No. 14676
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
CONSOLIDATED FREIGHTWAYS
CORPORATION OF DELAWARE,
a Delaware corporation,
Petitioner,
JUNE OSIER and MARGARET COLLINS,
Respondents.
On Certification from: U.S. District Court of Montana, Missoula,
Division
Hon. Russell E. Smith, U.S. District Judge
presiding.
Counsel of Record:
For Petitioner:
Corette, Smith, Dean, Pohlman and Allen, Butte, Montana
R. D. Corette, Jr. argued, Butte, Montana
For Respondents:
Poore, Roth, Robischon & Robinson, Butte, Montana
David J. Wing argued, Butte, Montana
Submitted: June 7, 1979
Decided : X T 12 197Q
F
Filed: ml f 2 Ilji"
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The Hon. Russell E. Smith, a senior United States District
Judge for the District of Montana, has certified to us a question
of law in which it appears there are substantial grounds for
difference of opinion, the adjudication of which by this Court
would materially advance a decision in federal litigation. The
question is certified as follows:
"As a matter of substantive Montana law, does
a tort-feasor have a cause of action for
contribution or indemnity against any joint
tort-feasor not joined by the plaintiff as a
party defendant?"
That question, stated tersely according to the manner of
Judge Smith, presents us with a tangle of legal problems in
the proportion of a Gordian knot. It would be nice if we
could, as Alexander the Great, slice to the heart of the matter
with a monosyllabic sword to answer "yes" or "no". Instead we
must answer "yes and no" and detail our explanations hereunder.
The problem certified arises out of a collision on December
8, 1977, near Deer Lodge, Montana, between a Consolidated
Freightways tractor-double trailer unit and a Plymouth automobile.
June Osier, a passenger in the Plymouth, brought action against
Consolidated Freightways in the federal court for damages claimed
to have resulted from the collision. Consolidated sought to
bring the driver of the Plymouth, Margaret Collins, into the
action as a third-party defendant on a claim of indemnity if
Consolidated were found to be liable to June Osier. On motion,
the federal district judge dismissed the third-party complaint
for indemnity. Consolidated filed an amended third-party
complaint against Margaret Collins, praying that Margaret
Collins be required to contribute to the damages established
by June Osier in conformance with section 27-1-703, MCA.
Before deciding the motion to dismiss the amended third-
party complaint, Judge Smith certified the legal questions
to us for determination as to the applicable Montana law.
As to tortfeasors not joined by the plaintiff as a
party defendant, the problem certified to us states two
phases: (1) whether a sued tortfeasor has a cause for
action for contribution against a nonjoined tortfeasor, and
( 2 ) whether a sued tortfeasor has a cause of action for
indemnity against a nonjoined tortfeasor.
It was always assumed as a part of the established law
in Montana that there is no right to contribution among
joint tortfeasors. PanQsuk v. Seaton (U.S.D.C. Mnnt. 1965),
277 F.Supp. 979; Variety Incorporated v. Hustad Corporation
(1965), 145 Mont. 358, 368, 400 P.2d 408, 414. This assumption
was shaken by the passage of section 27-1-702, MCA, the
comparative negligence statute in 1975, and its companion
section 27-1-703, MCA, the statute providing for contribution
between multiple defendants jointly and severally liable to
a plaintiff.
Section 27-1-703, MCA, makes it necessary to subdivide
the contribution phase of the problem certified to us into
two subissues: (1) Did the passage of section 27-1-703,
MCA, strip from the body of established law in Montana the
rule against contribution among all joint tortfeasors, and
(2) if it did not, should Montana now move by judicial fiat
to abolish such rule.
As the Hon. William J. Jameson, United States District
Judge,pointed out in Panqsuk, supra, Montana may not have
expressly adopted the rule against contribution among joint
tortfeasors in any particular case but the rule was certainly
recognized in statements made by the Montana court. For
example, Variety, supra. Recognition of the rule however,
was inherent in Montana's emphatic declarations that joint
tortfeasors were jointly and severally liable to the plaintiff.
In Jones v. Northwestern Auto Supply Co. (1932), 93 Mont.
224, 231, 18 P.2d 305, 307, we stated "[tlhe rule was well
settled that, 'if the concurrent negligence of two or more
persons causes an injury to a third person, they are jointly
and severally liable, and the injured person may sue them
jointly or severally, and recover against one or all.'"
See Black v. Martin (1930), 88 Mont. 256, 292 P. 577, 580.
