Plumb v. Fourth Judicial District Court

No. 96-023
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

ROBERTA PLUMB and MARTIN PLUMB,
Petitioners,

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THE FOURTH JUDICIAL DISTRICT COURT, h
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MISSOULA COUNTY, MONTANA, ....
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Respondent.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:
For Petitioners:
Gregory 0. Morgan (argued) and Robert Cameron
(argued), Gregory 0.Morgan, P.C.,Bozeman, Montana
For Respondent:
Dan L. Spoon, Reep, Spoon & Gordon, Missoula,
Montana; and John Alke (argued), Hughes, Kellner,
Sullivan & Alke, Helena, Montana
(for Defendant Southgate Mall)
For Amici Curiae:
Richard F. Cebull (argued) and Tiffany B.
Lonnevik, Brown, Gerbase, Cebull, Fulton,
Harman & Ross, Billings, Montana
(for Dr. Timothy Adams)
J. Daniel Hoven, Browning, Kaleczyc,
Berry & Hoven, Helena, Montana
(for Montana Municipal Insurance Authority)
Jerome T. Loendorf, Harrison, Loendorf,
Poston & Duncan, Helena, Montana
(for Montana Medical Association)
R. Stephen Browning, Browning, Kaleczyc,
Berry & Hoven, Helena, Montana
(for Montana Hospital Association)
 Randy J. Cox, Boone, Karlberg & Haddon,
Missoula, Montana; and T. Thomas Singer, Moulton,
Bellingham, Longo & Mather, Billings, Montana
(for Montana Defense Trial Lawyers, Inc.)
Robert L. Sterup, Dorsey & Whitney,
Billings, Montana
(for CBI Services, Inc.)
William A. Rossbach and Elizabeth A. Brennan,
Rossbach & Whiston, Missoula, Montana
(for Montana Trial Lawyers Association)

Heard: May 30, 1996
Submitted: May 31, 1996
Decided: November 2 2 , 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
I have no doubt that if the records of the time of
that ancient and apparently earliest of lawgivers,
Hammurabi, could be completely restored, we should learn
that in the third millennium before Christ men were
complaining about the inefficiency of legal procedure,
and I fancy that if any of you are destined in the year
7000 A.D. to revisit the glimpses of the moon to examine
and write a monograph for the celestial choirs upon the
condition of human law courts, you will be obliged to
report to some Seraphic Commission that mankind still
exhibits the same discontentment with its methods of
adjusting human differences that you know today. I must
therefore ask you to believe that in the course of a half
hour I do not hope to lay my finger on the cure for a
condition which is probably so inherent in our human
imperfections as to be persistent as long as the need for
litigation itself endures. We shall, I fear, be scarcely
satisfied with our settlement of disputes until we have
so purged and purified our natures as to bring down the
dove of domestic peace to be a permanent sojourner amid
the haunts of homo sapiens.
United States District Judge Learned Hand, The Deficiencies of
Trials to Reach the Heart of the Matter, a 1921 lecture before The
Association of the Bar of the City of New York, reprintedin 31 Int11

Socty of Barristers Q. 309 ( 1 9 9 6 ) .
Nowhere is our society's "discontentment with [our] methods of
adjusting human differences" more apparent than in the periodic
enactment, interpretation, and amendment of § 27-1-703, MCA, which

relates to apportionment of liability for damages. What follows is
this Court's most recent effort to blend due consideration for the
Legislature's responsibility to establish social policy with the
judiciary's responsibility to assure that those efforts are pursued
within constitutional parameters.
The plaintiffs, Roberta Plumb and Martin Plumb, brought this
action in the District Court for the Fourth Judicial District in
Missoula County to recover damages from the defendant, Southgate
Mall Associates, for injuries allegedly sustained by Roberta when
she slipped and fell while on the Mall's premises due to the Mall's
alleged negligent maintenance of those premises. Over plaintiffs'
objection, the Mall was allowed to file an amended answer in which
it alleged that plaintiffs' damages were caused or contributed to
by the negligent treatment and care provided by Roberta's treating
physician, and that its liability should be reduced accordingly
based on 5 27-1-703(6), MCA (1995). The Plumbs petitioned this

Court for supervisory control based on our decision in Newville v. State

DepartmentofFamilyServices (1994), 267 Mont. 237, 883 P.2d 793. We

granted supervisory control, and now, after consideration of the
arguments by both parties and numerous nmici curiae, we reverse the

