered on this issue. I suggest that the
defendant's statement of issue is more complete:
1. Whether the district court abused its discretion in
refusing to grant a new trial on the sole issue of
survivorship damages where the jury awarded $170,000 as
wrongful death damages.
In considering this issue, it is necessary to keep in mind the
questions answered by the jury in the special verdict form prepared
by the plaintiff:
QUESTION NO. 6 :
Without making any reductions for percentages of
negligence, what are Che total damages sustained by
Michael and Susan Brockie as the heirs of Aric Brockie?
ANSWER :
$ 170,000
If you have assessed damages in answer to question
number six, you must answer question number seven. If
you have not assessed damages in answer to question
number six, you must proceed to answer question number
seven.
QUESTION NO. 7:
Without making any reduction for percentages of
negligence, what are the total damages sustained by the
estate o Aric Brockie as the result of his death?
f
ANSWER :
$ - 0-
From the wording of the special verdict it appears quite
possible that survivorship damages could have been included in the
$170,000 answer to question six. That was the view of the trial
judge. Following is the analysis of the District Court in which it
denied plaintiff's request for a new trial on the issue of
survivorship damages only:
ORDER ON PLAINTIFF'S REQUEST FOR A NEW TRIAL
The jury in this matter returned its verdict on
October 20, 1993. In that verdict, the jury found that
the total damages suffered by Michael and Susan Brockie
as the heirs of Aric Brockie were $170,000. The jury
further found that Defendant Omo was 35 percent
negligent, which translates into an award of $59,500 for
the Brockies. The attorneys for the Brockies have moved
for a new trial on the issue of survivorship damages
alone. The Brockies argue that there is no dispute but
that Axic survived the accident and had a survivorship
action. The Court agrees that this was undisputed. . .
Defendant contends that the jury could totally
disregard the expert testimony if they wanted to. This
is consistent with the supreme court holding in Putnam v.
Pollei, 153 Mont. 406, 457 P.2d 776 (1969). . . .
Neither in that special verdict form nor in the closinq
arsuments did Plaintiff'sattornevs offer any quidance to
the iurv as to how the damaqes were to be split up
between Aric's parents as the heirs in a wronsful death
action and damaqes to be awarded to the personal
representative of the estate. It would not have been
difficult at all for such a jury questionnaire to have
been drafted and offered, but none was.
The Brockies insist that they have not had a fair
trial. This Court feels that they have received a fair
trial. All of the evidence that they wanted introduced
was introduced. The special verdict form that they
offered was used by the Court. The $170,000 that the
iurv did award could well have been to compensate for
Aric's medical and funeral expenses, alona with his
earninq capacity and damaqes to his parents. This we
will never know. Primarily we will not know this because
of the way the verdict form was crafted. For Plaintiff s
counsel to now complain about the verdict form that w a s
crafted bv Plaintiff does not find a receptive audience
with this Court. Further, this is not a case as was
Putnam where damages of $445 were awarded, nor was it a
case such as Flaherty v. Butte Electric Railway, 42 Mont
89, 111 P.2d 348 (1910) where $100 damages were awarded
for the loss of a three year old child.
To allow a new trial on the survivorship action
alone would allow Plaintiff to keep the money they have
already won and roll the dice again. Thev have won a
substantial award from the jury, and the fact that it is
not broken out between the survivorship and wronsful
death action is not the fault of Defendant nor this
Court.
Therefore, Plaintiff Is request for a new trial on
the question of damages for the survivorship action is
hereby denied. (Emphasis supplied.)
In addressing this issue, the majority opinion emphasizes the
uncontradicted evidence which establishes survivorship damages
which should have been awarded, including funeral and medical
expenses in the amount of $2,601.10 and earnings testified to by
the plaintiff s expert in an amount of $878,518 to $l,ll3,929. The
majority opinion then concludes there is no substantial evidence to
justify the juryls failure to award such survivorship damages.
The foregoing analysis does not addxess the specific matters
considered by the District Court in its denial of new trial. An
example is the reference of the majority opinion to Putnam v.
