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Hagemann v. NJS Engineering8/8/2001
definition of "liability" to defeat any attempt at contribution or indemnity. In so doing, the majority opinion relies on Burmeister v. Youngstrom, a guest statute case which indicated that when there is no joint liability there is no contribution. 139 NW2d 226, 231. The Minnesota court in Lambertson rejected this reasoning and overruled their prior cases indicating there was no recovery because there was no "common liability." Lambertson, 257 NW2d at 688. We should do the same. The definition of liability or joint liability has many connotations, of which one certainly has to be responsibility for wrongs. SDCL 20-9-1.
While there is no common liability to the employee in tort, both the employer and the third party are nonetheless liable to the employee for his injuries; the employer through the fixed no-fault workers' compensation system and the third party through the variable recovery available in common law tort action. Contribution is a flexible, equitable remedy designed to accomplish a fair allocation of loss among parties. Such a remedy should be utilized to achieve fairness on particular facts, unfettered by outworn technical concepts like common liability. Lambertson, 257 NW2d at 688.
[ .] In recognizing the need to create a "fair allocation of loss" the Lambertson court limited the right of contribution and indemnity by a third party against the employer/employee to the total worker 's compensation exposure. Id. at 689. Other courts have done the same, the effect of which is to preserve the compensation act, yet not to force third party's to bear the brunt of a loss for which they are not responsible. "No doubt, if open-ended contribution over against employer was permitted the social and economic policies underlying the compensation scheme would be subverted." Larson, Worker 's Compensation: Third Party Actions, ยง 121.03 at 121-27. In effect, the limitation of exposure, espoused by the Lambertson court and embraced in other jurisdictions, would require at most that the employer pay the maximum under worker's compensation and the third party pay the amount over and above the worker's compensation maximum for which it is liable, after taking into account any contributory negligence. Through this apportionment, the third party avoids overexposure and the employer is limited to its rightful exposure. Id. at 121-30, 31 (discussing the Minnesota rule and the reduction of compensation from third party recovery).
[ .] The majority opinion result is inequitable and totally unfair both now and for the indefinite future. For example, Simms was allowed to intervene in this action as a plaintiff against County. Certainly, his own negligence will be used to offset any recovery he may seek from County. Yet, remarkably, the majority opinion expects the taxpayers of the County to absorb his negligence as it relates to the death of Hagemann. This would be totally inconsistent and unfair. A commonsense interpretation would correctly place the worker 's compensation statutes in the worker 's compensation context and place the joint tortfeaser statutes in the joint tortfeaser context. I vote for a commonsense interpretation of these separate, independent chapters.
[ .] Therefore, I dissent.
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