No. 86-218
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
MAURICE DEAN PRIEST,
Plaintiff, Respondent and
Cross-Appellant,
-vs-
LAWRENCE TAYLOR, JR., PEARL R.
TAYLOR, and LARRY KEVIN TAYLOR, JR.,
a minor,
Defendants, Appellants, and
Cross-Respondents,
and
LINDA PRIEST,
Plaintiff and Appellant,
-vs-
LAWRENCE TAYLOR, JR., PEARL R. TAYLOR,
and LARRY KEVIN TAYLOR, JR., a minor,
Defendants and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Landoe, Brown, Planalp, Kommers & Johnstone; Gene
I. Brown, Bozeman, Montana
For Respondent:
Robert L. Stephens, Jr., Billings, Montana
Submitted on Briefs: May 18, 1987
Decided: July 13, 1987
JUL 1 3 1987
Filed:
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Defendants Lawrence Taylor, Jr., Pearl Taylor and Larry
Kevin Taylor, Jr., (Taylors) appeal a Yellowstone County
District Court order granting a new trial to the plaintiff
Maurice Priest in this personal injury action. Mr. Priest
and his wife Linda cross appeal from a district court order
denying their motion to file an amended complaint. Maurice
Priest also cross appeals on one issue relating to voir dire.
The issues are,
1) whether the court properly granted a new trial to
plaintiff because;
a) the court failed to specifically instruct the jury
on defendants' burden to show what part of plaintiff's
injuries were attributable to his preexisting condition;
and/or,
b) the court failed to instruct the jury on the
aggravation of plaintiff's preexisting mental condition;
2) whether the court erred in denying the Priests'
motion to amend the complaint to include an action for loss
of consortium;
3) whether the court improperly refused to allow
plaintiff to use certain exhibits during voir dire. We
affirm the grant of a new trial and the ruling in regard to
voir dire. We reverse the order denying the motion to amend
the complaint.
On August 28, 1982, plaintiff was involved in an
automobile accident in Billings, Montana. A car driven by
Larry Kevin Taylor, Jr., a minor, struck the plaintiff's car
from the rear. Prior to the accident, plaintiff had a
history of rather severe mental illness and of injuries to
his right shoulder and/or back.
In May 1984, plaintiff filed a complaint in Yellowstone
County District Court alleging that Larry Kevin Taylor, Jr.,
had negligently and recklessly caused the accident. The
complaint also sought to impute Larry's alleged negligence to
his parents, Lawrence and Pearl Taylor, under § 61-5-108 (2),
MCA. On August 28, 1985, plaintiff and his wife Linda moved
(1) to amend the complaint by adding Linda Priest as a party
plaintiff to assert her claim for loss of consortium, or
(2) in the alternative, that the amended complaint be
allowed to proceed as an independent, separate action on
behalf of Linda. In October 1985, the court denied the
motion to amend reasoning that 1) Rule 15, M.R.Civ.P., allows
a party to amend his pleadings under certain circumstances;
2) this motion to amend sought to add an additional person as
a party to assert a new claim; 3) the wife was not a party as
contemplated by Rule 15; and 4) therefore, the motion was not
truly a motion to amend under Rule 15.
This action went to trial in November 1985. During voir
dire, plaintiff's counsel attempted to use five signs upon
which were printed legal words or phrases and explanatory
comments. The phrases were "proximate cause," "burden of
proof," "preexisting condition" and "damages." Plaintiff
hoped to explore the jurors' opinions, if any, on these
concepts. The court disallowed the use of the signs.
The court and the parties' counsel struggled for some
time attempting to formulate proper jury instructions on two
issues; i.e., (1) the aggravation of preexisting conditions
and (2) the burden of proof as to the aggravation of injury
and as to the divisibility of injury. Ultimately, jury found
for the plaintiff, awarding him $15,100. The plaintiff moved
for a new trial and that motion was granted. The court ruled
that it committed two errors in instructing the jury. One
error was the failure to instruct the jury that once the
plaintiff had satisfactorily proved that the accident
aggravated his preexisting condition, the burden of proof
shifted to the defendants to show what portion of plaintiff's
damages was attributable to the accident and what portion was
attributable to the preexisting condition. The second error
related to instructing the jury on the aggravation of
plaintiff's preexisting mental condition. Defendants appeal
the grant of a new trial.
The standard of review is clear.
Whether to grant or deny a new trial is
within the sound discretion of the trial
court, (citation omitted), and will not
be overturned absent a showing of
manifest abuse of that discretion.
(Citation omitted.)