For that reason, if the injured party accepted satisfaction
in full and released one joint tortfeasor, the release
operated as satisfaction for the injuries as to all joint
tortfeasors. Black, supra.
In Auto C1. Ins. Co. v. Toyota Mot. Sales, USA, Inc.
(1975), 166 Mont. 221, 225, 531 P.2d 1337, 1339, this Court
accepted the statement by Judge Jameson in Panusuk that a
joint tortfeasor is not entitled either to contribution or
indemnity from another tortfeasor. Therefore, prior to
1977, it was safe to assume that Montana, though not expressly
declaring so, was committed to the principle that one of
several wrongdoers could not recover against another wrongdoer
for contribution, even though he may have been compelled to
pay the whole judgment to the injured plaintiff.
After the comparative negligence statute was adopted in
1975, the Montana Legislature considered and adopted section
27-1-703, MCA, respecting contribution, which provides as
follows:
"Multiple defendants jointly and severally liable--
riaht - contribution. (1) Whenever the comparative
- - of
2---
neqliqence of t.he parties in any action is an
- -
issue and recovery is allowed against more than
one party, each such party is jointly and severally
liable for the amount awarded to the claimant
but has the right of contribution from any other
party against whom recovery is allowed. Contri-
bution shall be proportional to the negligence
of the parties against whom recovery is allowed.
"(2) If for any reason all or part of the con-
tribution from a party liable for contribution
cannot be obtained, each of the other parties against
whom recovery is allowed is liable to contribute
a proportional part of the unpaid portion of the
noncontributing party's share and may obtain judgment
in a pending or subsequent action for contribution
from the noncontributing party."
On its face, section 27-1-703, MCA, has limited application.
It applies only in comparative negligence cases and only
where recovery is allowed against more than one party.
Further, it provides for contribution in proportional rather
than prorata or equitable degrees.
Therefore, section 27-1-703, MCA, does not apply to a
case where an innocent plaintiff, that is, a plaintiff who
is not guilty of any contributory negligence, sues one of
two or more joint tortfeasors for the injuries sustained.
Unless the plaintiff is guilty of some degree of contri-
butory negligence, there is no negligence to be compared
with that of the defendant or defendants in a comparative
negligence case. See, Wenatchee Wenoka Growers Ass'n.
v. Krack Corp. (1978), 89 Wash.2d 847, 576 P.2d 388, 389,
390.
Since section 27-1-703, MCA, applies only to comparative
negligence cases, we adhere to the rule that this statute
does not grant a right of contribution among joint tortfeasors
where comparative negligence is not an issue.
We further hold that even in comparative negligence
cases, the right of contribution granted in section 27-1-703,
MCA, applies only to defendants against whom judgment has
been recovered by the plaintiff. The terms of the statute
itself appear to command that result. It speaks of contri-
bution in paragraph (1) where "recovery is allowed against
more than one party", and in paragraph (2) provides what
occurs if contribution cannot be obtained "from a party
liable for contribution." That language is not an invitation
to engage in third party practice under Rule 14, M0nt.R.Civ.P.
One reason is that Rule 14 is a procedural rule, and is not
intended to alter, expand or abridge substantive rights.
Moore's Federal Practice, 814.03[1]. There was no substantive
right to contribution in 1975 or 1977, when the comparative
negligence statutes were adopted in Montana. Another reason
is that there is no indication of legislative intent, unless
legislative intent can be found by implication, to change
the substantive rule against contribution among joint
tortfeasors.
In examining the legislative history of section 27-1-
703, MCA, to see if the legislature by implication intended
to do away with the substantive rule, we find a strong
indication to the contrary. When the legislature in 1977
was considering the bill which eventually became section 27-
1-703, MCA, that body decided not to take a quantum leap
into the unknown. House Bill No. 320, 45th Legislature,
1977, originally provided in addition to the present pro-
visions of section 27-1-703, MCA, for (1) joinder - -
of any
parties whose negligence may have contributed as a proximate
cause to the damages claimed by the plaintiffs; (2) the abolition
of the last clear chance doctrine; and, (3) a definition of
negligence in strict liability and breach of warranty cases
that would give rise to the defense of contributory negligence.
The legislature struck these proposals before adopting
section 27-1-703, MCA, in its present form.
The-refusal of the legislature to permit mandatory
joinder of all tortfeasors in an action on the motion of
any party furnishes us with a strong implication that the
legislature, in adopting that statute, did not intend to
change the substantive rule against contribution among joint
tortfeasors.
