Krieser Ex Rel. Krieser v. Hobbs

                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                         ____________________

                              No. 98-60016
                          ____________________

   ROBERT KRIESER, as heir and wrongful death beneficiary of
                Cynthia Renee Krieser (Deceased),

                                                    Plaintiff-Appellee,

                                 versus

                        MILTON D. HOBBS; et al.,

                                                             Defendants,

           BAPTIST MEMORIAL HOSPITAL, NORTH MISSISSIPPI,

                                                   Defendant-Appellant.

_________________________________________________________________

          Appeals from the United States District Court
             for the Northern District of Mississippi
_________________________________________________________________
                         January 28, 1999
Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

     Concerning the wrongful death of the daughter of Robert

Krieser, the jury in this Mississippi diversity action having found

Baptist Memorial Hospital–North Mississippi and a doctor in its

emergency room (the doctor had settled and been dismissed early in

the trial) at fault, and having apportioned the total $200,000 in

damages equally between the doctor and the hospital, chiefly at

issue in Baptist Memorial’s appeal is whether plaintiff’s earlier

$650,000   settlement   with   that   defendant   doctor   should    reduce

Baptist    Memorial’s    liability    for   the   $100,000   in     damages
apportioned to it by the jury.        We AFFIRM, agreeing with the

district court that, under Mississippi’s statute for apportionment

of tortfeasor damages, MISS. CODE ANN. § 85-5-7, where fault has been

apportioned between settling and non-settling defendants, then,

notwithstanding the settlement, the non-settling defendant remains

liable for the amount of damages allocated to him in direct

proportion to his percentage of fault.

     Also at issue is the date from which postjudgment interest

should run.   Concluding, on this record, that it should run from

the July 1995 entry of the original judgment, we REFORM the amended

judgment in that respect.

                                 I.

     In early 1990, Cynthia Renee Krieser, a college student,

became extremely ill and was taken to the emergency room at Baptist

Memorial.   She was treated in the emergency room by Dr. Rogness.

     After several hours of observation, Ms. Krieser was placed

under the care of Dr. Hobbs in another part of the hospital.   After

diagnostic tests revealed an aortic dissection, Ms. Krieser was

flown to a hospital in Memphis, Tennessee, for treatment.

     Ms. Krieser’s condition had become irreparable. She died nine

days later.

     In 1992, Robert Krieser, the father of Ms. Krieser, filed this

diversity action against Baptist Memorial (claiming negligence by

its emergency medical technicians, emergency room nurses, and floor


                                 2
nurses),    and   Drs.   Rogness   and       Hobbs   (claiming   negligence    in

diagnosis and treatment).       The case was tried in early 1995.

      On the third day of the eight-day trial, Krieser settled with

Dr. Rogness for $650,000.          Dr. Rogness was dismissed from the

action that day.

      As part of the jury instructions, the jury was informed about

the   settlement   with   Dr.   Rogness,       but   not   its   size,   and   was

instructed that the settlement should not affect its deliberations.

      Pursuant to special interrogatories, the jury was to determine

whether Dr. Rogness, Dr. Hobbs and/or Baptist Memorial were at

fault; that is, had any been negligent, and if so, did such

negligence proximately contribute to Ms. Krieser’s death.                 For any

defendant found at fault, the jury was to determine the percentage

of the total damages attributable to that fault, after having first

assessed the total damages.

      On 8 March 1995, the jury assessed no fault as to Dr. Hobbs

(the second treating physician at Baptist Memorial).                     It found

fault as to Dr. Rogness (who had settled) and Baptist Memorial;

assessed total damages at $200,000; and apportioned 50% of the

damages to the fault of Dr. Rogness and 50% to the fault of Baptist

Memorial.

      The judgment, prepared pursuant to FED R. CIV. P. 58 by the

district court clerk, was dated 8 March 1995, the same day as the

verdict.    But, that judgment provided erroneously that Dr. Rogness

(who, as noted, had been dismissed during trial as a result of his

                                         3
settlement) was liable for $100,000 in damages, as was Baptist

Memorial.    Pursuant to the district judge’s instructions, the

judgment was not entered until 3 July 1995.          Krieser v. Baptist

Memorial Hospital-North Mississippi, 984 F.Supp. 463, 466 & n.3

(N.D. Miss 1997).

     Post-trial, Baptist Memorial moved to credit Dr. Rogness’

$650,000 settlement against its $100,000 liability, and to remove

the error in the judgment regarding the liability of Dr. Rogness;

Krieser moved for a new trial on damages based on their inadequacy,

and for postjudgment interest from the date of the verdict, rather

than the delayed entry of judgment.         The district court delayed

ruling on these motions until December 1997.

     Baptist Memorial’s motion for a credit as to the settlement

and Krieser’s motion for a new trial on damages were denied.            An

amended   judgment,   entered   on   16   December   1997,   removed   the

reference to Dr. Rogness and provided for postjudgment interest

from the date of the verdict, 8 March 1995.

                                 II.

     Baptist Memorial contends that the $650,000 settlement should

be credited against the $100,000 for which it is liable; and that

postjudgment interest should run only from the entry of the amended

judgment.




