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Newville v. State8/29/1994
ed as defendants; and that 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 unrepresented parties, particularly when they do not know until the latter part of the trial that defendants will seek to place blame on unrepresented persons. These procedural problems form the bases for our holding that § 27-1-703, MCA (1987), in part violates substantive due process.
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 defendants' 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.
We note that other states have enacted tort legislation allowing the inclusion of nonparties. Colorado, as an example, allows the inclusion of nonparties when apportioning fault, but only when notice has been given by the defendant within 90 days of commencement of the action. See Colo. Rev. Stat. § 13-21-111.5 (1987). Indiana requires a defendant to assert a nonparty defense and to bear the burden of proof of that defense if the defense is asserted as part of an answer filed more than 45 days prior to the running of the statute of limitations on a claim against a nonparty. See Ind. Code § 34-4-33-10 (1985). Like Indiana, Kansas places the burden of bringing in other parties, including those who have settled, on the defendant. Glenn v. Fleming (Kan. 1987), 732 P.2d 750, 756. Although Kansas has abolished joint and several liability altogether, it does not allow apportionment of percentage of total damages to any person who is not a party. See Kan. Stat. Ann. § 60-258a(d) (1977). The establishment of the nonparty defense in Indiana has brought many questions about the definition of "nonparty" and the procedural mechanisms for bringing in additional defendants. Schwartz, Comparative Negligence § 16.5 (2d ed. 1986 & Supp. 1993).
Numerous other comparative negligence statutes — although rarely similar to an act of another state — include some type of procedural safeguard for plaintiffs, defendants and nonparties. Ohio's tort reform law, for example, limits allocation of negligence to parties before the court. Schwartz, Comparative Negligence § 16.5 (2d ed. Supp. 1993); Ohio Rev. Code Ann. § 2315.19(B)(4) (1991). New Mexico allows settling defendants to be called as witnesses and allows discovery regarding such witnesses as if they remained in the action. Wilson v. Gillis (N.M. Ct.App. 1986), 731 P.2d 955, 958.
We have noted some of the procedural safeguards provided by other jurisdictions to emphasize that Montana's statute provides none of these protections. Our review of the comparative negligence statutes from other jurisdictions does not provide much help in the present case, however. Nearly every state has a unique statute with nuances which make its case law interpreting the statutes of little help to other courts.
We have previously mentioned that SB 51 was patterned after Washington state's statute. Yet SB 51 is substantially different from the 1986 enactment of Wash. Rev. Code Ann. 4.22.070, which is also set forth in the appendix to this opinion. A striking difference is that the Washington statute preserved joint and several liability for innocent plaintiffs. In contrast, § 27-1-703, MCA (1987), treats all plaintiffs alike
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