order of the District Court which allowed the Mall to assert as an
affirmative defense that its liability should be diminished due to
the fault of an unnamed third party.
We have been asked to decide the following issues:
1. Are the facts and issues presented in this case
appropriate for resolution by supervisory control?
2. Does the opportunity for a defendant to reduce its
liability by asserting as an affirmative defense that plaintiffs'
damages have been caused or contributed to by unnamed third parties
pursuant to § 27-1-703(61, MCA (l995), violate principles of
substantive due process as guaranteed by the federal and state
constitutions?
 PROCEDURAL BACKGROUND
In their complaint, Roberta and Martin Plumb allege that on
September 13, 1992, Roberta entered the Southgate Mall in Missoula,
and just inside the entrance, slipped and fell after stepping on a
film of water which had not been visible on the highly polished
floor. The Plumbs allege that Roberta's fall was caused by the
Mall's negligent failure to keep its premises in a reasonably safe
condition and its negligent failure to warn her that the floor was
dangerously slippery. They allege that as a result of her fall,
Roberta injured her lower leg, and that because of that injury, she
has undergone a series of complicated surgical procedures and other
complications, following which her ability to walk is substantially
impaired. Both Roberta and Martin sought damages from the Mall for
their losses related to Roberta's injuries.
For its answer, the Mall admitted that it owned and controlled
the property in question, but denied the other material allegations
of the complaint and asserted various affirmative defenses.
Deadlines for the completion of discovery and amendments to
pleadings were established. However, four and one-half months
after its answer was filed, the Mall moved to amend the scheduling
order, based on Senate Bill 212 which amended § 27-1-703, MCA
,
(1987) by permitting the assertion of a "nonparty defense," and
providing certain procedural requirements in apparent response to
our decision in Newville. That Bill was signed by the Governor on

April 5, 1995, and became effective on that date. By its terms,
the Bill was applicable to all claims which had not yet been
reduced to final judgment.
The Mall's motion to amend the scheduling order was granted.
It then filed a motion to amend its answer pursuant to
§ 27-1-703(6), MCA (1995), to allege as a seventh affirmative

defense that the Plumbs' injuries were caused, in whole or in part,
by a third party--specifically, Roberta's treating physician, Dr.
Timothy J. Adams. As part of its proposed seventh affirmative
defense, the Mall alleged that since Dr. Adams' conduct contributed
to or caused Roberta's injuries, it is entitled to a proportionate
reduction in any damages for which it might be liable pursuant to
the amended statute.
The Plumbs opposed the Mall's motion to amend for various
reasons. Significant to our decision is their contention that
§ 27-1-703(6), MCA (19951, violates their rights and Dr. Adams'

right to substantive due process pursuant to our decision in
Newville .

Over the Plumbs' objection, the District Court granted the
Mall's motion to amend its answer, and allowed the Mall to allege
as a seventh affirmative defense that Dr. Timothy Adams contributed
to or caused Roberta's injuries and that its own liability should
be reduced or eliminated accordingly.
In order to avoid the time and expense of proceeding through
trial preparation and possible trial without knowing the proper
issues to be decided or the proper parties to be named, and blamed
or defended, the Plumbs petitioned this Court for supervisory
control.
ISSUE 1
Are the facts and issues presented in this case appropriate
for resolution by supervisory control?
The Plumbs contend that supervisory control is appropriate
because this case involves a constitutional issue of major
state-wide importance, there are no factual disputes related to
that issue, and the normal appeal process is inadequate.
The Mall contends that supervisory control is not appropriate
because factual issues underlie its "nonparty defense," and that
those issues should first be resolved by the District Court.
We have, essentially, two lines of authority which set forth
the standard for when supervisory control should be exercised.
However, those standards are not consistent.
The most oft-cited standard is that "supervisory control is
appropriate where the district court is proceeding under a mistake
of law, and in so doing is causing a gross injustice." See, e.g., Potter

v. DistrictCourt (1994), 266 Mont. 384, 880 P.2d 1319; Slateexrel. Torresv.

DistrictCourt (1994), 2 6 5 Mont. 445, 877 P.2d 1008; Staleexrel. Forsylhv.

DistrictCourt (1985), 216 Mont. 480, 701 P.2d 1346; Stuteexrel. Fitzgeraldv.

DistrictCourt (l985), 217 Mont. 106, 703 P.2d 148. This standard has

its roots in the turn-of-the-century case of Slate ex rel. Whiteside v. District

Cou,? (1900), 24 Mont. 539, 63 P. 395, in which this Court

explained:
 [Supervisory control] has its own appropriate
functions, and, without undertaking to define
particularly what these functions are, we think one of
them is to enable this court to control the course of
litigation in the inferior courts where those courts are
proceeding within their jurisdiction, but by a mistake of
law, or willful disregard of it, are doing a gross
injustice, and there is no appeal, or the remedy by
appeal is inadequate. Under such circumstances, the case
being exigent, no relief could be granted under the other
powers of this Court, and a denial of a speedy remedy
would be tantamount to a denial of justice.

W i e i e 24 Mont. at 562-63, 63 P. at 400
htsd,

A second line of authorities follows our decision in Stateexrel.

R c c t v. D s r c Court (1990), 244 Mont . 521, 798 P.2d 1004, where we
aid itit

held that assumption of original jurisdiction by supervisory
control is proper when:
(1) constitutional issues of -major statewide
importance are involved;
(2) the case involves purely legal questions of
statutory and constitutional construction; and

( 3 ) urgency and emergency factors exist, making the
normal appeal process inadequate.
Racicot, 244 Mont. at 524, 798 P.2d at 1006.