                                     4
                                    A.

       In support of the claimed settlement credit, Baptist Memorial

urges that Mississippi’s “one-recovery” or “one-satisfaction” rule

bars a plaintiff from recovering more than the total awarded

damages.     Krieser counters that Mississippi’s 1989 tort reform

statute, MISS. CODE ANN. § 85-5-7, pursuant to which the damages were

apportioned, undermines the application of the one-recovery rule.

       It goes without saying that, for a diversity action, we apply

state substantive law, e.g., Gasperini v. Center for Humanities,

Inc., 518 U.S. 415, 427 (1996); and that we review de novo the

district court’s conclusions of law, such as the effect to be given

a settlement under Mississippi law, e.g., Bertram v. Freeport

McMoran, Inc. 35 F.3d 1008, 1019 (5th Cir. 1994).        But, because the

Mississippi Supreme Court has not addressed the impact of § 85-5-7

on a settlement’s effect on a later judgment, we must make an “Erie

guess” how that court would decide the issue, as per Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938).           E.g., H.E. Butt Grocery Co. v.

National Union Fire Ins. Co., 150 F.3d 526, 530 (5th Cir. 1998);

Farm Credit Bank of Texas v. Guidry, 110 F.3d 1147, 1149 (5th Cir.

1997).

       Moreover, under different tort liability schemes, a settlement

with   one   tortfeasor   affects   a    judgment   against   non-settling

defendants in different ways.       See generally McDermott, Inc. v.

AmClyde, 511 U.S. 202, 208-21 (1994) (summarizing approaches in the

                                    5
context   of    a   decision     on   admiralty    law).     The    two   broad

alternatives are (1) pro-tanto (“to the same extent”) reduction,

under which a settlement reduces the judgment against remaining

defendants     dollar    for    dollar;     and   (2)   proportionate     share

reduction,     under    which   a   settlement    reduces   the    judgment   in

proportion to the settling tortfeasor’s fault.              Id. at 208-09.     A

pro-tanto regime may or may not allow a contribution action by a

non-settling defendant against a settling defendant who paid an

inadequate share.       Id.

     Various other schemes are possible as well.             For example, New

York uses whichever method is greater, see N.Y.G.O.L. § 15-108;

while in Texas, a defendant may elect between a pro-tanto rule and

a complicated schedule, see TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.012,

33.014.   It is also possible to reduce a judgment in proportion to

the number of settling tortfeasors, rather than by their fault;

such a scheme is often called “pro rata” reduction, though it is

more informatively termed “per capita”. See McDermott, 511 U.S. at

210 & n.9; Dobson v. Camden, 705 F.2d 759, 762 (5th Cir. 1983).

     The choice among methods represents a policy choice for the

State of Mississippi.         The only legislation touching directly upon

the effect of a settlement, MISS. CODE ANN. § 85-5-1, applies to

settlements in cases of “joint or joint and several indebtedness”.

While some courts refer to this section in discussing tortfeasors

more generally, rather than debtors per se, e.g., Smith v. Falke,

                                        6
474 So. 2d 1044, 1045 (Miss. 1985), this much is clear:    “joint or

joint and several indebtedness” does not include the “several only”

liability contemplated in § 85-5-7,     Mississippi’s earlier-cited

tort reform statute.    And, as explained below, § 85-5-7 applies to

the question at hand.

     Beyond the legislature, of course, Mississippi courts have

long assumed a gap-filling role in specifying the effects of

settlements.   Almost a century ago, the traditional pro-tanto rule

was stated in Bailey v. Delta Electric Light, Power, & Mfg. Co., 38

So. 354, 355 (Miss. 1905):

          It is a universally established principle of
          law that joint tort feasors are both jointly
          and severally liable, and may be proceeded
          against    either    singly    or    jointly,
          individually, or all combined.    It is also
          well settled that, where a party has once
          received full satisfaction and compensation
          for an injury inflicted, no matter from which
          one of several tort feasors, all are thereby
          released.

                ...

          ... [A non-settling defendant] would have the
          right to claim, should its liability be
          established, ... to have credited the amount
          received by the [plaintiff] from the [settling
          tortfeasor] upon the amount of damages which
          the [plaintiff] may have sustained.

     Bailey’s logic flows from the premise with which it begins:

joint-and-several liability.      The rule under joint-and-several

liability – and its rootedness in such regimes of liability – are

illustrated well by Medley v. Webb, 288 So. 2d 846 (Miss. 1974).


                                  7
There, after a verdict, the plaintiff settled with one defendant,

who paid all but $2.00 of the judgment, while apparently agreeing

that the plaintiff could seek recovery in another action against

the other tortfeasor:

          The issue here is whether or not a judgment
          against one of the joint tort-feasors for all
          the damages found to be due the plaintiff by
          the jury is fully satisfied when the amount of
          the judgment is paid, although the party
          paying the judgment agrees that the plaintiff
          may sue another joint tort-feasor.

               ...