Pollei (1969), 153Mont. 406, 457 P.2d 776, in which the statement
is made that the jury's verdict in the present case is as
impossible as was the verdict in Putnam, This fails to address the
analysis correctly made by the District Court where it pointed out
that in Putnam, the damages awarded were only $449.25, whereas in
the present case, damages were awarded in the amount of $1701000
and that amount could have included survivorship damages.
In a similar manner, the majority opinion relies on Rudeck v.
Wright (l985), 218 Mont. 41, 709 P.2d 621. The majority opinion
points out that in Rudeck, a new trial was awarded in a case in
which the jury returned a verdict awarding Mrs. Rudeck $75,000 on
a wrongful death claim and $0 on the estate's survival claim. The
key difference between Rudeck and the present case is that in
Rudeck the Court allowed a new trial on issues so that Mrs.
Rudeck was not allowed to retain the $75,000 awarded her on the
wrongful death damages and try again the issue of the estate1s
survivorship damages.
As above quoted, the District Court concluded plaintiff had a
fair trial. It emphasized that the special verdict form had been
prepared by the plaintiff and that the "$l7O,OOO that the jury did
award could well have been to compensate for Aricls medical and
funeral expenses, along with his earning capacity and damages to
his parents. This we will never know." The District Court further
emphasized that neither in the special verdict form nor in the
closing arguments did plaintiff's attorneys offer any guidance to
the jury as to how damages were to be divided between Aricls
parents as his heirs in a wrongful death action and damages to be
awarded to the personal representative of the estate.
I conclude there is no proper basis for overturning the denial
of a new trial by the District Court, and I dissent on Issue I.
On Issue I, I do point out that the argument which appeared
strongest to me in behalf of the plaintiff was the possible
contradiction between the various instructions. Instruction No. 24
stated as follows:
Your award should include reasonable compensation for
burial expenses and funeral services for the deceased and
any reasonable medical. charges which were incurred in
connection with the death.
Defendant argues that this instruction fails to clearly tell the
jury that the amount relating to medical and funeral expenses
should be allocated to the estate on a survivorship claim. That
argument does not consider the strongest argument under Instruction
No. 34 which stated:
Your award should include reasonable compensation to Aric
Brockiels estate for:
The amount of lost earnings between the time
of death and the time of trial; the present
value of Aric Brockie's reasonable earnings
after the date of trial during the remainder
of his life expectancy; and reasonable
compensation for decedent's loss of
established course of life. (Emphasis
supplied.)
While r i t is true that the special verdict form did not sufficiently
advise the jury as to how to divide the damages, and while there
was no explanation made by the plaintiff in the course of final
argument, the above instruction certainly raises a significant
issue. As a result, I believe it would have been proper for the
majority opinion to conclude that there was sufficient confusion
here to require a new trial and then to order a new trial on
aspects of the case. This would include a new trial on the issue
of the $170,000 of damages. It would also allow consideration of
the Newville case which is hereafter mentioned.
Issue I1 is stated by the majority opinion as:
Did the District Court err by denying appellant's
motion for a partial new trial on the issue of
survivorship damages sustained by Aric Brockiels estate?
The defendant's proposed issue is stated as follows:
Whether a jury award allocating $170,000 in wrongful
death damages to the decedent's heirs, but $0 dollars in
survivorship damages to the decedentls estate, is
reversible as contrary to t h e law when the plaint;iff-
appellant failed to provide any guidance or instructions
to the jury concerning allocation of damages, and the
jury followed all instructions actually given to it.
The majority opinion concluded that its answer on issue one
required a reversal of the District Court. The authority for this
decision is Putnam in which the key distinction from this case was
the award to Putnam of insignificant damages in the amount of
$449.25. The distinction from Rudeck is that in Rudeck, the entire
case was remanded for a new trial including the $75,000 awarded, as
compared to the present case where the plaintiff is allowed to
retain his share of the $170,000, but is allowed to go to trial on
the issue of survivorship damages.