While it is correct that prior to R c c f we had exercised
aio

supervisory control under all three circumstances set forth in the

Racicol test, that decision has subsequently been interpreted to mean

that all three circumstances must be present before supervisory
control will be accepted. The three-part R c c t test has been
aio

followed in Craig v. District Court (1993), 262 Mont. 201, 202, 864 P.2d

791, 792-93, Stateexvel.Nelsonv.
Dist~ictCaurt (1993), 262 Mont. 70, 72, 863
P.2d 1027, 1028, and AssociatedPressv.St~e (lggl), 250 Mont. 299, 301,

We conclude that while the issues in this case satisfy either

line of authorities, there will be circumstances which are

appropriate for the exercise of supervisory control pursuant to

Article VII, Section 2(2), of the Montana Constitution, and

Rule 17(a), M.R.App.P.,which do not satisfy the three-part test.

Therefore, to the extent that the Rncicot decision suggests that all

three elements must be established before supervisory control is

exercised, and to the extent that subsequent decisions have applied
the test in that fashion, they are reversed.

An example of why the three-part test may not be appropriate
in every case is our decision in Stnte ex reL Deere & Co. v. District Cozrr!

(1986), 224 Mont. 384, 730 P.2d 396. In Deere, we exercised

supervisory control to decide another procedural issue presented by

§ 27-1-703, MCA (1981). Even though that case did not present a
constitutional issue, we accepted jurisdiction in the interest of

judicial economy. We stated:
We turn now to the other issues raised by the
parties in the cause. Wade's Backhoe contended that this
cause does not present a sufficient reason for the
issuance of a writ of supervisory control or other
appropriate writ. In view of the importance of the issue
presented here such a contention is really a subissue.
If we had decided to denv the application for writ
without comment on the qrounds that the matter could
later be looked at bv us on appeal, we would be foresoinq
an important opportunity for the instruction of the
courts and counsel as to our interpretation of amended
Section 27-1-703, MCA, under the facts presented. In
matters involvinq su~ervisorv control, this Court has
followed the practice of prdceeding on a case-by-case
basis though we are careful not to substitute the power
 of supervisory control for an appeal. S a e ex reL R i v.
tt ed
D s r c C u . (l953), 126 Mont. 489, 255 P.2d 693. Justice
ititort
and judicial economy is served when, faced with a record
that shows the relator is deprived of a fundamental
right, we resolve the issue in favor of the relator and
assume jurisdiction. S a e ex uel. Coburn v. B n e t ( 1982 ) , 202
tt ent
Mont. 20, 655 P.2d 5 0 2 . We have also said that when a
cause in the District Court is mired in procedural
entanglements and an appeal is not an adequate remedy, we
will issue a writ of supervisory control. S a e e rel. L a i t
tt x evt
v. D s r c Cowt (1977) 172 Mont . 12, 560 P.2d 517.
itit , We
determine that this is an appropriate case for
supervisory control and have therefore assumed
jurisdiction.
Deere, 224 Mont. at 399, 730 P.2d at 406.

We conclude that the constitutionality of § 27-1-703(6),MCA
(1995), is likewise an appropriate issue to decide by supervisory
control. If, as we later conclude, the District Court is
proceeding based on a mistake of law when it permits the Mall to
blame an unnamed third party for Roberta's injuries, then the
course of discovery will be affected, the cost of preparation and
trial will be affected, settlement by the parties will be rendered
more difficult, and the value of any verdict will be questionable,
meaning additional time and expense for a resolution of this issue
by appeal and the inevitable subsequent litigation. Therefore, we
conclude that any remedy available to the Plumbs by appeal is
inadequate, and that the denial of a speedy remedy by supervisory
control would be a denial of justice.
ISSUE 2
Does the opportunity for a defendant to reduce its liability
by asserting as an affirmative defense that plaintiffs' damages
have been caused or contributed to by unnamed third parties
pursuant to 27-1-703( 6 ) , MCA ( 1 9 9 5 ) ~ violate principles of
substantive due process as guaranteed by the federal and state
constitutions?
When the District Court granted the Mall's motion to amend its
answer and assert an affirmative defense based on its allegation
that the alleged negligence of an unnamed third party should serve
to reduce its liability, the District Court's order was tantamount
to a determination that the 1995 amendments to § 27-1-703, MCA,
satisfied this Court's constitutional concerns about the assignment
of fault to unnamed and unrepresented third persons. That
conclusion was a conclusion of law. We review conclusions of law
to determine whether they are correct. Carbon County v. Union Reserve Coal

Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In MontanaMilkControlBoardv. Rehberg (1962),141 Mont. 149, 376 P.2d

508, we borrowed the test of substantive due process set forth by

,
the U.S. Supreme Court in Nebbia v. New York (1934) 291 U.S. 502, 54

S. Ct. 505, 78 L. Ed. 940. We held that:
Similarly, we think Nebbia v. New York, supra,
properly sets forth the test we must use to determine
whether or not the Montana Milk Control Act denies due
process of law to the defendant Rehberg. In that case,
the United States Supreme Court said: "(T)he guaranty of due
process * " * demand^ only that the law shall not be unreasonable, arbitrary, or
capricious, and that the means selected shall have a real and szd~stantialrelation to
the object sought to be altained. It results that a regulation
valid for one sort of business, or in given
circumstances, may be invalid for another sort, or for
the same business under other circumstances, because the
reasonableness of each regulation depends upon the
relevant facts." (Emphasis added.) Nebbia v. New York,
291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469
(1934).
MilkControlBoard, 141 Mont. at 155, 376 P.2d at 512.
 We have used variations of that standard since. See Newvdlev.
StateDepftofFamilyServs. (1994), 267 Mont. 237, 883 P.2d 793; To~?n&Country