Walter v. Evans Products Co. (Mont. 19831, 672 P.2d 613, 616,
40 St.Rep. 1844, 1847.
We first address the court's ruling as to the burden of
proof on the apportionment of damages. The court gave two
general instructions on the burden of proof and apportioning
damages. Instruction number 2 defined "preponderance of the
evidence" and instructed that a party asserting the
affirmative of an issue has the burden of proving that issue
by a preponderance of the evidence. Instruction number 22
stated in pertinent part,
If you find that the plaintiff Is
pre-existing physical condition was
aggravated by the accident, then it is
your duty to try to apportion the harm
sustained by the plaintiff between his
pre-existing conditions and the harm
contributed to or aggravated by the
accident, if any.
If you find that such harm is divisible,
you may award only such damages as you
may attribute to the accident. But, if
you find that the harm caused is not
divisible then, in such event, you must
award damages to compensate the plaintiff
for all of the harm he has sustained.
As stated, one of the grounds for the grant of a new trial
was the failure to instruct the jury that once the plaintiff
had satisfactorily proved the accident aggravated his
preexisting condition, the burden of proof shifted to the
defendant to prove the proper apportionment of damages. he
lower court apparently reasoned that such an instruction was
required by Azure v. City of Billings (1979), 182 Mont. 234,
596 P.2d 460. Azure involved two joint tortfeasors who were
potentially jointly and severally liable for the entire
judgment. In that situation, this Court stated:
But where the harm caused is
theoretically divisible, plaintiff's
burden is to make a prima facie showing
that the harm caused was at least a
contributing proximate result of the
defendant's act or omission. The burden
then shifts to the defendant to either
deny all liability or to prove that the
harm caused can b e divided and the
damages therefore apportioned.
Azure, 596 P.2d at 471. Under Azure, the burden does shift
to the defendant to establish apportionment between the joint
tortfeasors. However, this Court has not explicitly ruled
that the burden of proof shifts to the defendant to establish
apportionment of damages between a preexisting condition and
subsequent injury.
In Callihan v. Burlington Northern, Inc. (1982), 201
Mont. 350, 654 P.2d 972, we were presented with a plaintiff
with a preexisting condition, a defendant and the possibility
of an apportionment of damages between the preexisting
condition and the later accident. The defendant objected to
that part of a jury instruction which advised the jury that,
"But if you find that the evidence does not permit such an
apportionment, then the defendant is liable for the entire
disability." Callihan, 654 P.2d at 976. In upholding the
propriety of that instruction, this Court cited the following
reasoning from Azure,
". . . to impose upon the plaintiff the
sometimes impossible burden of proving
which tortious act did which harm, would
be an expression of a judicial policy
that it is better that a plaintiff,
injured through no fault of his own,
should take nothing simply because he
could not prove which tortious act caused
which harm. We believe on the other
hand, that where the tortious act is
established, it is better that the
tortfeasor should be subject to paying
more than his theoretical share of the
damages in a situation where the tortious
conduct has contributed to the confused
situation making it difficult to prove
which tortious act did the harm."
Callihan, 654 P.2d at 976, quoting Azure, 596 P.2d at
470-471. This Court held that the Azure rationale applied in
Callihan, so that the single defendant would be liable for
the entire disability if the evidence did not permit an
apportionment between the preexisting condition and the
aggravating accident.
The rationale behind the Azure rule (the burden of proof
shifts to the defendant to establish apportionment after the
plaintiff has met his initial burden) also applies in this
situation. See 2 Minzer, Nates, Kimball, Axelrod and
Goldstein, Damages - -
In Tort Actions, S 15.34[1] [a], p. 15-111,
(1986); ("The plaintiff is not charged with a burden of proof
as to the actual apportionment of damages in an aggravation
case. Any burden of that nature must be assumed by the
defendant, since the defendant is the party standing to gain
by litigating the apportionment issue.") In an appropriate
case, the instruction proposed by the District Court could be
proper to clarify that the plaintiff does not have the burden
of proving what portion of his disability is attributable to
the defendant in a preexisting condition case.
However, as a caveat, we state that we prefer the
following language over that proposed by the lower court.
Once the plaintiff has satisfactorily met his burden (of
proving that the accident aggravated his preexisting
condition) and where the plaintiff's evidence shows no basis
for apportionment, the defendant has the burden of going
forward with evidence to establish apportionment. We do
- hold that such an instruction is required in this kind of
not
case. We do hold that the lower court did not abuse its
discretion in granting a new trial on the basis that such an
instruction should have been given.
We also briefly address the other reason given by the
lower court for granting a new trial. Although expressed
somewhat inexactly, the court found that it should have
instructed the jury that plaintiff could recover damages if
the accident aggravated his preexisting mental condition.