          ... The plaintiff has the right to sue either
          one of the joint tort-feasors for all the
          damages accruing to the plaintiff, inasmuch as
          a joint tort-feasor is liable for all the
          damages due to the plaintiff.          If the
          plaintiff elects to sue one joint tort-feasor
          for all the damages alleged to be due to him,
          and the jury determines the amount of damages
          due to the plaintiff as a result of the
          accident, the amount due then becomes fixed.

288 So. 2d at 848-49 (emphasis added).

     When there is more than one tortfeasor, pro-tanto reduction of

a verdict, when there has been a settlement, is a response to the

phenomenon of the defendants’ intersecting obligations.    In other

words, a plaintiff is entitled to recover from one, or the other,

or a mixture between them.    In its desire to ensure, to the extent

it can, that a plaintiff be compensated, the joint-and-several

regime affords a plaintiff overlapping remedies. These overlapping

remedies, however, must not become multiple remedies, and so pro-

tanto reduction is applied.

                                  8
     Mississippi has joined many other States in modifying joint-

and-several liability; it did so in 1989.   1989 Miss. Laws ch. 311,

MISS. CODE ANN. § 85-5-7; see Kathleen M. O'Connor and Gregory P.

Sreenan, Apportionment of Damages: Evolution of a Fault-Based

System of Liability for Negligence, 61 J. AIR LAW & COMM. 365, 374-81

(1996)(documenting trend).   Indeed, what Bailey understood in 1905

to be a “universally established principle” is fast becoming a

minority view. Almost 40 States have now limited joint-and-several

liability in some way.    See Fernanders v. Marks Const. of South

Carolina, Inc., 499 S.E.2d 509, 512 & n.9 (S.C.App. 1998) (listing

37 statutes).

     Section 85-5-7 provides, with several exceptions (tortfeasors

acting in concert, employers and employees, and when necessary in

order for the plaintiff to recover at least 50% of his total

assessed damages), for tort liability that is several, rather than

joint-and-several. Therefore, generally, a defendant is liable for

damages only in proportion to his own percentage of fault.       The

statute reads in full:

               (1) As used in this section “fault”
          means an act or omission of a person which is
          a proximate cause of injury or death to
          another   person   or   persons,  damages   to
          property, tangible or intangible, or economic
          injury,   including   but    not  limited   to
          negligence, malpractice, strict liability,
          absolute liability or failure to warn.
          “Fault” shall not include any tort which
          results from an act or omission committed with
          a specific wrongful intent.

                                 9
     (2) Except as may be otherwise provided
in subsection (6) of this section, in any
civil action based on fault, the liability for
damages caused by two (2) or more persons
shall be joint and several only to the extent
necessary for the person suffering injury,
death or loss to recover fifty percent (50%)
of his recoverable damages.

     (3) Except as otherwise provided in
subsections (2) and (6) of this section, in
any civil action based on fault, the liability
for damages caused by two (2) or more persons
shall be several only, and not joint and
several and a joint tort-feasor shall be
liable only for the amount of damages
allocated to him in direct proportion to his
percentage of fault. In assessing percentages
of fault an employer and the employer’s
employee or a principal and the principal’s
agent shall be considered as one (1) defendant
when the liability of such employer or
principal has been caused by the wrongful or
negligent act or omission of the employee or
agent.

     (4) Any defendant held jointly liable
under this section shall have a right of
contribution   against   fellow   joint  tort-
feasors.     A    defendant   shall   be  held
responsible for contribution to other joint
tort-feasors only for the percentage of fault
assessed to such defendant.

     (5) Nothing    in  this   section   shall
eliminate   or  diminish   any   defenses   or
immunities which currently exist, except as
expressly noted herein.

     (6) Joint and several liability shall be
imposed   on    all   who   consciously    and
deliberately pursue a common plan or design to
commit a tortious act, or actively take part
in it. Any person held jointly and severally
liable under this section shall have a right
of contribution from his fellow defendants
acting in concert.


                     10
                 (7) In actions involving joint tort-
            feasors, the trier of fact shall determine the
            percentage of fault for each party alleged to
            be at fault.

                 (8) Nothing in this section shall be
            construed to create a cause of action.
            Nothing in this section shall be construed, in
            any way, to alter the immunity of any person.

MISS. CODE ANN. § 85-5-7.

     As our court noted recently, Mississippi courts have not had

much occasion to apply the statute.          See Whitehead v. Food Max of

Mississippi, Inc., ___ F.3d ___, 1998 WL 876903, *15-*16 (5th Cir.

1998)    (listing   references   to    the   section).    None   of   these

referenced cases concerns the effect of a settlement on non-

settlors’ liability for damages.             Very recently, however, the

Mississippi Supreme Court held that allocation of fault under the

section to a settling tortfeasor is proper, construing “party” in

§ 85-5-7(7) (allowing a factfinder’s allocation of fault among

“parties”) to “refer[] to any participant to an occurrence which

gives rise to a lawsuit, and not merely the parties to a particular

lawsuit or trial”.    In re Estate of Hunter v. General Motors Corp.,

1999 WL 12908, *14 (Miss. 1999).           The court explicitly reserved

judgment on whether the pro-tanto rule survived the enactment of §

85-5-7.    See id., *22 & n.8.