EstatesAss'nv. S a e (1987), 227 Mont. 489, 740 P.2d 668; R i l r .B r i g o
ltr asev ulntn

N r h r R.R.Co. (1985), 219 Mont. 254, 717 P.2d 535; L n e v. Smith
oten idr

(1981), 193 Mont. 20, 629 P.2d 1187.
However, in essence, substantive due process analysis requires
that we decide (1) whether the legislation in question is related
to a legitimate governmental concern, and (2) that the means chosen
by the Legislature to accomplish its objective are reasonably
related to the result sought to be attained. Since we have already
held in Nwil
evle that apportionment of liability among those

responsible for a person's damage is a legitimate government
concern (Ne~wille,
267 Mont. at 254, 883 P.2d at 803), our concern in

this case is whether the 1995 amendments to § 27-1-703, MCA, are
rationally related to the accomplishment of that objective. To
address that issue, we must first set forth the legislative and
decisional history which has given rise to this issue.
The history of § 27-1-703,MCA (1981), is thoroughly discussed

in Deere. That discussion is continued, as it relates to the 1987

amendment to that statute, in N w i l .
evle We will not attempt to

repeat all that is said therein, but merely offer the following
summary to put our discussion of the 1995 amendments in context.
In 1977, the Legislature adopted a right of contribution
between or among joint tort-feasors. Section 58-607.2, RCM (1947).
After recodification, that section became what is now S 27-1-703,
MCA. However, in Consolidated Freighhvays Corporation of Delaware v. Osier (1 9),
97

185 Mont . 439, 605 P.2d 1076, we held that the contribution statute
did not apply in a situation where the plaintiff was not
contributorily negligent, and that the language of the statute did
not provide for contribution from anyone other than defendants
against whom the plaintiff had recovered judgment. For that
reason, we held that contribution could not be sought, even
pursuant to third-party practice provided for in Rule 14,
M.R.Civ.P., from persons who had not been named as defendants by
the plaintiff. ConsolidatedFreighhvays, 185 Mont. at 444, 605 P.2d at

1079.
In response to the Consolidated Freighhvays decision, the

Legislature, in 1981, amended § 27-1-703, MCA (1977), to provide
for contribution, even in those situations where contributory
negligence had not been alleged, and to allow the defendant to join
unnamed joint tort-feasors for the purpose of seeking contribution.
However, we held in Deere that since the amended statute provided

for contribution "proportional to the negligence of the parties
against whom recovery is allowed," and since recovery would not be
allowed from a person who had settled with the plaintiff,
contribution could not be had from a defendant who had previously
settled with the plaintiff. Deere, 224 Mont. at 393, 730 P.2d at

402.
In response to Deere, § 27-1-703,MCA (1981) was again amended
,

by the Legislature in 1987. The 1987 amendment eliminated the
obligation of joint and several liability for defendants who are

13
found to be fifty percent or less at fault for a plaintiff's
injuries, and permitted the trier of fact to apportion fault among
not only the parties to the lawsuit, but also nonparties, including

"persons released from liability by the claimant, persons immune
from liability to the claimant, and any other persons who have a
defense against the claimant." Section 27-1-703, MCA (1987). This
so-called "nonpartyn or "empty chairf1defense was the subject of
our attention in Newville.

In N e ~ w i l l e , the plaintiffs were guardians ad litem for a minor

child who had been placed in the custody of the State Department of
Family Services, which had then placed her in a series of foster
homes, including the home of Dennis and Martha Kuipers. Edna
Goodwin was a counselor from the Department who was involved in the
child's placement with ~ e n n i sand Martha Kuipers. After the minor
child was severely abused and permanently injured by Dennis
Kuipers, both the Department and Edna Goodwin were sued Tor their
inadequate investigation and supervision of the foster home
placement. The plaintiffs settled with Edna Goodwin prior Lo trial
and proceeded to trial against Martha Kuipers and the Department.
However, the jury was provided with a verdict which allowed it to

assign a percentage of responsibility for the child's injuries to
Martha Kuipers, the Department, or Edna Goodwin. The jury did
apportion thirty-five percent of the total negligence to Edna
Goodwin.
On appeal, the plaintiffs in Newville challenged the

constitutionality of a procedure which permitted their recovery to
be reduced based on the assignment of liability to a party who had

not been present nor represented during the course of trial. We

held, first of all, that plaintiffs had standing to assert not only
their own constitutional rights, but also substantive due process
rights of the unnamed third parties because by the denial of that
party's procedural rights, the plaintiffs suffered potential
economic loss. We held that that loss could potentially result
from diminution of the plaintiffs' recovery by reducing the

percentage of the defendants I negligence. Newville, 267 Mont . at

We then discussed the 1987 amendments to § 27-1-703, MCA

(19811, and concluded that the purpose of those amendments was to
apportion responsibility for a person's damages among all those who
might have contributed as a cause to those damages in order that
those defendants named by a plaint iff could avoid paying a judgment
disproportionate to their respective degree of fault. Newville, 267