We move now to a consideration of the second phase of
the contribution issue, that is, although the passage of
section 27-1-703, MCA, may not have done so, should this
Court now move on its own to abolish the rule against con-
tribution between joint tortfeasors. Consolidated urges
that other states have not waited for legislatures to act,
but have through judicial decisions provided for contribution
among all joint tortfeasors, sued and not sued as defendants
in an action. Consolidated cites Maine (Bedell v. Reagan,
- ' 1-
; .:
G%'Naine 292, 192 A. 2d 24 (1963); Wisconsin (Bielski v.
Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); and Washington,
D.C. (Knell v. Feltman, 174 F.2d 662 (D.C., C.A. 1949)).
New York may have also done so in Kelly v. Long Island
Lighting Co. (N.Y. 1972), 286 N.E.2d 241; Dole v. Dow Chemical
Company (N.Y. 1972), 282 N.E.2d 288. The State of Washington,
on the other hand, refused to move in that direction in
Wenatchee Wenoka Growers Ass'n. v. Krack Corp. (1978), 89
Wash.2d 847, 576 P.2d 388. The analysis of the Washington
state court is persuasive:
"Krack first suggests contribution between
tortfeasors is the natural corollary of the
comparative negligence principle expressed
in RCW 4.22.010. We agree the comparative
concept of RCW 4.22.010 expresses a new
public policy in this state. -- Godfrey
See also
- State, 84 Wash.2d 959, 530 P.2d 630 (1975).
v.
Yet, we are not fully convinced that this comparative
concept compels abrogation of the no-contribution
rule.
"Comparative negligence and contribution both
represent serious attempts to achieve greater
fairness in tort law. But, the underlying
policy considerations of each are quite
diffeGent. - - , Comment, Comparative
See, e.g.
Nealiaence, 49 Wash. L. Rev. 705 (1974); W.
2 2
Prosser - - Torts 5 50 (4th Ed. 1971); C.
~ a of
w
R. Heft & C. J. Heft, Comparative
Negligence Manual § 12.0 (1976); Leflar,
Contribution & Indemnity Between Tortfeasors,
81 u.Pa.L.~ev: 130 (92;Cnrbto
13),otiuin
Between Persons Jointly Charged for Negligence
-
--Merryweather v. Nixon, 12 Harv.L.Rev. 176 (18
"Comparative negligence is directed at compensating
one who has suffered a tort-related loss. Prosser,
Comparative Negligence, 51 Mich.L.Rev. 465 n.2
(1953). Comparative negligence means comparison
of the negligence of the plaintiff and the defendant.
Amend v. -
- Bell, 89 Wash.2d 124, 570 P.2d 138 (1977);
Bradley v. Maurer, 17 Wash.App. 24, 29, 560 P.2d
719 (1977). One who has suffered damages is allowed
to seek recovery even though his own negligence may
have proximately caused the injury complained of.
-
RCW 4.22.010; Godfrey v. State, supra.
"Contribution, on the other hand, is directed at
equitably distributing between or among tortfeasors
the responsibility for paying those damages suffered
by the injured party. See Prosser, of Torts
at 307: Commissioners' Prefatory Note (1939 Act),
-.- -
uniform Contribution Among ~ o r teasors Act, 12
f
U.L.A. 60 (1975). Contribution, unlike comparative
negligence, is neither related to the damages an
injured party is entitled to receive nor to the
question of whether that injured party should
receive less than his full damages suffered from
a tort-related loss." Wenatchee, 576 P.2d at 389,
390.
Abolition of the substantive Montana rule against contribution
among joint tortfeasors would be a giant step in the legal
history of Montana. Such an abolition would reach into
every aspect of tort law where more than one tortfeasor was
involved. Moreover, the comparative negligence statutes in
Montana are relatively new. To date, we have not been
called upon to render a decision concerning the substantive
law underlying the comparative negligence statute, or its
companion contribution statute. Those facts, in addition to
the refusal of the legislature to adopt mandatory contribution
among joint tortfeasors, leads us to conclude that the wiser
course is not to rush in where the legislature feared to tread.
The other portion of the question certified to us by
Judge Smith is whether a tortfeasor has a cause of action
for indemnity against any joint tortfeasor not joined by the
plaintiff by a party defendant.
"Indemnity" shifts the entire loss from one party
compelled to bear it to the shoulders of another who should
bear it instead. One court has referred to indemnity as
contribution "in the extreme form." United States v. Savage
Truck Line, Inc. (U.S.C.A. 4th, 1953), 209 ~ . 2 d
442, 447.