The court did instruct that plaintiff could recover for any
aggravation of his preexisting physical condition.
Defendant argues that plaintiff disavowed the theory of
aggravation of a mental condition and, therefore, was not
entitled to an instruction on that point. It is true that
plaintiff's counsel gave somewhat conflicting signals on this
issue. At one point, he appeared to concede that he was not
pursuing the theory of aggravation of preexisting mental
condition. However, at other times, specifically in his
answers to interrogatories and the pre-trial order, the
plaintiff did advance this claim. For example, the plaintiff
unequivocally stated in his answers to interrogatories:
The accident which forms the basis of
this action also served to aggravate
plaintiff's pre-existing psychiatric
condition ... Prior to the accident,
the plaintiff's mental condition had been
stabilized with medication. Though the
plaintiff continues to conscientiously
use this and additional medication, since
the time of the accident he has suffered
from markedly increasing delusions of
persecution, expansiveness, feelings of
isolation and grandiosity, uncontrollable
tremulous fits ...
Moreover, we note that the plaintiff proposed instructions
which presented this theory, albeit in a vague and roundabout
way. Priest's treating psychiatrist testified that he
believed the accident caused an aggravation of Priest's
mental condition. We emphasize the great deference we accord
to a trial court's admission of error and grant of a new
trial. Thus, we find that the trial court did not abuse its
discretion in granting a new trial on this point.
The second issue is whether the lower court erred in
denying the Priests' motion to file an amended complaint. We
note that appellant questions, rather disingenuously, whether
this issue is properly before this Court.
The Priests submitted a separate brief arguing the issue
of the amended complaint. Taylors correctly point out that
that brief was submitted under Linda Priest's name. They
argue that because Linda was not a party below, she cannot
file a separate appellant's brief and the issue debated in
that brief is not on appeal. We disagree. The motion to
amend the complaint was made by both Maurice and Linda
Priest. Moreover, both of their names appear on the notice
of appeal from the denial of their motion to amend. For the
Taylors benefit, we repeat what we stated in our December
1986 order, "Maurice Dean Priest is ... entitled to have
considered the propriety of the order denying his motion to
file an amended complaint ... "
In denying the motion to amend, the District Court
apparently reasoned that a Rule 15 motion to amend cannot be
used to add a new plaintiff asserting a new claim. Rules
15 (a) and (c), M.R.Civ.P., provide in relevant part:
(a) A party may amend his pleading once
as a matter of course at any time before
a responsive pleading is served or, if
the pleading is one to which no
responsive pleading is permitted and the
action has not been placed upon the trial
calendar, he may so amend it at any time
within 20 days after it is served.
Otherwise a party may amend his pleading
only by leave of court or by written
consent of the adverse party; and leave
shall be freely given when justice so
requires...
(c) Whenever the claim or defense
asserted in the amended pleading arose
out of the conduct, transaction, or
occurrence set forth or attempted to be
set forth in the original pleading, the
amendment relates back to the date of the
original pleading. An amendment changing
the party against whom a claim is
asserted relates back if the foregoing
provision is satisfied and, within the
period provided by law for commencing the
action against him, the party to be
brought in by amendment (1) has received
such notice of the institution of the
action that he will not be prejudiced in
maintaining his defense on the merits,
and (2) knew or should have known that,
but for a mistake concerning the identity
of the proper party, the action would
have been brought against him . .
.
In the instant case, there was a responsive pleading prior to
the motion to amend the complaint. Therefore, plaintiffs
needed leave of court to amend the pleadings. We have
construed Rule 15 broadly and "it is the rule to allow
amendments and the exception to deny them." Union
Interchange, Inc. v. Parker (1960), 138 Mont. 348, 354, 357
P.2d 339, 342. In White v. Lobdell (Mont. 1984), 678 P.2d
637, 641-642, 41 St.Rep. 346, 351-352, this Court quoted with
approval the United States Supreme Court's analysis of
Federal Rule 15 in Foman v. Davis (19621, 371 U . S . 178,
"Rule 15(a) declares that leave to amend
'shall be freely given when justice so
requires'; this mandate is to be heeded
.... If the underlying facts or
circumstances relied upon by a plaintiff
may be a proper subject of relief, he
ought to be afforded an opportunity to
test his claim on the merits. In the
- -
absence of any apparent or declared
reason ... the leave soughTshould, -as
-
the rules require, be 'freely given.' -
course, the g r a n t or denial of an
Of
opportunit to amend is within the
discretionY - f- ~istrTct Court,
o the
outright refusal to grant the leave
without any justifyTng reasonappearing
- - denial - - - exercise of
for the is not an
discretion; - - merely abuse - - z
it is of t h
discretion - inconsistent - -
and with the
s ~ i r i tof the Federal Rules."