Mont. at 247-49, 883 P.2d at 799-800. After discussing the
requirements of substantive due process, we held, however, that
there were no procedural safeguards provided for in 5 27-1-703(4),
MCA (1987), to assure that the jury's apportionment of liability
was an accurate reflection of the various parties' comparative
fault. We stated:
We conclude that § 27-1-703(4), MCA (1987),
unreasonably mandates an allocation of percentages of
negligence to nonparties without any kind of procedural
safeguard. As a result, plaintiffs may not receive a
fair adjudication of the merits of their claims. It
imposes a burden upon plaintiffs to anticipate
defendants1 attempts to apportion blame up to the time of
submission of the verdict form to the jury. Such an
 apportionment is clearly unreasonable as to plaintiffs,
and can also unreasonably affect defendants and
nonparties.
Newville, 267 Mont. at 252, 883 P.2d at 802. In other words, we held

that both the plaintiffs' rights to substantive due process, and
the rights of the nonparty to whom fault was assigned, had been
violated.
In dicta which followed our conclusion, but which was not the
basis for our conclusion, we noted that in other states, where a
defendant is allowed to blame nonparties, procedural requirements
had been provided which were not provided by Montana's statute.
Those procedural requirements incl-uded ( 1 ) notice to the plaintiff
and the nonparty of the defendant's intention to assign blame to a
nonparty; (2) a limitation of time within which notice of a
nonparty claim has to be made; and (3) a requirement that it is the
defendant's burden to prove that a nonparty contributed as a cause
to the plaintiff's injuries and would be partially liable.
Based on our conclusion, we struck from that part of
§ 27-1-703(4), MCA (1987),the language which allowed assignment of
liability to "persons released from liability by the claimant,
persons immune from liability to the claimant, and any other
persons who have a defense against the claimant." Newville, 267

Mont. at 255, 883 P.2d at 803. We held, however, that since the
unconstitutional portion of § 27-1-703(4),MCA (1987), was neither
essential to the integrity of the statute, nor the purpose for its
enactment, the remaining parts of that statute were severable and
remained valid. Newville, 267 Mont. at 255-56, 883 P.2d at 804.
 In response to Newville, the 1995 Legislature enacted the

amendments and procedures which are the subject of this appeal.
Those amendments were in the form of Senate Bill 212 which
amended subparagraph (4) of § 27-1-703,MCA (1987), to provide in
part that :
(4) . . . The liability of nonparties, including
persons released from liability by the claimant and
persons immune from liability to the claimant, must also
be considered by the trier of fact, as provided in
subsection 1 6 ) .
Senate Bill 212 also added subparagraph ( 6 ) to § 27-1-703,MCA
(1987), which provides as follows:
(6) (a) In an action based on negligence, a
defendant may assert as a defense that the damages of the
claimant were caused in full or in part by a nonparty,
which may be referred to as a nonparty defense.
(b) In determining the percentage of liability
attributable to persons who are parties to the action,
the trier of fact shall consider the negligence of
nonparties, including persons released from liability by
the claimant and persons immune from liability to the
claimant, if a nonparty defense is properly asserted in
accordance with this subsection ( 6 ) . A finding of
negligence of a nonparty is not a presumptive or
conclusive finding as to that nonparty for purposes of a
prior or subsequent action involving that nonparty.
(c) The burden of proof as to a nonparty's
liability is on the defendant or defendants who
affirmatively plead the nonparty defense, but this
subsection 6 does not relieve the claimant of the
burden of proving that negligence on the part of the
defendant or defendants contributed as a proximate cause
to the injury of the claimant or alter other proof
requirements.
(d) A nonparty defense must be affirmatively
pleaded as a part of the answer. A defendant who gains
actual knowledge of a nonparty defense after the filing
of that defendant's answer may plead the defense with
reasonable promptness, as determined by the trial court,
in a manner that is consistent with:
(i) giving the defendant a reasonable opportunity
to discover the existence of a nonparty defense;
(ii) giving the claimant a reasonable opportunity
to defend against a nonparty defense; and
 (iii) giving the claimant a reasonable opportunity,
if appropriate, to add the nonparty as an additional
defendant to the action before the expiration of the
period of limitation applicable to the claim. However,
this subsection (iii) does not extend the period of
limitation or revive the action if the period of
limitation has expired.
(e) If a defendant asserts a nonparty defense, the
defendant shall notify each nonparty who the defendant
alleges caused the claimant's injuries, in whole or in
part. Notification must be made by mailing the
defendant's answer to each nonparty at the nonparty's
last-known address by certified mail, return receipt
requested.
In other words, Senate Bill 212, which proposed amendments to
§ 27-1-703,MCA (1987),revived the nonparty defense which had been
found unconstitutional in Newville, but provided several procedural

requirements which had not been present in the 1987 version of the
statute. They include: (1) the requirement that the burden of
proving a nonparty's liability is on the defendant; (2) a
requirement that the nonparty defense be affirmatively pled; and
( 3 ) a requirement that a nonparty be notified that he or she is

being blamed for the plaintiff's injuries.
The legislative history of Senate Bill 212 indicates that the
purpose for which its proponents sought its enactment was to assure
that liability for an injured person's damages was fairly
apportioned among those who are at fault, and that no party be
liable for a disproportionate amount of damages simply because of
that party's superior financial ability to satisfy the judgment.
Hearinq on SB 212 before the Senate Comrn. on Judiciary (Feb. 14,
1995) (statement of John Alke, Montana Liability Coalition).
However, conspicuous by its absence from the 1995 amendments
was any opportunity for an unnamed third person to appear and
defend himself or herself. By that omission, the proponents of
Senate Bill 212 ignored the central point of the Newville decision

where we stated:
No attorney represented Goodwin's interests at trial and
as a result, it is possible that the application of
percentage of negligence was higher than would have been
appropriate had the facts as to her case been presented
by her own counsel.
Neu'ville, 267 Mont. at 254, 883 P.2d at 803.