     This statute was the basis for the apportionment in district

court.    In its brief on appeal, Baptist Memorial did not contest

the jury being permitted to find fault as to the settling/dismissed


                                      11
defendant, and to apportion damages to him.1                        On appeal, however,

there is some controversy regarding the nature of the liability.

We note parenthetically, although it only concerns how the parties

have phrased their positions, that § 85-5-7 distinguishes “joint

tortfeasors” from those tortfeasors subject to “joint liability”.

As   noted,     §    85-5-7(3)     provides       that    a    “joint      tortfeasor”        is

ordinarily not subject to joint liability. Baptist Memorial is not

a    “several       tortfeasor”,       as   Krieser      terms      it;   it   is   a    joint

tortfeasor subject only to several liability.

       In that Krieser’s complaint claimed that Baptist Memorial and

Dr. Rogness (who settled during trial) were jointly and severally

liable, Baptist Memorial insists that Krieser may not take an

inconsistent         position     on   appeal.        However,       the    claim       in   the

complaint was based, at least in part, on inadequate development of

the facts.      The complaint alleged that Baptist Memorial employed

Dr. Rogness;         this   was    denied     by   both.       In    discovery,     Baptist

Memorial claimed that Dr. Rogness was an independent contractor.

This was apparently accepted by Krieser; the pretrial order does

not list Dr. Rogness’ employment among the issues for trial.

Consistent with this, the jury was permitted to apportion separate

fault to the doctor and to the hospital.                      Had they instead been an



       1
      As noted supra, the Mississippi Supreme Court in Estate of
Hunter very recently approved apportionment of fault to settling
tortfeasors.


                                             12
employer and employee, the jury would have considered them as one

defendant and assessed only one percentage of fault, pursuant to

the second sentence of § 85-5-7(3) (“In assessing percentages of

fault an employer and the employer’s employee or a principal and

the principal’s agent shall be considered as one (1) defendant when

the liability of such employer or principal has been caused by the

wrongful or negligent act or omission of the employee or agent.”).

      Additionally,     we    note    that,    in     district   court,    Baptist

Memorial urged application of the apportionment statute. While

Baptist Memorial does not explicitly contend that it faces joint-

and-several liability, such a position would be far more blatantly

in conflict with its own contentions in district court than is

Krieser’s here, given the need for factual development at the time

of   his   complaint.      In   any   event,     it    is   clear   that   Baptist

Memorial’s liability is, as § 85-5-7 plainly requires, several

only, and not joint-and-several.

      The parties conceded at oral argument on appeal that there

were no decisions on point by Mississippi’s Supreme Court.                     That

appears to still be the case.                 While Mississippi courts have

addressed the effect of partial settlements three times in recent

years, none of these cases has applied § 85-5-7.                    See Turner v.

Pickens, 711 So. 2d 891 (Miss. 1998) (after remand, a plaintiff’s

acceptance    from   one     defendant   of     a     remittitur    releases   all

defendants); Robles By and Through Robles v. Gollott and Sons


                                        13
Transfer and Storage, Inc., 697 So. 2d 383 (Miss. 1997) (informing

a jury of a prior lawsuit and settlement is not error);              McBride v.

Chevron   U.S.A.,   673    So.   2d    372      (Miss.    1996)    (plaintiff’s

comparative   negligence    applied        to   damages    after    subtracting

settlement, not before).

     Because Turner and McBride involved injuries sustained before

§ 85-5-7's effective date, 1 July 1989, the section did not apply.

See Turner, 711 So. 2d at 892 (injury in 1985); McBride, 673 So. 2d

at 374 (injury in 1987); 1989 Miss. Laws ch. 311 § 7 (section

“shall apply only to causes of action accruing on or after July 1,

1989”).   And, as noted supra, McBride specifically limited its

holding “to cases in which, as here, the trial court instructed the

jury to consider only the relative culpabilities of the plaintiff

and the non-settling defendant(s) in apportioning fault under

comparative negligence principles”.             673 So. 2d at 381 (emphasis

added).

     Although the injury in Robles took place in August 1989, after

the effective date of § 85-5-7, Robles quotes language from pre- §

85-5-7 Whittley v. City of Meridian, 530 So. 2d 1341, 1346 (Miss.

1988), stating that a jury should be told of a settlement’s

existence but not its amount, and “the trial judge would reduce the

amount awarded by the jury by the amount of the settlement by the

other defendant or defendants”. However, no apportionment of fault

took place at the trial court in Robles, because the jury found no

                                      14
liability.    Whittley was quoted at length, see 697 So. 2d at 384-

85, but only to explain the traditional rule that juries are to be

informed of settlements.

      Finally, our comment on Mississippi law in Hunnicutt v.

Wright, 986 F.2d 119, 125 (5th Cir. 1993), that, “where a party

settles with one defendant, any remaining defendant receives credit

for the settlement received from the released defendant”, likewise

considered only pre- § 85-5-7 law.         While the fact was not stated

in the opinion, the injury in Hunnicutt took place in 1988, prior

to § 85-5-7’s effective date.