In Crosby v. Billings Deaconess Hospital (19671, 149 Mont.
314, 426 P.2d 217, this Court sanctioned a cross-claim for
indemnity by the hospital against the manufacturer of a television
regulator switch which had burned the mouth of a patient in the
hospital. The hospital claimed that it was entitled to indemnity
for any damages it might be required to pay the plaintiff due
only to the relationship between the plaintiff and the hospital,
and not due to any negligence on the part of the hospital. In
permitting the claim for indemnity, we quoted with approval,
the language from Great Northern Railway Company v. United
States (D.C. Mont. 1960), 187 F.Supp. 690, 693, which said:
"Where the parties are not in pari delicto,
and an injury results from the act of one
party whose negligence is the primary, active
and proximate cause of the injury, and another
party, who is not negligent or whose negligence
is remote, passive and secondary, is nevertheless
exposed to liability by the acts of the first
party, the first party may be liable to the
second party for the full amount of damages
incurred by such acts."
In Panasuk v. Seaton (U.S.D.C. Mont. 1968), 277 F.Supp.
979, Judge Jameson, who had written the Great Northern decision,
reviewed the law pertaining to right of indemnity among
joint tortfeasors. He concluded that he found no case where
the rule permitting an action for indemnity had been extended
to a collision between two vehicles. In effect Judge Jameson
concluded to permit indemnity as to a nonjoined tortfeasor
in motor vehicle cases would open the door to an indemnity
claim in every tort action involving multiple tortfeasors.
The rule in Panasuk has been endorsed by this Court in Auto
C1. Ins. Co. v. Toyota Mot. Sales, supra; Crosby v. Billings
Deaconess Hospital, supra; Fletcher v. City of Helena (1973),
163 Mont. 337, 517 P.2d 365; as well as in the earlier case
of Variety, Incorporated v. Hustad Corporation (1965), 145
Mont. 358, 368, 400 P.2d 408, 414. See also: St. Paul Fire
and Marine Insurance Co. v. Thompson (19691, 152 Mont. 396,
451 P.2d 98; DeShaw v. Johnson (1970), 155 Mont. 355, 472
P.2d 298; Duchesneau v. Silver Bow County (1971), 158 Mont.
In American Home Assur. Co. v. Cessna Aircraft Co.
(U.S.C.A. loth, 1977), 551 F.2d 804, 808, the Court of
Appeals said, "The Montana law is that when each tortfeasor
is affirmatively negligent, neither is entitled to indemnity."
We see no need to change this settled principle of our law.
We hold therefore, that except in those cases specifically
provided for in sections 27-1-702 and 27-1-703, MCA, there
is no right between multiple
PA D Gtof ccontribution
I& at
tortfeasors elther
C e
A
or to indemnity as a matter of substantive Montana law.
Costs in this case are assessed to Consolidated.
i Justice J
w
We Concur:
..............................
Chief Justice
h %
..............................
Justices
Mr. Chief J u s t i c e Frank I . Haswell d i s s e n t i n g :
I respectfully dissent. I n m view we have n o t answered
y
t h e q u e s t i o n c e r t i f i e d t o u s by t h e f e d e r a l c o u r t .
W e have been asked whether s u b s t a n t i v e Montana law p e r m i t s
a c l a i m f o r c o n t r i b u t i o n o r indemnity by a s i n g l e j o i n t t o r t -
f e a s o r who h a s been sued by t h e i n j u r e d p a r t y a g a i n s t o t h e r
j o i n t t o r t f e a s o r s n o t j o i n e d as d e f e n d a n t s i n t h a t s u i t . The
m a j o r i t y have answered s u b s t a n t i a l l y "no" a s between j o i n t
tortfeasors i n pari delicto. I n m view t h i s begs t h e q u e s t i o n .
y
I t presupposes t h a t a l l j o i n t t o r t f e a s o r s a r e e q u a l l y a t f a u l t
i n c a u s i n g p l a i n t i f f ' s damages, a n a s s u m p t i o n n o t encompassed
i n t h e c e r t i f i e d q u e s t i o n n o r y e t d e t e r m i n e d by t h e f e d e r a l
court.
I would a l l o w c o n t r i b u t i o n i n p r o p o r t i o n t o f a u l t among
a l l j o i n t t o r t f e a s o r s w i t h o u t r e g a r d t o whom p l a i n t i f f sued.