On appeal from the order of the District Court, the Plumbs,
and the amicicuriae who have supported their argument, contend that

if fairness is the purpose of limiting a defendant's liability to
his, her, or its percentage of negligence, then the solution
provided for by Senate Bill 212 is not rationally related to that
objective because, in spite of the additional procedural
requirements now added, a jury's apportionment of liability to
someone who is not a party to the lawsuit, has not appeared, and
has not been represented, will not be an accurate reflection of the
true degree of that person's fault.
The Mall, and the amicicuriae who have appeared on its behalf,

contend that the 1995 amendments to 5 27-1-703,MCA (1987),balance
the rights of plaintiffs and defendants by providing a procedure
for allocating liability based on the degree of a party's fault.
They contend that without the "nonparty" process provided for by
the 1995 amendments, defendants could not reduce their liability
based on the true degree of a settling tort-feasor's fault, and
that the amendments addressed all of the procedural safeguards
discussed in Newville.
 We conclude that, while the State has a legitimate interest in
enacting a scheme of liability which apportions liability for
damages based on the degree of a party's fault for another person's
injuries, the nonparty defense provided for by the 1995 amendments
to 5 27-1-703, MCA (1987), is not rationally related to that
legitimate governmental objective, but is more likely to accomplish
the opposite result. We arrive at that conclusion for the

following reasons:
1. The 1995 amendments to § 27-1-703,MCA (l987),permit the
Mall to assign liability for the Plumbs' damages to Dr. Timothy
Adams without affording Dr. Adams an opportunity to defend himself.
As a result, Dr. Adams' professional reputation and economic
interests are jeopardized without an opportunity to personally
appear on his own behalf, cross-examine those witnesses who might
criticize the care he provided, or offer evidence in support of his
course of treatment. The percentage of liability assigned to Dr.
Adams following this kind of process would not be a reliable or
accurate apportionment of liability and cannot, therefore, be
rationally related to the objectives for which Senate Bill 212's
supporters contend that the 1995 amendments were enacted.
2. The Plumbs' right to recover that amount of damages from
the defendant for which the defendant is proportionally
responsible, and all of their damages in the event that the
defendant is fifty-one percent or more responsible, is jeopardized
by the potential this procedure affords for disproportionate
assignment of liability to an unnamed, unrepresented, and
nonparticipating third person. The Plumbs are entitled, pursuant
to § 27-1-703, MCA (l995),to recover all of their damages from the
Mall in the event the Mall is found to be fifty-one percent or more
at fault, and the proportionate amount of damages for which the
Mall is at fault in the event the jury finds it to be less than
fifty-one percent responsible. The greater the degree of fault
that is assigned to unnamed nonparties, the greater the reduction
in the Plumbs1 recovery. Yet, without the opportunity to appear
and defend themselves, nonparties are likely to be assigned a
disproportionate share of liability, and the Plumbsf recovery is
likely to be reduced beyond the degree to which a third party would
be found at fault if he, she, or it actually had an opportunity to
defend themselves.
3. As noted in Newville, 267 Mont. at 252, 883 P.2d at 802,

"there is no reasonable basis for requiring plaintiffs to examine
jury instructions, marshal evidence, make objections, argue the
case, and examine witnesses from the standpoint of the
unrepresented parties,ffand requiring the plaintiff's attorney to
serve in s u c h a dual capacity i s actually antithetical t o h i s or
her primary obligation, which is to represent the plaintiff by
proving the plaintiff's case.
4. To the extent that a party defendant is interested in a
true and accurate apportionment of liability, our rules of

third-party practice and § 27-1-703 4 ) , MCA (1995), already provide
(

the means by which contribution can be sought from those who have
been unnamed by the plaintiff but who may have contributed, in
fact, to the plaintiff's injuries and damages. Rule 14(a),
M.R.Civ.P., provides that a defendant may join, as a third-party
defendant, anyone who may be responsible for any part of the
plaintiff ' s claim. Section 27-1-703( 4 ) , MCA (l995), permits any
party against whom a claim is asserted for negligence resulting in
death or injury, to join any other party who may have contributed
as a cause of the plaintiff's injury for purposes of contribution.
Rule 20(a), M.R.Civ.P., has been identified as the procedural

mechanism for that joinder. We conclude that apportionment of
liability pursuant to these procedures would be rationally related
to the Legislature's objective of assigning liability based on the
degree of a party's fault for another party's damages. A person
joined as a result of these procedures would be afforded the
opportunity to participate in discovery, cross-examine those
witnesses who blame him or her, and present evidence on his or her
own behalf. Following these opportunities, which are compelled by
traditional notions of fairness, any apportionment of liability to
that third party is much more likely to bear some relationship to

reality.
The one exception to the third-party practice alternative
referred to in the preceding paragraph arises in the situation
where a settling tort-feasor may be partially liable for an injured
person's damages. As noted, based on language in § 27-1-703, MCA

