Nelson Ex Rel. Hirschfeld v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints

RUSSON, Justice,

dissenting:

I respectfully dissent. The majority holds that pursuant to the Joint Obligations Act (“JOA”), Utah Code Ann. §§ 15-4-1 to -7, Nelson’s release of Crabtree from the litigation does not also discharge his employer, the Church. However, the JOA is inapplicable in this case because its provisions relating to tort liability substantially conflict with, and are thus entirely superseded by, the Liability Reform Act (“LRA”), Utah Code Ann. §§ 78-27-37 to -48.

The majority argues that section 15-4-4 of the JOA serves to validate Nelson’s release of Crabtree and its attempted reservation of rights against the Church. Initially, it is important to note that Nelson failed to raise this argument in the lower court, and no “extraordinary circumstances” have been shown to justify review of the issue now. See Standard Fed. Sav. & Loan Ass’n v. Kirkbride, 821 P.2d 1136, 1139 (Utah 1991). However, even if Nelson had preserved the issue for appeal, the JOA does not apply to this case.

The JOA, originally effected in 1929, purports to define the relationships between “joint obligors” in the context of both contract and tort law. The JOA is premised on the existence of joint and several liability in tort law. By its own terms, section 15-4-4 of the Utah Code, upon which the majority relies, relates only to “several obligors” or “joint ... or ... joint and several obligors.”1 *516However, joint and several liability was abolished from Utah tort law when the LRA became effective in 1986. We stated in Sullivan v. Scoular Grain Co., 853 P.2d 877 (1993), that “the purpose of the [LRA] was, among other things, ‘abolishing joint and several liability’” in tort law. Id. at 880 (emphasis added) (quoting Preface, 1986 Utah Laws ch. 199); accord Krauss v. Utah State Dep’t of Transp., 852 P.2d 1014, 1018 (Utah.Ct.App.1993); see also Utah Code Ann. §§ 78-27-38(3) & -40(1). Justice Howe, in his concurring opinion, suggests that the LRA only partially abolished joint and several liability. This is plainly incorrect, however. Neither this court’s previous opinions nor the legislative history of the LRA restricts the scope of the abolishment of joint and several liability in the way Justice Howe suggests. On the contrary, both clearly imply that the abolishment is total. Thus, by completely removing joint and several liability from Utah’s tort scheme, the LRA, which is the Utah legislature’s latest word on the subject, has implicitly repealed the JOA and rendered it wholly inapplicable insofar as it purports to relate to tort liability.2

Because the JOA clearly does not apply in this case, it is necessary to discuss whether the LRA applies, as Nelson argues, to validate Nelson’s release of Crabtree and reservation of rights against the Church. Clearly, it does not. Nelson contends that the LRA’s definition of “defendant” includes a vicariously liable employer. In doing so, Nelson relies in part upon Krukiewicz v. Draper, 725 P.2d 1349, 1352 (Utah 1986), a ease dealing with the Comparative Negligence Act (“CNA”), which predated the LRA. In Krukiewicz, this court held that although such employers committed no wrong and thus were not common law joint tort-feasors, they were nevertheless joint tort-feasors under the CNA. However, the repealed CNA “define[d] a joint tort-feasor in terms of liability, not negligence.” Id. at 1351. Its replacement, the LRA, on the other hand, speaks in terms of “defendants” instead of “joint tort-feasors” and defines “defendant” in terms of fault, not liability. See Utah Code Ann. § 78-27-37(1). Because the CNA dealt not in terms of “fault” but rather in terms of liability, the Krukiewicz court was able to hold that vicariously liable employers were “joint tort-feasors” under the CNA. For these reasons, the Krukiewicz holding under the CNA is inapplicable.

Nelson also asserts that vicariously liable employers are “defendants” under the LRA because the fault of the servant is imputed to the master. However, this court has established that employers are liable “solely because of the employer’s employment of the employee.” Krukiewicz, 725 P.2d at 1351. While the employer may inherit liability because of its relationship with the employee, the employer does not thereby also inherit the employee’s tortious acts. Prosser and Keeton state that it is liability, not negligence or fault as Justice Howe suggests in his concurring opinion, that is imputed to the employer: “The foundation of the action is still negligence, or other fault, on the part of [the employee or servant]', and all that the law has done is to broaden the liability for that fault by imposing it [i.e., the liability] upon an additional, albeit innocent, defendant.” W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 70, at 499 (5th ed. 1984) (emphasis added).

The LRA’s use of the term “defendant” does not encompass employers who are not at fault but rather are only derivatively liable for their employees’ negligent acts. Therefore, the LRA’s mandate that a release of one “defendant” not discharge any other “defendant” does not apply to the employer who is only vicariously liable.

