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Porter Hayden Co. v. Bullinger5/15/1998
eater of (1) the consideration paid by B & W for its release or (2) a pro rata share computed by including B & W among the set of adjudicated joint tort-feasors.
Had PH sought to accomplish that result, absent B & W's discovery default, PH would have to have introduced evidence against B & W and sought a jury determination, all of which Grimshaw would have had an opportunity to oppose. But because of B & W's failure to give discovery, we do not know what evidence PH might have been able to present.
The holding of the majority treats B & W's default as an adjudication that satisfies the condition in the release. Presumably the cost to B & W of a release under which Grimshaw unconditionally agreed to treat B & W as a joint tort-feasor would have been greater than the consideration actually paid. Thus, the majority opinion gives B & W more than it was willing to buy and bases that result on conduct within B & W's control. The majority opinion allows B & W to ignore PH's third-party claim and the associated discovery and thereby to alter Grimshaw's contractual rights.
Although the holding proposed above would resolve in favor of Grimshaw the issue of whether Grimshaw's recovery is to be reduced further, one may fairly ask, "What is the significance of the default judgment?" I would interpret the order imposing the discovery sanction to mean that B & W is liable to PH for contribution. The amount of B & W's exposure to PH may be the difference between PH's pro rata share of the common liability, determined by a set of joint tort-feasors that does not include B & W, and PH's pro rata share of the common liability, determined by a set of joint tort-feasors that includes B & W. Further, PH, by suggesting the manner in which joint tort-feasor status be submitted to the jury, may have waived any right to have a monetary judgment entered against B & W. These and related issues, however, are not before this Court at this time.
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