      As discussed above, Mississippi’s rule of pro-tanto reduction

is premised and rooted in joint-and-several liability.             Moreover,

§ 85-5-7 itself operates to reduce the total damages in proportion

to the fault of a settling tortfeasor/defendant, just as it reduces

the   total   damages   in    proportion   to   the   fault   of   any   other

tortfeasor/defendant.        The statute therefore establishes the chief

alternative to pro-tanto reduction, to which Baptist Memorial does

not object.    In effect, by seeking a pro-tanto reduction, as well

as application of the apportionment statute, Baptist Memorial

advocates, not a pure pro-tanto reduction of damages for previous

settlements, but a rule reducing its liability for damages twice:

first, by the settling defendant’s share of fault; and second, by

the amount of that settlement, if greater.



                                     15
     Set-offs for settlement and the “one-satisfaction” rule exist

to prevent the plaintiff from recovering twice from the same

assessment of liability.       But, where liability is not joint-and-

several, and each defendant instead bears liability for damages

only proportionate to his own fault, there is no assessment of

liability for damages common to the settling and non-settling

defendants.    Accordingly, the settlement has an entirely separate

basis from the apportioned damages, and the one-recovery rule does

not apply.    The “one satisfaction” rule applies to situations like

the one in Turner, in which liability from two parties is rooted in

a single source (there, the remittitur). Where, as here, liability

or payment is separately rooted, the rule is inapposite.

     We think it is clear that the Mississippi Supreme Court, if

faced with this question, would follow the large number of other

courts who have understood legislative limitation of joint-and-

several liability to render incompatible a pro-tanto credit for

non-settling    tortfeasors.       Courts     in   at     least     16   other

States—Arizona,    California,    Colorado,    Florida,       Indiana,   Iowa,

Kansas, Kentucky, New Jersey, New Mexico, Pennsylvania, Tennessee,

Texas, Washington, West Virginia, and Wyoming—have so overridden or

limited   pro-tanto    regimes,   many   of   which     had   had   statutory

standing.

     We find persuasive these cases’ number and, most especially,

their reasoning.      For example, Gemstar Ltd. v. Ernst & Young, 917


                                    16
P.2d 222, 237 (Ariz. 1996) (citations and internal quotations

omitted) held in pertinent part:

           [R]educing plaintiffs' award by the amount of
           the [previous] settlement would undermine the
           policy justifications underlying several only
           liability. Under several only liability, the
           defendant is liable only for the amount of the
           plaintiff's damages that is proportional to
           the defendant's percentage of fault. [Arizona
           Revised   Statutes]   §    12-2506(A).   Thus,
           offsetting a plaintiff's damages by the amount
           of a non-party's settlement is unnecessary
           because the defendant pays only his share of
           the damages. A contrary rule would (1) give
           the benefit of an advantageous settlement to
           the non-settling tortfeasor, rather than to
           the plaintiff who negotiated the settlement,
           (2) discourage some defendants from settling
           in anticipation of acquiring the benefits of
           the settlements of their co-tortfeasors, and
           (3) neglect to recognize the fact that
           settlement dollars are not synonymous with
           damages but merely a contractual estimate of
           the settling tortfeasor's liability.

As another example, the pertinent holding in Waite v. Morisette,

843 P.2d 1121, 1124 (Wash.App.), amended, 851 P.2d 1241 (1993),

follows:

           Where proportionate liability applies, as
           here, a defendant can never be liable for more
           than his percentage share, because recovery is
           limited to his proportionate share of the
           total damages.     The reasons for allowing
           credits where the liability is joint and
           several are not present where liability is
           proportionate.

     See also Hoch v. Allied-Signal, Inc., 29 Cal.Rptr.2d 615, 621-

26 (Cal.App. 1994); Smith v. Zufelt, 880 P.2d 1178, 1183-88 (Colo.

1994); Kussman v. City and County of Denver, 706 P.2d 776, 777-82


                                17
(Colo. 1985) (later overridden by statute); Wells v. Tallahassee

Memorial Regional Medical Center, Inc., 659 So. 2d 249, 250-52

(Fla. 1995); Barber v. Cox Communication, Inc., 629 N.E.2d 1253,

1258 (Ind.App. 1994); Thomas v. Solberg, 442 N.W.2d 73, 73-78 (Iowa

1989); Glenn v. Fleming, 732 P.2d 750, 755 (Kan. 1987) (and cf.

York v. InTrust Bank, N.A., 962 P.2d 405, 431-32 (Kan. 1998),

reaffirming pro-tanto credit where joint-and-several liability

remains); D. D. Williamson & Co., Inc. v. Allied Chemical Corp.,

569 S.W.2d 672, 673-74 (Ky. 1978); Rogers v. Spady, 371 A.2d 285,

287-88 (N.J.Super.A.D. 1977) (later overridden by statute); Johnson

v.   American     Homestead    Mortg.     Corp.,     703       A.2d   984,    987-88

(N.J.Super.A.D. 1997); Wilson v. Galt, 668 P.2d 1104, 1107-09

(N.M.App. 1983); Charles v. Giant Eagle Markets, 522 A.2d 1, 2-5

(Pa. 1987); Varner v. Perryman, 969 S.W.2d 410, 413-14 (Tenn.