(1981), which allows "cont:ribution . . . proportional to the
negligence of the parties against whom recovery is allowed,"
settling tort-feasors may not be named as third-party defendants
for the purpose of contribution. However, as also noted in Deere,

any recovery by the plaintiff is subject to a dollar-for-dollar
offset by any amount paid by the settling tort-feasor. While it is
true that, in some cases, that amount of offset may be less than
the settling tort-feasor's proportionate share of liability, the
converse is equally true. We also note that, in spite of our
decision in Deere, the language in § 27-1-703,MCA 11981), is still

present in 5 27-1-703( 4 ) , MCA (1995).
For these reasons, we conclude that that part of § 27-1-703,
MCA (1995), which allows apportionment of liability to parties who
are not named in the lawsuit and who do not have an opportunity to
appear and defend themselves (specifically, the quoted portion of
subparagraph (4) and all of subparagraph (6)'), is not rationally

'(4) . . . The liability of nonparties, including persons
released from liability by the claimant and persons immune from
liability to the claimant, must also be considered by the trier of
fact, as provided in subsection (6).
. . . .
(6) (a) In an action based on negligence, a defendant may
assert as a defense that the damages of the claimant were caused in
full or in part by a nonparty, which may be referred to as a
nonparty defense.
(b) In determining the percentage of liability attributable
to persons who are parties to the action, the trier of fact shall
consider the negligence of nonparties, including persons released
from liability by the claimant and persons immune from liability to
the claimant, if a nonparty defense is properly asserted in
accordance with this subsection (6). A finding of negligence of a
nonparty is not a presumptive or conclusive finding as to that
nonparty for purposes of a prior or subsequent action involving
that nonparty.
( c ) The burden of proof as to a nonparty's liability is on
the defendant or defendants who affirmatively plead the nonparty
defense, but this subsection (6) does not relieve the claimant of
the burden of proving that negligence on the part of the defendant
or defendants contributed as a proximate cause to the injury of the
claimant or alter other proof requirements.
related to the legitimate government objective of fairly
apportioning liability among parties based on the degree to which
their negligence contributes to another person's injuries; and
therefore, that the offending portions of 5 27-1-703, MCA (1995),
violate the right of substantive due process guaranteed to Roberta
and Martin Plumb and Dr. Timothy Adams by the Fourteenth Amendment
to the United States Constitution, and Article 11, Section 17, of
the Montana Constitution. Our conclusion that the offending
statutory provisions violate the right to substantive due process
provided for in the Montana Constitution is independent of and
separate from our analysis of those rights provided for by the
United States Constitution.
For those reasons set forth in Newville v. Slate Department of Fnmily

Services (1994), 2 6 7 Mont. 237, 883 P.2d 793, we also conclude that

those portions of 5 27-1-703,MCA (1995), which we find offensive

(d) A nonparty defense must be affirmatively pleaded as a
part of the answer. A defendant who gains actual knowledge of a
nonparty defense after the filing of that defendant's answer may
plead the defense with reasonable promptness, as determined by the
trial court, in a manner that is consistent with:
(i) giving the defendant a reasonable opportunity to discover
the existence of a nonparty defense;
(ii) giving the claimant a reasonable opportunity to defend
against a nonparty defense; and
(iii) giving the claimant a reasonable opportunity, if
appropriate, to add the nonparty as an additional defendant to the
action before the expiration of the period of limitation applicable
to the claim. However, this subsection (iii) does not extend the
period of limitation or revive the action if the period of
limitation has expired.
(e) If a defendant asserts a nonparty defense, the defendant
shall notify each nonparty who the defendant alleges caused the
claimant's injuries, in whole or in part. Notification must be
made by mailing the defendant's answer to each nonparty at the
nonparty's last-known address by certified mail, return receipt
requested.
to the right to substantive due process are not necessary to the
integrity of the remainder of that statute, were not an inducement
to the remainder of the statute's enactment, and are severable from
the valid portions of § 27-1-703, MCA (1995). We further conclude

that the remainder of the statute is capable of being implemented
in accordance with the Legislature's intent.
Based on the foregoing opinion, the District Court's order
permitting Southgate Mall Associates to amend their answer and set
forth a seventh affirmative defense which assigned liability to
unnamed persons is reversed, and this case is remanded to the
District Court for further proceedings consistent with this
opinion.

