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Mack Trucks3/27/2003
firmed in all respects except as to the allocation of liability as between Mack and Cummins. The judgment is reversed and remanded to the trial court for reformation as indicated herein.
. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
PITTMAN, C.J., SMITH, P.J., WALLER AND CARLSON, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND EASLEY, JJ.
McRAE, PRESIDING JUSTICE, DISSENTING:
. I dissent to the majority's finding that the $330,000 settlement between Tackett and Freightliner should be deducted from the total verdict of $1.8 million and to the majority's allocation of apportionment between Mack and Cummins.
. The majority finds that Tackett's $330,000 settlement with Freightliner should be deducted from the total verdict of $1.8 million. Freightliner was not apportioned any fault; therefore the settlement between Freightliner and Tackett should not be a relevant factor in computing apportionment of damages. Nowhere in Miss. Code Ann. § 85-5-7 (1999) does the Legislature address the deduction of settlements from jury verdicts when a defendant has not been apportioned fault by a jury. By deducting the settlement from the judgment, the majority is essentially holding Freightliner at fault with no justification or jury finding of apportionment.
. As the majority correctly found, Wilburn Oil, an immune tortfeasor, cannot be apportioned liability for the purposes of joint and several liability. With that being said, the majority seems to throw to the wind the jury's 39% finding of fault of Wilburn Oil. Where did this figure disappear to in the majority's equations? Either this case needs to be remanded for a jury determination without the apportionment of fault of Wilburn Oil or this Court needs to allocate the 39% to Mack and Cummins according to their 3 to 1 fault ratio, as found by the jury.
The math would look like this:
$1,800,000 Verdict
($1,020,000) Murphree's 60% Fault
$780,000 Remaining Verdict
$390,000 50% according to § 85-5-7(2)
Mack
3/4% jury apportionment
3/4% of 39%=29.31%
29.31% + 3/4%=30.06% Total
30.06% of $780,000 (remaining verdict)=$244,486
Individually
Cummins
1/4% jury apportionment
1/4% of 39%=9.77%
9.77% + 1/4%=10.02%
10.02% of $780,000 (remaining verdict)=$78,156
Individually
$390,000 50% according to § 85-5-7(2)
($244,486)
($78,156)
$6,376 jointly and severally liable to achieve 50% under § 85-5-7(2)
. For these reasons, I respectfully dissent.
DIAZ AND EASLEY, JJ., JOIN THIS OPINION.
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