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Brockie v. Omo Construction12/13/1994
y aspect is that Newville determined there could be no allocation of negligence to non-parties.
In the present case, all of the parties and the District Court as well, concluded that § 27-1-703, MCA (1987), did allow an allocation of negligence to a non-party driver. As a result, the verdict form prepared by the plaintiff and accepted by the defendant and given by the District Court, and used by the jury, resulted in a jury finding that the non-party driver was 65 percent negligent and the defendant Omo was 35 percent negligent. At that point, the understanding of the parties and of the District Court was that the $170,000 in total damages would be reduced by the 65 percent negligence which was attributable to the non-party driver. As a result of the interpretation in the majority opinion, this understanding is disregarded and the $170,000 is reinstated in full. On its face, this demonstrates a manifest injustice to the defendant.
While the majority opinion does not explain the basis for all of its decision, I assume that it is relying on State ex rel. Deere and Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396, which concluded that the 1985 version of § 27-1-703, MCA, excluded a party against whom recovery was not allowed — and having concluded that recovery was not allowed against a settling defendant, held that there was no right of contribution as to such settling defendant. After Deere was issued, § 27-1-703, MCA, was amended substantially in 1987. This 1987 amendment included the statement that for the determination of the percentage of liability attributable to each party whose action contributed to the injury , the trier of fact should consider the negligence of a number of stated persons, and specifically included persons released from liability by the claimant and persons immune from liability to the claimant. The amended statute required the trier of fact to apportion the percentage of negligence to all such persons. I emphasize the distinction between allowing an allocation of negligence to persons released from liability, and allowing contribution from such persons released from liability. While this view of the statute has not yet been considered by this Court — the contention could be made under the 1987 statute that there can be an allocation of negligence to a third-party defendant who has been released from liability even though there could be no right of contribution from that third-party defendant who has already settled with the plaintiff. As an example, in the present case, if the driver of the vehicle who had settled with the plaintiff had been named as a third-party defendant, and if the jury verdict had been the same as in the present case then the result could have been precisely the same as in the present case — that being an award of $170,000 for all of the damages of the plaintiff, but with the defendant Omo only responsible for 35 percent of the same under the revised statute.
I conclude there is a manifest injustice in the application of Newville to the defendant in the manner which has been accomplished in the majority opinion. I conclude that Newville is not authority for the application made in the majority opinion because it did not decide whether a party settling with the claimant still could be named as third-party defendant to whom negligence could be allocated.
I dissent from the majority opinion.
CHIEF JUSTICE TURNAGE joins in the foregoing dissent.
JUSTICE GRAY joins in the foregoing dissent.
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