Floyd v. Carlisle Const. Co., Inc.

FLOYD, Movant, William

CARLISLE CONSTRUCTION

COMPANY, INC. and Steven Wood, Respondents.

J.

No. 86-SC-862-DG.

Supreme Court of Kentucky.

Oct. Sweeney,

Thomas A. Lange, Quill & Powers, Newport, for movant. Arnzen, Mark G. Dane Deering, E. Cov- ington, respondents.

VANCE, Justice. question

The is whether a defendant tort claim is entitled to an instruction which would jury apportion allow the plaintiffs damage against tort- feasor with whom the has settled but who was not named as party defend- ant and whom the defend- ant did not name as a third-party defend- ant. movant, Floyd, William driven an automobile

in a collision between grader and a road by Steven Whittamore Stephen Wood and owned operated by Floyd set- Company. Carlisle Construction insti- Whittamore tled Con- against Wood and Carlisle tuted suit nev- Company. Whittamore was struction lawsuit, either party to er named as a plaintiff Floyd’s com- as a defendant by ei- third-party plaint or as or the Carlisle Construction ther Wood Company. an in- requested appellees

At enable struction that would appellees between the apportion the fault Whittamore and Whittamore litigation. trial was not a requested instruction. court denied Floyd a verdict for returned $59,601.04. The Court of reversed and re- solely upon manded new question proper apportionment liability.