L - -
(Emphasis
added. )
We hold that the District Court abused its discretion in
rejecting the motion to amend. The court found, incorrectly,
that Rule 15 could not be used to add a new plaintiff
asserting a new cause of action. Numerous federal cases have
established that a motion to amend may add, or substitute, a
new plaintiff. Further, the new plaintiff's claim can relate
back und.er Rule 15 (c), if the Rule 15 (c) requirements are
met, so that an otherwise time-barred claim can be litigated.
See, e.g., Staggers v. Otto Gerdau Company (2nd Cir. 1966),
359 F.2d 292; Yorden v. Flaste (D.C. Del. 1974), 374 F.Supp.
516; Garr v. Clayville (D.C. Del. 1976), 71 F.R.D. 553;
Leachman v. Beech Aircraft Corp. (Ct.App. D.C. 1982), 694
F.2d 1301; Stoppelman v. Owens (D.C. D.C. 1983), 580 F.Supp.
944. Certain of the federal cases (Yorden, Garr and
Stoppelman among them) rely heavily upon the Advisory
Committee Note of 1966 to Rule 15 (c), which states in part,
The relation back of amendments changing
plaintiffs is not expressly treated in
revised Rule 15 (c) since the problem is
generally easier. Again the chief
consideration of policy is that of the
statute of limitations, and the attitude
taken in revised Rule 15(c) toward change
of defendants extends by analogy to
amendments changing plaintiffs.
Given the implications of the Advisory Committee Note and the
liberality with which leaves to amend are to be granted, we
hold that a motion to amend can properly add a plaintiff and
a new cause of action. We further hold that the District
Court erred in this case in refusing to allow Priests to
amend their complaint.
Taylors argue that the loss of consortium claim is
subject to a two year statute of limitations and that it is,
therefore, time barred. We disagree. This Court has
apparently never established the statute of limitations for
such a claim. We now hold that a loss of consortium claim is
subject to the three year statute of limitations provided in
S 27-2-204, MCA, for tort actions. This Court recently
agreed that
[a] cause of action for consortium of the
deprived spouse is separate and distinct
from the claim of the injured spouse and
that the basis for a consortium claim
lies in the Montana statutes in which the
husband and wife contract for obligations
of mutual respect, fidelity, and support.
Section 40-2-101, MCA.
Bain v. Gleason (Mont. 1986), 726 P.2d 1153, 1155, 43 St.Rep.
1897, 1899. Although an independent and distinct cause of
action, a loss of consortium claim is also completely
derivative from the other spouse's claim. Johnson v. United
States (D.C. Mont. 1980), 496 F.Supp. 597. The defendant's
conduct which gives rise to the husband's claim is the
conduct which gives rise to the wife's claim. Maurice
Priest's negligence claim is subject to the three year
statute of limitations and it would be illogical and
inequitable to subject the loss of consortium claim to a
different time limit when both claims arise out of the same
conduct. Given a three year statute of limitations, the loss
of consortium claim was timely filed on August 28, 1985.
Even if that claim had been filed past the filing
deadline, we hold that under Rule 15 (c), M.R.Civ.P., and
Tynes v. Bankers Life Co. (Mont. 1986), 730 P.2d 1115, 43
St.Rep. 2243, the loss of consortium claim would relate back
to the time of the original complaint. We have already set
forth above the "relation back" rule of Rule 15(c). In
Tynes, Bankers Life issued a group health insurance plan for
the employees of a plumbing shop owned by the Tynes family.
Walter Tynes was an employee, the owner of the shop and the
father of Kelley Tynes, a son who worked at the shop
sporadically. In 1977, Kelley began experiencing severe
mental problems. The Tynes family sought to secure coverage
for Kelley's medical expenses through the group health
insurance plan. After some confusion, Bankers Life denied
coverage in September 1979 on the basis that Kelley was not
an eligible employee. In December 1981, Kelley filed a
complaint against Bankers Life alleging breach of contract.
In May 1984, an amended complaint was filed adding Walter as
a plaintiff and stating three claims, i.e., breach of
contract, tortious breach of the implied covenant of good
faith and fair dealing and tortious violation of Montana's
insurance code. Kelley also amended his own complaint at
that time to allege breach of the implied covenant of good
faith and fair dealing and tortious violation of the
insurance code. Bankers Life claimed the new claims were
barred by statutes of limitation. This Court held that the
trial court did not err in allowing Walter's claims to relate
back to the time of Kelley's original complaint, thus evading
the bar of the statutes of limitation. This Court found that
Bankers Life would not be prejudiced, stating,
The claims of the two parties are nearly
identical. They arise from the exact
same "conduct, transaction, or occurrence
set forth ... in the original pleading"
as required by Rule 15(c), M.R.Civ.P.