1997); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 431 (Tex.

1984) (later overridden by statute); Johnson by Johnson v. General

Motors   Corp.,    438   S.E.2d     28,   33     (W.Va.    1993);      Haderlie    v.

Sondgeroth, 866 P.2d 703, 708-712 (Wyo. 1993).                        Moreover, in

construing   §    85-5-7,     the   Mississippi     Supreme       Court      recently

followed   the    lead   of    courts     from    Florida      and    Tennessee    in

construing      those    states’    modification          of    joint-and-several

liability.   See Estate of Hunter, 1999 WL 12908, *12 (citing Fabre




                                        18
v. Marin, 623 So. 2d 1182 (Fla. 1993), and Ridings v. Ralph M.

Parsons Co., 914 S.W.2d 79 (Tenn. 1996)).

     The only States we have found maintaining a pro-tanto credit

to non-settling defendants where joint-and-several liability has

been limited are Idaho and Maine.         Curtis v. Canyon Highway Dist.

No. 4, 831 P.2d 541, 545-47 (Idaho 1992), overruled on other

grounds, Lawton v. City of Pocatello, 886 P.2d 330 (Idaho 1994);

Hoitt v. Hall, 661 A.2d 669, 673 (Me. 1995); Hewitt v. Bahmueller,

584 A.2d 664, 666 (Me. 1991).

     The   case      from   Idaho,   Curtis,      held     that   legislative

modification   of    joint-and-several      liability    did   not   impliedly

repeal its tortfeasor release statute.          However, Curtis confronted

a specific statute mandating a pro-tanto credit, as well as a rule

limiting   implied    repeal   unless     two   statutes    are   “manifestly

inconsistent with and repugnant to each other”, 831 P.2d at 546.

By an amendment that predated Curtis, but did not apply to it, the

Idaho   Legislature     corrected    this       error,   acknowledging    the

incompatibility of pro-tanto and several-only regimes:

           Under   the  present   system,   in  multiple
           defendant cases, each defendant only pays its
           pro rata share of the total damages and,
           therefore, should not be entitled to any
           credit for the pro rata share paid by another
           defendant in settlement.        The proposed
           amendments ... make the section consistent
           with the prior elimination of joint and
           several liability.



                                     19
Tuttle v. Wayment Farms, Inc., 952 P.2d 1241, 1244 (Idaho 1998)

(quoting “[t]he statement of purpose for the 1991 amendment of

[Idaho Code] § 6-805”).

      The cases from Maine, Hewitt and Hoitt, appear to be the

result of idiosyncratic drafting and an explicit statute mandating

the pro-tanto rule; they have been subject to extensive criticism.

See   Arlyn    H.   Weeks,   The   Unsettling   Effect   of   Maine   Law   on

Settlement in Cases Involving Multiple Tortfeasors, 48 ME. L. REV.

77 (1996).

      In sum, the majority rule is decidedly that a pro-tanto/one-

satisfaction rule has no application to liability no longer both

joint and several.       See Wells, 659 So. 2d at 25 (“clearly the

majority rule”).2


2
     Indeed, regarding the pro-tanto approach, Baptist Memorial
highlights 22 AM. JUR. 2d Damages § 559:

              The consideration received by one injured as a
              consequence of a tort committed by two or more
              tortfeasors operates to reduce, pro tanto (to
              the same extent), the amount of damages he is
              entitled   to  recover   against   any   other
              tortfeasor responsible for his injuries.

However, § 561 in that same source advocates departure from that
rule in the light of an apportionment statute:

              The rule that recovery from nonsettling
              tortfeasors is reduced pro tanto by the amount
              received in settlement from another tortfeasor
              may be affected by a comparative negligence
              statute that apportions negligence to each
              party, including each of the defendants. If
              the statute provides that each tortfeasor is

                                      20
     Baptist    Memorial’s   characterization   of   Krieser   having    a

“recovery of $750,000 on a $200,000 verdict” is a red herring.

Obviously, Krieser will not recover $750,000 on the verdict (now

judgment) itself; rather, he obtained $650,000 from the settlement

and was awarded $100,000 by the verdict/judgment.          Each amount

flows from a distinct source and is footed on a distinct basis.         It

is not surprising that different dispute-resolution methods produce

different, or “inconsistent”, results; nor should we force a

harmonization between them.

     Krieser bore the risks both of an inadequate settlement with

respect to Dr. Rogness and of an inadequate verdict with respect to

Baptist Memorial.     For example, assume that, after Krieser had

settled for $650,000 with the doctor, the jury had returned a

verdict for $1,000,000, but had apportioned 90%, instead of 50%,

of the fault ($900,000) to the doctor and only 10% ($100,000) to

the hospital.   Krieser would have recovered only $750,000, instead

of the $1,000,000 awarded by the jury.    This is because, instead of

the doctor being liable for $900,000 pursuant to the verdict,

Krieser had accepted a settlement from him for $250,000 less.           As

another example, there appears to have been great uncertainty as to


          responsible for the percentage of negligence
          attributed to him, the judgment against each
          defendant is not reduced by the amount of a
          settlement paid by other tortfeasors.