F a i r n e s s a l o n e compels t h i s r e s u l t . The u l t i m a t e a p p o r t i o n m e n t
of p l a i n t i f f ' s damages among t h o s e r e s p o n s i b l e i n p r o p o r t i o n
t o t h e i r r e s p e c t i v e d e g r e e s of f a u l t i s a r e a l i s t i c way t o
provide j u s t i c e . Montana's c o m p a r a t i v e n e g l i g e n c e s t a t u t e
r e c o g n i z e s t h i s p r i n c i p l e o f a p p o r t i o n m e n t between a p l a i n t i f f
and d e f e n d a n t i n a n e g l i g e n c e a c t i o n . S e c t i o n 27-1-702, MCA.
The same p r i n c i p l e of a p p o r t i o n m e n t i s r e c o g n i z e d between
m u l t i p l e d e f e n d a n t s j o i n t l y and s e v e r a l l y l i a b l e who a r e sued
by t h e p l a i n t i f f . S e c t i o n 27-1-702, MCA.
What j u s t i f i c a t i o n e x i s t s f o r denying t h e same p r i n c i p l e
of a p p o r t i o n m e n t among a l l j o i n t t o r t f e a s o r s r e g a r d l e s s of
j o i n d e r by p l a i n t i f f ? P l a i n t i f f ' s r i g h t t o be made whole i s
p r o t e c t e d by making e a c h t o r t f e a s o r i n d i v i d u a l l y l i a b l e t o
him f o r h i s e n t i r e l o s s . P l a i n t i f f has t h e choice of suing
one t o r t f e a s o r , some o f t h e t o r t f e a s o r s , o r a l l t h e t o r t f e a s o r s .
But what r i g h t h a s p l a i n t i f f t o c o n t r o l t h e u l t i m a t e appor-
t i o n m e n t o f h i s l o s s among t h o s e who c o n t r i b u t e d t o i t ? None.
Yet this is precisely the result of denying contribution
among all joint tortfeasors.
I find no reason or justice in a rule which permits the
plaintiff through his choice of defendants to control the
ultimate apportionment of his loss among those responsible
for it. Plaintiff's choice of defendants is frequently
determined by considerations foreign to a fair and just
apportionment of the loss. Sometimes that choice is made on
the basis of comparative financial responsibility or ease of
collection among the respective tortfeasors; at times the
existence or nonexistence of liability insurance is the
controlling factor; at other times it is governed by plain-
tiff's business, social, blood or marriage relationship to
one or more of the tortfeasors; occasionally whim, spite or
collusion determines plaintiff's choice of defendants; and,
at times jurisdictional or process considerations are para-
mount. See Prosser, - - -of Torts (4th Ed-), 950, p. 307;
The Law
Berg, 43 Insurance Counsel Journal, 577, 586 (October, 1976).
Two principal considerations appear to dominate the
majority's denial of contribution in favor of a sued tort-
feasor against joint tortfeasors not named as defendants:
(1) Legislative approval of such contribution has been
denied and this Court should not invade this area; and (2)
joinder problems may dilute plaintiff's ability to promptly
secure judgment for his loss.
I find no indication that the Montana legislature ad-
dressed the substantive rule denying contribution
among joint tortfeasors. House Bill 320, 45th Sess. (19771,
(now section 27-1-703, MCA) as originally introduced pro-
vided for mandatory joinder of all joint tortfeasors in the
original action, abolition of the last clear chance doctrine,
and a definition of negligence in strict liability and
breach of warranty cases that would give rise to the defense
of contributory negligence. These provisions were stricken
from the bill as finally enacted. The first of the stricken
provisions was procedural, not substantive; the second and
third concern liability between plaintiff and defendant,
not among joint tortfeasors. I find no indication from this
legislative history that the legislature approved the
substantive law denying contribution among joint tortfeasors.
The most that can be said is that the legislature did not
enact a statute permitting contribution.
The source of the rule denying contribution among joint
tortfeasors is the English common law. Merryweather v.
Nixan (1799), 8 Term. Rep. 186, 101 Eng. Rep. 1337; Everet
v. Williams (1725), 9 L.Q.Rev. 197. Merryweather and Everet
involved willful, deliberate and conscious wrongs. When
transplanted to the United States, the rule was applied
generally to cases of independent and concurrent negligence
contributing to a single result. See Prosser, - - -of
The Law
Torts (4th Ed.), 850, p. 306, and cases therein cited.
Montana followed suit. See Panasuk v. Seaton (D. Mont.