*517The CNA “provided for joint and several liability, that is, each defendant was liable to the plaintiff for the full amount of the plaintiffs damages.” Stephens v. Henderson, 741 P.2d 952, 953 (Utah 1987). In 1986, the legislature repealed the CNA and replaced it with the LRA, which, as we have already shown, eliminated the harsh results of joint and several liability and instead provided that “no defendant is hable to any person seeking recovery for any amount in excess of the proportion of fault attributable to that defendant.” Utah Code Ann. § 78-27-38. It provided a statutory scheme for apportioning fault among negligent “defendants,” assuring that no “defendant” will be hable for the fault of any other, and thereby eliminating “one of the major evils of joint and several liability.” See Sullivan, 853 P.2d at 880. An employer who is hable only vicariously because of the fault of its employee simply has no fault of its own to apportion under the LRA. For this reason, of course, juries are not asked to determine separately the neghgence of the employee and his or her employer. This apportionment would be impossible because the employer is not negligent.3 Furthermore, a plaintiff would not stand for such a separate determination, even if possible, because it would dilute the neghgence of the employee, the only truly neghgent defendant, to the plaintiffs own detriment. The truth of the matter is that even though the employer is not at fault, it is still liable for the fault of its employee who proximately causes damage to a third party. It is informative that Model Utah Jury Instruction 25.6 (1993) provides:

In order to find that an employer is liable for the act or omission of an employee, you must find that the employee was acting within the scope of the employee’s employment authority at the time of the act or omission.

(Emphasis added.) The employer’s liability, however, is restricted to the fault apportioned to its employee.

The LRA provides, “A release given by a person seeking recovery to one or more defendants does not discharge any other defendant unless the release so provides.” Utah Code Ann. § 78-27-42. The LRA then defines “defendant” as “a person ... who is claimed to be liable because of fault.” Utah Code Ann. § 78-27-37(1). However, an employer who is liable only vicariously has neither negligence nor fault and is liable “solely because of the employer’s employment of the employee.” Krukiewicz at 1351. Thus, an employer liable only vicariously has committed no “actionable breach of legal duty, act or omission” and therefore has no fault and is not a “defendant” for apportionment purposes under the LRA See Utah Code Ann. § 78-27-37(2).

Since neither the JOA nor the LRA applies in this case, the Church’s liability depends solely upon the common law doctrine of respondeat superior — that is, its employment relationship with Crabtree — and not because of any fault of its own. In Holm-stead, this court held that under the common law doctrine of respondeat superior, a covenant not to sue between an employee and an injured third party served to discharge the employer even though the covenant not to sue reserved rights against the vicariously liable employer. 27 Utah 2d at 114, 493 P.2d at 628. The court reasoned that because the employer’s “liability was merely derivative and secondary; the exoneration of [the] servant ... prevented the imputing of his negligence to [the employer].” Id. Inasmuch as the common law doctrine of respondeat superior governs this case, this court should hold that the release between the plaintiff and Crabtree discharges the Church.

STEWART, Associate C.J., does not participate herein.

. Section 15 -4 4 of the Utah Code states in pertinent part, with emphasis added, as follows:

[T]he obligee's release or discharge of one or more of several obligors, or of one or more of joint or of joint and several obligors, shall not . discharge co-obligors against whom the obli-gee in writing and as part of the same transaction as the release or discharge expressly reserves his rights....

Additionally, section 15-4-1 of the Utah Code defines the operative terms of the JOA as follows, with emphasis added:

In this chapter:
(1) “Obligation” includes a liability in tort and contractual obligations;
*516(2) “Obligee” includes a creditor and a person having a right based on a tort;
(3) "Obligor" includes a debtor and a person liable for a tort;
(4) "Several obligors” means obligors severally bound for the same performance.

. It is further instructive to note that even in Holmstead v. Abbott G.M. Diesel, Inc., 27 Utah 2d 109, 493 P.2d 625 (Utah 1972), overruled on other grounds, Krukiewicz v. Draper, 725 P.2d 1349 (Utah 1986), this court refused to apply section 15-4-4 of the JOA to validate language in a release that purported to reserve all rights against an employer liable only vicariously, even though the dissent brought the statute to the court’s attention. 27 Utah 2d at 114, 116, 493 P.2d at 628, 630.

. Of course, where separate negligence is alleged on the part of the employer, such would be determined by the jury. Of concern here is only the circumstance where an employer is derivatively liable under the doctrine of respondeat superior.