(Emphasis added.)


                                  21
the probable damages arising out of this tragic death, due to the

underlying physical problem, cause, or defect.     In this regard,

although facially $200,000 might seem inadequate in a wrongful

death case, especially as to Ms. Krieser, the district court denied

Krieser’s motion for a new trial on damages.    As a final example,

Krieser settled early during trial, when, presumably, the result

was far less certain.   In sum, Krieser is entitled to the fruits of

each method of dispute-resolution.

     On this question of claimed overcompensation, we find quite

persuasive the comments of the Texas Supreme Court in Duncan, 665

S.W.2d at 430-431:

          Plaintiffs bear the risk of poor settlements;
          logic and equity dictate that the benefit of
          good settlements should also be theirs.

               ...

          ... [A]ny enrichment of plaintiffs under the
          new system of comparative causation is not
          unjust, for the simple reason that no one is
          harmed.     The settling defendant cannot
          complain, because he agreed to pay. The non-
          settling defendant has no right to complain,
          because he was not a party to and is not
          affected by the settlement.

See also McDermott, 511 U.S. at 219-20:

          Because settlement amounts are based on rough
          estimates of liability, anticipated savings in
          litigation costs, and a host of other factors,
          they will rarely match exactly the amounts a
          trier of fact would have set. It seems to us
          that a plaintiff’s good fortune in striking a
          favorable bargain with one defendant gives
          other defendants no claim to pay less than
          their proportionate share of the total loss.

                                 22
     In holding, pursuant to our “Erie-guess”, that, pursuant to §

85-5-7,   the   amount   of   damages    apportioned   to   a   non-settling

defendant is not reduced by a settlement by another defendant, we

find most persuasive, as did the district court, the following

language from the McBride decision by the Mississippi Supreme

Court, even though it concerned a case to which § 85-5-7 was not

applicable because the incident occurred before its effective date:

           The rising number of cases involving multiple
           defendants necessitates this Court to choose a
           method of verdict reduction, given the lack of
           statutory mandates. It is an unavoidable fact
           that both the fault-first and settlement-first
           methods are imperfect, and each method results
           in either the plaintiff (pursuant to the
           settlement-first method) or the non-settling
           defendant (pursuant to the fault-first method)
           receiving a windfall. It thus falls to this
           Court to decide which party should bear the
           burden of the imperfections of each method and
           which party should enjoy the benefits thereof.
           It is the view of this Court that a defendant
           whose negligence has been found to have
           proximately caused injury to another person
           should not be allowed to escape liability for
           his negligence by the fortuity that a co-
           defendant   has   settled   prior  to   trial.
           Accordingly, this Court adopts the settlement-
           first method, given that said method, despite
           its imperfections, yields the fairer results
           of the two methods.

673 So. 2d at 380 (emphasis added).

                                    B.

     Concerning Baptist Memorial’s claim that postjudgment interest

should not begin running until entry of the amended judgment, the

controlling federal statute provides:         “Interest shall be allowed


                                    23
on any money judgment in a civil case recovered in a district

court.... Such interest shall be calculated from the date of the

entry of the judgment”.         28 U.S.C. § 1961 (emphasis added).          Of

course, § 1961 governs all postjudgment interest on money judgments

in federal district court.        E.g., Mitchell Energy Corp. v. Samson

Resources Co., 80 F.3d 976, 987 (5th Cir. 1996).

     The jury reached its verdict on 8 March 1995.              That same day,

pursuant to FED. R. CIV. P. 58, the district court clerk prepared the

judgment, repeating the jury’s finding and referring erroneously to

liability by both Baptist Memorial and the settling/dismissed

defendant, Dr. Rogness.          That judgment provided that Krieser

recover   $200,000    from      both    defendants,     “with     50   percent

attributable to each defendant”.            This judgment was not entered,

however, until 3 July 1995.

     Then, after the district court considered the motions to

credit the settlement, for a new trial on damages, to correct the

wording of the judgment, and to have postjudgment interest run from

the date of the verdict, an amended judgment, reflecting Baptist

Memorial’s $100,000 liability, was entered on 16 December 1997.

And, as   ordered    by   the   district     judge,   the   amended    judgment

provided for postjudgment interest from 8 March 1995, the date of

the verdict (and of the original judgment, as so noted in the

amended judgment).




                                       24
     In its December 1997 opinion on these motions, the court

stated why the original judgment, although dated 8 March 1995, had

not been entered until 3 July 1995, almost four months later.               It

stated   that   the   delayed    entry    had    been   “[p]er   the   court’s

instructions”; and that, apparently concerning both the original

and amended judgments, Krieser “was in no way responsible for the

court’s delay in entering judgment”.            984 F.Supp. at 466 & n.3.

