597 S.W.3d 114
Ark. Ct. App.2020Background
- Kelley’s sued Asphalt Producers, LLC (API) and subcontractor Richard Baughn Construction (RBC) for negligence arising from a highway construction contract.
- The court-ordered mediation produced a confidential settlement agreement between Kelley’s and API.
- RBC had filed a cross-claim against API seeking contribution and apportionment of fault and served discovery seeking the settlement’s terms and amount.
- The circuit court ordered production (subject to a protective order) after an in camera review, but declined to rule on admissibility.
- On earlier interlocutory review this court remanded for findings on whether the parties are joint tortfeasors and when contribution rights attach. On remand the circuit court found joint tortfeasor status and that a right of contribution exists, and again ordered disclosure.
- This appeal: the Arkansas Court of Appeals reverses, holding disclosure of the mediation settlement is premature and that the circuit court erred in finding joint-tortfeasor status and that contribution existed at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discoverability of confidential mediation settlement | §16‑7‑206(b) makes any record/writing from dispute resolution confidential and not subject to production | RBC needs the settlement terms to prepare its defense and to seek contribution/settlement credit under UCATA/CJRA | Reversed: settlement not discoverable now; disclosure premature and confidentiality protects the document absent a proper showing tied to when contribution rights attach |
| Timing/accrual of right of contribution | Contribution is derivative and does not accrue until a tortfeasor pays more than its share | Contribution can be asserted pre-judgment (third-party practice) and RBC filed a cross-claim seeking it | Court held the right had not accrued; circuit court erred in finding contribution exists at this stage |
| Joint‑tortfeasor status before trial | Joint‑tortfeasor status (“may” be jointly/severally liable) is a fact/jury question and cannot be decided now | API/RBC are joint tortfeasors because general contractor controlled the subcontractor | Court reversed: finding joint‑tortfeasor status premature; requires evidence and jury determination |
| Effect of Civil Justice Reform Act (CJRA) on contribution/apportionment | CJRA might limit prior joint-and-several consequences and affects allocation arguments | UCATA/rights of apportionment and contribution persist post‑CJRA | Court: CJRA did not eliminate apportionment/contribution rights; apportionment survives though joint liability consequences changed |
Key Cases Cited
- Wynne‑Ark., Inc. v. Richard Baughn Constr., 545 S.W.3d 771 (Ark. Ct. App. 2017) (prior interlocutory opinion remanding for findings on joint‑tortfeasor status and contribution timing)
- J‑McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 436 S.W.3d 458 (Ark. 2014) (right of contribution is derivative and accrues upon payment of more than pro rata share)
- Heinemann v. Hallum, 232 S.W.3d 420 (Ark. 2006) (a contribution cause of action may be filed before judgment, but accrual timing and limitations questions remain)
- Corn v. Farmers Ins. Co., 430 S.W.3d 655 (Ark. 2013) (discusses modification of joint-and-several liability under the CJRA and its effect on apportionment)