1968), 277 F.Supp. 979; Variety Incorporated v. Hustad
Corporation (1965), 145 Mont. 358, 400 P.2d 408. ~ e i n ga
rule of the common law, it is purely judge-made law. ~udges
created the rule by judicial decision, and judges can change
it in the same manner. The reason for the rule was that
persons who violated the law or committed a wrong should not
be permitted to seek relief in the courts. This approach is
now as extinct as the dodo. Montana's 1972 Constitution
guarantees access to the courts to all Persons and speedy
recovery afforded for every injury of person, property or
character. Art. 11, Sec. 1 6 , 1972 Mont. Const. When t h e
r e a s o n s f o r t h e r u l e no l o n g e r e x i s t , t h e r u l e i t s e l f f a i l s .
S e c t i o n 1-3-201, MCA.
J o i n d e r problems s h o u l d n o t be p e r m i t t e d t o i n t e r f e r e w i t h
t h e substantive r i g h t of contribution. The F e d e r a l Rules o f
C i v i l P r o c e d u r e and t h e Montana R u l e s of C i v i l P r o c e d u r e on
j o i n d e r o f p a r t i e s , s e v e r a n c e of c l a i m s , and t h i r d p a r t y p r a c -
t i c e a r e a d e q u a t e t o p r o t e c t p l a i n t i f f ' s s u i t f o r damages from
becoming e n t a n g l e d i n time-consuming c o n t r o v e r s i e s and p r o c e -
d u r e s c o n c e r n i n g t h e r i g h t s of m u l t i p l e d e f e n d a n t s and t h i r d
p a r t i e s vis-a-vis one another. Such s i t u a t i o n h a s l o n g e x i s t e d
i n Montana i n any case i n v o l v i n g m u l t i p l e d e f e n d a n t s and t h i r d
p a r t y c l a i m s and i s n o t c o n f i n e d t o t h e f i e l d of c o n t r i b u t i o n .
Much t h e same d i s c u s s i o n a p p l i e s t o t h e s u b s t a n t i v e r i g h t
of indemnity. I t s h i f t s u l t i m a t e a p p o r t i o n m e n t of p l a i n t i f f ' s
e n t i r e l o s s from t h e t o r t f e a s o r sued o n t o t h e s h o u l d e r s of o n e
o r more j o i n t t o r t f e a s o r s n o t named a s d e f e n d a n t s . I agree
t h a t t h i s i s n o t p o s s i b l e where t h e i n d e m n i t o r and i n d e m n i t e e
a r e i n pari delicto. However, t h a t a s s u m p t i o n i s n o t c o n t a i n e d
i n the c e r t i f i e d question. Again, t h e answer of t h e m a j o r i t y
b e g s t h e q u e s t i o n s u b m i t t e d t o u s f o r d e c i s i o n i n my view. As
a matter o f s u b s t a n t i v e Montana l a w , I would n o t deny t h e sued
defendant a c l a i m o r cause of a c t i o n a g a i n s t a j o i n t t o r t f e a s o r
o r t o r t f e a s o r s s i m p l y b e c a u s e p l a i n t i f f had n o t j o i n e d t h e
l a t t e r as d e f e n d a n t s . F a i r n e s s and j u s t i c e r e q u i r e a l l o w i n g
a c l a i m f o r indemnity f o r t h e s a m e r e a s o n s t h a t a c l a i m f o r
c o n t r i b u t i o n s h o u l d be p e r m i t t e d i n m y o p i n i o n .
F o r t h e f o r e g o i n g r e a s o n s , I would answer t h e c e r t i f i e d
q u e s t i o n i n t h i s manner: S u b s t a n t i v e Montana law g r a n t s a
t o r t f e a s o r a cause of a c t i o n f o r c o n t r i b u t i o n o r indemnity
a g a i n s t any j o i n t t o r t f e a s o r n o t j o i n e d by t h e p l a i n t i f f a s a
p a r t y defendant.
? A 4 $. 9&
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Chief S u s t i c e
Mr. Justice Daniel J. Shea concurring with the dissent
of Mr. Chief Justice Frank I. Haswell:
I concur in the dissent of Chief Justice Frank I.
Haswell, and simply add that the time should be long
past when the plaintiff, by his choice of defendants,
can control the ultimate decision of who finally pays
for the loss. That is not, and should not be of any
concern to the plaintiff. A plaintiff's only legitimate
interest is to obtain full legal redress for the harm
caused, not to prevent others from redressing their
grievances as between themselves.