     Baptist Memorial urges that postjudgment interest not run

until the entry of the amended judgment on 16 December 1997, almost

three years after trial was completed on 8 March 1995.                      As

hereinafter explained, although we agree that the language of §

1961 permits such interest to run only from entry of judgment, the

proper such entry was that of 3 July 1995, at which time Baptist

Memorial’s liability for $100,000 was fully ascertained.

     In ordering postjudgment interest from the date of the verdict

(which was also the date of the original judgment, 8 March 1995),

although   citing     §   1961    and     noting     that   “[u]nder     usual

circumstances, [such] interest runs from the date of entry of

judgment”, the district court reasoned understandably that Krieser

should not be penalized for a delay which he did not cause, citing

Louisiana & Arkansas Railway Co. v. Pratt, 142 F.2d 847, 849 (5th

Cir. 1944).     Moreover, FED. R. CIV. P. 58 requires that, upon a

verdict, “the clerk, unless the court otherwise orders, shall

forthwith prepare, sign, and enter the judgment without awaiting


                                     25
any direction by the court”.               (Emphasis added.)     (As noted,

concerning the original judgment, it appears that Rule 58’s “unless

the court otherwise orders” exception came into play; the court

instructed the clerk to delay entry of that judgment.)                      This

statutory duty of the clerk, combined with the powerful intuition

that a plaintiff should not be deprived of his judgment earning

interest during a delay which he did not cause, lend considerable

force to the district court’s decision to make an exception to the

rule under § 1961 and to instead allow postjudgment interest from

the date of the verdict, 8 March 1995.

     However, the decision to allow postjudgment interest from that

date, which equates with the date of, but not entry of, the

original judgment, parallels a position specifically repudiated in

Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990).

Kaiser Aluminum rejected reliance on a “defendant’s fault in

causing the delay in entry of judgment” as a basis for computing

postjudgment   interest   from   an    earlier    date,   494   U.S.   at   834

(quoting Note, Interest on Judgments in the Federal Courts, 64 YALE

L.J. 1019, 1039 (1955)).    We note as well that Pratt was featured

prominently in the article describing the approach Kaiser rejected,

see 64 YALE L.J. at 1033-37, and centrally guided Turner v. Japan

Lines, Ltd., 702 F.2d 752, 755-57 (9th Cir. 1983), which Kaiser

Aluminum explicitly overruled, 494 U.S. at 834.             Other than the

district court here, Pratt has not been cited favorably by any

                                      26
federal court since Kaiser Aluminum.            See also Boyd v. Bulala, 751

F.Supp. 576, 579 (W.D.Va. 1990) (stating that Kaiser Aluminum

rejected Pratt).

       The four-month delay in entry of the original judgment was due

to the district court’s instructions.                And, the much greater 30-

month delay in entry of the amended judgment was due, apparently,

to that court hoping the Mississippi Supreme Court would render a

decision on point on the settlement credit issue.                  In any event,

none   of   the   delay   can     be    attributed    squarely    either   to   the

defendant, Baptist Memorial, or to Krieser.                 Accordingly, it may

well be that the district court’s cite to Pratt was simply in

reference to its language that the postjudgment interest was to run

“from the date judgment should have been entered as required by ...

Rule 58”.     Pratt, 142 F.2d at 849.          Notwithstanding the district

court’s good, admirable, and equitable intentions, Kaiser Aluminum

dictates otherwise.        The statute is clear; postjudgment interest

can run only from entry of judgment.

       On   the   other   hand,    we    disagree    with   Baptist   Memorial’s

contention that the entry of the amended judgment is the relevant

entry. Needless to say, “[t]he purpose of postjudgment interest is

to compensate the successful plaintiff for being deprived of

compensation for the loss from the time between the ascertainment

of the damage and the payment by the defendant”.                 Kaiser Aluminum,

494 U.S. at 835-36 (1990) (internal quotation marks and citation

                                          27
omitted; emphasis added). The ascertainment of damage is reflected

in a judgment.       FED. R. CIV. P. 58.

      Along this line, § 1961 is silent as to which judgment, if

there are amendments, triggers the interest.                  For this case, upon

the   entry   of    the    original    judgment,       the    damages   were    fully

ascertained.       That amount did not change upon entry of the amended

judgment.      The        latter    only     deleted    the    reference   to    the

settling/dismissed defendant.               Accordingly, the first entry of

judgment, 3 July 1995, is the appropriate date from which such

interest runs.       Accord Greenway v. Buffalo Hilton Hotel, 143 F.3d

47, 55 (2nd Cir. 1998).            We therefore REFORM the judgment in this

respect. See United States for use of Wallace v. Flintco Inc., 143

F.3d 955, 973 (5th Cir. 1998).

                                           III.

      For the foregoing reasons, that part of the judgment imposing

liability for $100,000 against Baptist Memorial is AFFIRMED; that

part regarding postjudgment interest is REFORMED to provide for

such interest from 3 July 1995.

                                      AFFIRMED IN PART; REFORMED IN PART




                                            28