For the reasons set forth under Issue I, I dissent from the
conclusion that the District Court erred in denying the plaintiff's
motion for a partial new trial on the issue of survivorship
damages.
Newville Application
The majority opinion points out that the plaintiff asks us to
apply Newville v. Montana Department of Family Services (Mont.
19941, 51 St.Rep. 758, 882 P.2d 793, retroactively to the wrongful
death award of $170,000. I think it important to quote the
pertinent portions of Newville:
We conclude that the allocation of percentases of
liabilitv to non-oarties violates substantive due Drocess
as to the plaintiffs.
We hold that the following portion of 5 27-1-703( 4 ) ,
MCA (1987), violates substantive due process:
. . . persons released from liability by the
claimant, persons immune from liability to the
claimant, and any other persons who have a
defense against the claimant . . .
. . .
We further conclude that the remainder of the
statute is capable of being executed in accordance with
the legislative intent. As a result of our holding of
unconstitutionality, we have eliminated that portion of
the statute which allowed an allocation of neqliqence to
non-uarties . . . (Emphasis supplied.)
Newville, 51 St.Rep. at 766-67. For this analysis, the key aspect
is that Newville determined there could be no allocation of
negligence to non-~arties.
In the present case, all of the parties and the District Court
as well, concluded that § 27-1-703, MCA (1987), did allow an
allocation of negligence to a non-party driver. As a result, the
verdict form prepared by the plaintiff and accepted by the
defendant and given by the District Court, and used by the jury,
resulted in a jury finding that the non-party driver was 65 percent
negligent and the defendant Omo was 35 percent negligent. At that
point, the understanding of the parties and of the District Court
was that the $170,000 in total damages would be reduced by the 65
percent negligence which was attributable to the non-party driver.
As a result of the interpretation in the majority opinion, this
understanding is disregarded and the $170,000 is reinstated in
full. On its face, this demonstrates a manifest injustice to the
defendant.
While the majority opinion does not explain the basis for all
of its decision, I assume that it is relying on State ex rel. Deere
and Co. v. District Court (l986), 224 Mont. 384, 730 P.2d 396,
which concluded that the 1985 version of 5 27-1-703, MCA, excluded
a party against whom recovery was not allowed--and having concluded
that recovery was not allowed against a settling defendant, held
that there was no right of contribution as to such settling
defendant. After Deere was issued, § 27-1-703, MCA, was amended
18
substantially in 1987. This 1987 amendment included the statement
that for the determination of the percentage of liability
attributable to each party whose action contributed to the injury,
the trier of fact should consider the negligence of a number of
stated persons, and specifically included persons released from
liability by the claimant and persons immune from liability to the
claimant. The amended statute required the trier of fact to
apportion the percentage of negligence to all such persons. I
emphasize the distinction between allowing an allocation of
neslisence to persons released from liability, and allowing
contribution from such persons released from liability. While this
view of the statute has not yet been considered by this Court--the
contention could be made under the 1987 statute that there can be
an allocation of negligence to a third-party defendant who has been
released from liability even though there could be no right of
contribution from that third-party defendant who has already
settled with the plaintiff. As an example, in the present case, if
the driver of the vehicle who had settled with the plaintiff had
been named as a third-party defendant, and if the jury verdict had
been the same as in the present case then the result could have
been precisely the same as in the present case--that being an award
of $170,000 for all of the damages of the plaintiff, but with the
defendant Omo only responsible for 35 percent of the same under the
revised statute.
I conclude there is a manifest injustice in the application of
Newville to the defendant in the manner which has been accomplished
in the majority opinion. I conclude that Newville is not authority
for the application made in the majority opinion because it did not
decide whether a party settling with the claimant still could be
named as third-party defendant to whom negligence could be
allocated.
I dissent from the majority opinion.
~ustice
Chief Justice J.A. Turnate joins in the foregoing dissent.
I
Justice Karla M. Gray joins in the foregoing dissent.
>
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