The pleadings contain the same causes of
action. Finally, there is a "clear
identity of interest" between Kelley and
Walter. Walter was the original insured.
He agreed, as Kelley's father, to be
responsible for Kelley's medical bills
incurred at Wilson Center. The only
difference in the two pleadings is
damages.
Tynes, 730 P.2d at 1120-1121. Much the same can be said in
the instant case. Linda's claim arises from the same
occurrence set forth in her husband's original complaint, as
required by Rule 15(c), M.R.Civ.P. There is a clear identity
of interest between Linda and Maurice. The only additional
element which Linda's claim entails is damages. Liability
for the loss of consortium claim would be predicated upon
liability for the original negligence claim. Taylors do not
demonstrate, and we do not find, how they could be prejudiced
by allowing the loss of consortium claim to relate back.
Ample case law supports our decision today. In the
oft-cited case of Williams v. United States (5th Cir. 1968),
405 F.2d 234, the minor plaintiff's mother asserted the
minor's claim, as his best friend, against the United States.
The mother later sought leave to amend the complaint to add
herself as a plaintiff and assert her own claim for loss of
her child's services. The federal district court refused to
allow her claim because of the statute of limitations bar.
The Fifth Circuit Court of Appeals reversed and held that the
amendment would be allowed, notwithstanding the statute of
limitations. The court reasoned that the government had
prior notice of the mother's claim because (1) under local
law, liability to the minor would give rise to liability to
the parent, and (2) the circumstances would reasonably
indicate a likelihood the parent would incur losses of a
recoverable kind. Emphasizing the identity of interest
between the mother and child, the court found that allowing
the amendment would not prejudice the government. Although
Williams advances a somewhat stricter standard than our Tynes
case, the factual situation is similar.
An even more analogous case is Hockett v. American
Airlines, Inc. (D.C. Ill. 1973), 357 F.Supp. 1343. In
Hockett, the wife filed an amended complaint adding herself
as a new plaintiff asserting a claim for loss of consortium.
Her husband had filed the original complaint. The court
found that the wife's claim was asserted within the statute
of limitations. The court added, however, that even if the
wife had asserted her claim after the statutory period, it
would relate back under Rule 15(c) to the original complaint.
The court emphasized that the loss of consortium claim was
based upon the same allegations of negligence as the
husband's claim. The court added that,
[tlhe defendants cannot claim prejudice
in this case since they have been fully
advised of the facts upon which [the
husband] has based his claim and have
been vigorously preparing their defenses.
Hockett, 357 F.Supp. at 1348. The same holds true in the
instant case.
Lastly, in Hoch v. Venture Enterprises, Inc. (D.C. V.I.
1979), 473 F.Supp. 541, the plaintiff's wife sought leave to
amend her husband's complaint to assert a claim for loss of
consortium. She sought leave to amend after the statute of
limitations had run on her claim. The federal court allowed
her claim to relate back to the original complaint, reasoning
that the defendant would not suffer prejudice. The court
found that the wife's claim was based on the same allegations
of negligence as her husband's and, therefore, the defendant
had received the notice that the statute of limitations was
intended to afford.
These cases emphasize, and we agree, that amendments
involving new plaintiffs will relate back only in very
limited circumstances. Those circumstances are marked by a
close identity of interest between the original plaintiff and
the new plaintiff. Moreover, in this case, the claim is
based on the same allegations of negligence as the original
claim. We hold that Linda's claim would relate back to the
original complaint if her claim had been filed after the
limitation period.
The third issue is whether the lower court properly
prohibited the use of the printed signs during voir dire.
Absent an abuse of discretion, ... the
trial court has great latitude in
controlling voir dire. (Citation
omitted.
State v. LaMere (Mont. 1980), 621 P.2d 462, 466, 37 St.Rep.
1936, 1941. Here, although the lower court prohibited the
use of the signs, it stated that plaintiff's counsel could
explain the concepts involved and ask the jurors if they had
problems with those concepts. Thus, counsel could explore
the jurors' perceptions. We hold that the court's refusal to
allow the use of the signs was a reasonable limit on voir
dire and not an abuse of discretion.
Affirmed in part, reversed in part and remanded for new
trial.
&?
Justices