We concur:

Chief Justice
Chief Justice J. A. Turnage respectfully concurs and dissents.
I do not disagree with the result reached by the majority in
this case. However, I dissent to mu'zh that has been said in the
majority opinion which is overbroad a.nd entirely unnecessary.
The first issue in this case is whether the facts and issues
presented are appropriate for resolution by supervisory control.
In State ex rel. Racicot v. District Court (1990), 244 Mont.
521, 798 P.2d 1004, this Court held that assumption of original
jurisdiction by supervisory control is proper when three
circumstances exist:
(1) constitutional issues of major statewide
importance are involved;
(2) the case involves purely legal questions of
statutory and constitutional construction; and
(3) urgency and emergency factors exist, making the
normal appeal process inadequate.
Racicot, 244 Mont. at 524, 798 P.2d at 1006 (emphasis added).
This three-part test has been followed in our subsequent
decisions of Craig v. District Court (l993), 262 Mont. 201, 864
P.2d 791; State ex rel. Nelson v. District Court (1993), 262 Mont.
70, 863 P.2d 1027; and Associated PreE:sv. State (1991), 250 Mont.
299, 820 P.2d 421.
The majority in this case conclc.des that the issues in this
case satisfy all three of the three-part requirements of the
Racicot decision and the cases that followed that decision. The
majority, however, goes on the conclude that to the extent that the
Racicot decision requires that all three elements be satisfied
before this Court will accept supervisory control, it is necessary
26
to reverse the Racicot decision and the subsequent decisions that
have applied the test as set forth in Racicot.
To the extent that the majority opinion reverses this prior
precedent, I believe the majority opinion is wrong.
Under this new approach to the granting of supervisory control
it is entirely possible that all a petitioner need allege is that
the issues involved in the petition address constitutional issues
of major statewide importance the case involves a purely legal
question of statutory or constitutional construction.
This part of the majority opinion is an open invitation for
petitioners to come to this Court and point to this case as
precedent asking this Court to intervene and decide the case for
them without the necessity of proceeding with a normal appeal
process.
This short-cut to questionable justice is inappropriate and
undoubtedly will bring to the Supreme Court a great number of
extraordinary petitions for supervisory control. I therefore
respectfully dissent to the foregoing portion of the majority
opinion.
I further dissent to a portion of what has been stated in the
majority opinion concerning the second issue in this case, relating
,
to the constitutionality of that portion of S 27-1-703(6) MCA
(1995) relating to damages caused or contributed to by unnamed
third parties.
I do not disagree with the ultimate result of the Court's
decision in its conclusions on that issue; however, I believe that
the Court's conclusion is far too overbroad and unnecessary.
I agree with that portion of the majority opinion which
states :
TO the extent that a party defendant is interested
in a true and accurate apportionment of liability, our
rules of third-party practice and 5 27-1-703(4), MCA
(1995), already provide the means by which contribution
can be sought from those who have been unnamed by the
plaintiff but who may have contributed, in fact, to the
plaintiff's injuries and damages. Rule 14 (a),
M.R.Civ.P., provides that a defendant may join, as a
third-party defendant, anyone who may be responsible for
any part of the plaintiff's claim. Section 27-1-703( 4 ) ,
MCA (1995), permits any party against whom a claim is
asserted for negligence resulting in death or injury, to
join any other party who may have contributed as a cause
of the plaintiff's injury for purposes of contribution.
Rule 20(a), M.R.Civ.P., has been identified as the
procedural mechanism for that joinder. We conclude that
apportionment of liability pursuant to these procedures
would be rationally related to the Legislature's
objective of assigning liability based on the degree of
a party's fault for another party's damages. A person
joined as a result of these procedures would be afforded
the opportunity to participate in discovery, cross-
examine those witnesses who blame him or her, and present
evidence on his or her own behalf. Following these
opportunities, which are compelled by traditional notions
of fairness, any apportionment of liability to that third
party is much more likely to bear some relationship to
reality.
Having set forth this rational approach to a method of
apportionment of liability as a legislative objective in assigning
liability based on the degree of a party's fault for another
party's damages, the majority opinion at that point jumps off the
track and states: "The one exception to the third-party practice
alternative referred to in the preceding paragraph arises in the
situation where a settling tortfeasor may be partially liable for
an injured person's damages." The majority opinion relies on State
ex rel. Deere & Co. v. District Court (1986), 224 Mont. 384, 730
P.2d 396, to support this exception to the third-party practice

alternative. This reliance is misplaced.
In Deere this Court stated that "the principal issue we decide
here is that a joint tortfeasor who settles with the claimant

before judgment on the claim is entered in a district court is not

subject to claims for contribution . . . from the nonsettling joint
tortfeasors. Deere, 730 P . 2 d at 3 9 8 .
The majority opinion in this case states that "settling
tortfeasors may not be named as third party defendants for the
purposes of contribution."
Deere is based upon § 27-1-703, MCA (l98l), relating to
contribution. Deere does not address the question of apportionment
of liability. This Court in Deere stated with relation to the

question of contribution, which again I repeat is not an issue in
this case, the following:
In reality, our decision on this issue is hinged
upon our earlier interpretation of the statute herein
that no right of contribution exists from a settling
tortfeasor. It would make no sense to keep a settling
tortfeasor in the action as an additional defendant or a
third party defendant to determine its proportional fault
for plaintiff ' s injuries, when the nonsettling defendants
have no right of contribution from the settling
defendant. Contribution under § 27-1-703 is the
obligation of "parties against whom recovery is allowed.

Deere, 730 P.2d at 404.
Contribution and apportionment of liability are two separate
and distinct legal concepts. Deere does not support carving out an
exception to the third-party practice alternative, and, in doing
so, I respectfully submit that the majority opinion is wrong.
Certainly the legislature has a legitimate interest in
29