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