431 Jordan, implicated her liability by jury who hus- against the apportionment third-party approved band as a defendant. among joint tortfeasors was Coleman, Ky., 455 S.W.2d 59 Orr v. The court held that was In Anna Lee Coleman was severe- that case proper Mr. Nix was not named because ly injured in a collision between automo- with Jordan suit joint-defendant as a by and William Waterer bile driven John Nix. It was stated: filed Mrs. Inc., Rental, by Southeastern Car owned good make “Though might it otherwise Avis) (hereinafter a called in which she was apportion- apply principle of sense to the passenger, and an automobile driven joint among ment tortfeasors without Ray Mary by Bobby Louise Orr and owned authority for v. ception, the Cole- a for brought Orr. Mrs. Coleman man, Ky., 455 derives S.W.2d Waterer, against Avis the damages and (KRS 454.040) from a which can- to she Orrs. Before the case went liberally. be construed $19,000, with Waterer and Avis for settled permits apportion- Literally, the statute Orrs, reserving rights against her the ‘defendants,’ against against her and whereupon claim Waterer necessarily joint defendants. means Or- by agreed Avis order. was dismissed defendant, only as val Jordan was a but those circumstances we held that Under third-party complainants, the and not to and Avis had been Waterer original plaintiff. In Orr v. as longer parties no dismissed were Coleman, supra, settling tortfeasor litigation, necessary jury it was no in the sense longer was damage determine the total sustained lawsuit, it being party to the but liability apportion be- policy public was our Orr’s, as tween the who remained encouraging justified settlements of our suit, and Walter and Avis who were j5j.0j0 construing to include KRS longer parties. We said: who joint as ‘defendants’ tortfeasors practical answer is that would have been probably “The defendants required they bought total had should be assess the fact peace. Certainly damages amount of the claimant’s their fix proportionate share of the nonset- attests the active assertion of itself claim, contrast, case, tling liability tortfeasor’s in this basis whereas that the had not his contribution to the causation. The it is obvious against her hus- asserted claim may compute trial court then band, (Em- third-party be entered defendant. ours.) phasis tortfeasor, nonsettling fixing thus his (and incidentally liability ultimate obviat- at 763. Id. ing any question necessity of or for con- implication that set- We here the note tribution).” attests the active assertion tlement itself Id. at 61. was suffi- a claim which Orr v. Coleman nonparty settlor as a cient to constitute the Coleman, supra, premised was Orr v. premise he would defendant under the provided that in K.R.S. 454.040 which except for the a defendant fact have been trespass assess actions bought peace. that he had joint several the de- permit- was Reed, Ky., 538 S.W.2d 306 In Daulton v. fendants. been, had at the ted one who (1976), litigation was instituted longer time was no defendant. as to tortfeasors but was dismissed joint trial. held that of them before one Jordan, Ky., v. 532 S.W.2d Nix required: (1975), Nix in a collision Mrs. v. “In the recent case Nix a car driven her husband between point- it was and a passenger was a vehicle which she v. ed out of Orr Cole- operated by She made no claim Jordan. man, (1970), applies instituted suit her husband but when there has been an active assertion It follows Hilen one who would be a Company Prudential Insurance Life Moody defendant but for that he that when there are tort- the fact feasors the of either of them is settled the claim. The same rationale by the extent limited of his applies situation, fault.1 this in which the asserted claim the Reeds Phil- be apportion It must noted that the lips dropped, was later whatever of the of a fault to a tortfeasor have been the reason.” a who is not to this action not does at 308. impose any liability upon Id. him or warrant a judgment him. apportionment The The basis holdings for these is the active percentage determines the total of the joint of a claim against assertion tort- damages respon actually for he was feasors. there is an of active assertion for which bought peace. sible and he against joint tortfeasors, claim and the evi- appellees responsible are re dence is sufficient to submit issue of maining percentage damages, of the and each, liability to an instruc- them limited will be required is whether or each of the to that amount. party-defendant is tortfeasors at the time question Because was raised in of trial. concerning trial court the amount of actually tortfeasor who is A damages jury, fixed Court pur defendant is construed to be one Appeals correctly ruled is no that there poses has settled need for retrial insofar as the the claim him or if he was named damages concerned. is complaint plaintiffs as a defendant is The decision the Court of subsequent complaint even affirmed. ly dismissed as to him. STEPHENS, C.J., GANT, and requiring apportionment among The rule VANCE, JJ., STEPHENSON longer exclusively tortfeasors no rests concur. Apportionment K.R.S. 454.040. also consequence follows as a natural of our J., VANCE, additionally by concurs Hays, Ky., decision Hilen v. 673 S.W.2d separate opinion. case, that we overturned a WINTERSHEIMER, J., concurs long-standing contributory neg- rule of that separate opinion. ligence recovery was an absolute bar LEIBSON, J., by separate dissents adopted negli- rule of LAMBERT, J., opinion joins. in which gence. doing Our stated reason for so was simple required, “liability fairness Justice, VANCE, concurring. any particular injury proportion in direct opinion is of the House Hilen, supra, p. fault.” at Assembly, Bill 551 enacted General concept implemented have this here, at issue is not after the accident the extent is limited controlling agree in this case. I tent of fault Prudential Insurance House Bill 551 does not have retroactive Life Moody, Ky., effect, Co. S.W.2d inappropri- I think that it is not held which we that where the defendants point out that in the future House ate to fault, equally at compel are Bill the result we reach 551 will them statute of requires one of is barred The statute this case. limitations, percentage the other cannot of the fault determine the total parties damages. to each claim that liable more than of all the 50% third-party complaint of the rule in Hilen v. majority in as defendants 1. Because (1984) 673 S.W.2d 713 would overrule court would now hold that this to the extent that it otherwise. holds brought required as to tortfeasors Justice, WINTERSHEIMER, claimant, defendant, to each third allocated ; n party-defendant, concurring. person who has liability. been released from by the I in the result reached concur legitimate differ- majority. There was Leibson, dissent, expresses in his Ap- the Court ence of between majority opinion repre- concern circuit court as how peals and the departure major from established sents ap- prior holdings of this Court unsettling have ef- precedent and will plied situation. In view of to this greatest departure fect tort law. clarity in I do not the case absence principles of tort from established law litigants should bear believe individual century opinion in ambiguity. Hi- judicial legal or burden of Ky., authored 673 S.W.2d 713 provide proper guidance len v. should complete- opinion That by Justice Leibson. in the future. precedent an ly overturned established years. had for more than 100 which existed LEIBSON, Justice, dissenting. represented earthquake of unsettle- It principles of of tort law established Respectfully, I dissent. scale, magnitude of 10 on the Richter of Floyd, facts are that earthquakes, it and as in the case of most plaintiff, accepted “nominal by a series of inevitably will be followed ($2-3,000) involving inju- in a case serious aftershocks. by ry, the insurance carrier when offered driver, Whittamore, majority does not overrule or for his whom host precedent, depart any sued, quite apparently, from never never sue, it is an extension of rule established filed this intended to and thereafter Coleman, (1970). Ky., against Orr Wood and Carlisle Construc- from, departure Company. It is not a nor does it overrule, precedent we have never because argument coun- On occasions at oral two previously held that could respondents, Steven Wood sel J. against nonparty. not be made Such Inc., Company, and Carlisle Construction permitted would not to- be settlement was acknowledged view, my except day, guiding stating “We also discover- “nominal”: once principle Hays, supra, of Hilen v. previously had set- ed that Mr. Whittamore liability apportioned according should be plaintiff for a tled nominal liability fault and the extent stating amount”; later “We should related extent to the of fault. not, course, that nominal bound settlement.” precluded

In this assessing extent as Indeed, they should be bound so far tortfeasors, alleged fault of the two any apportionment instruction right to an them the end result was one of concerned, in no this settlement because subjected portion to a with- right or way impaired their to contribution represented out determination that it Whittamore, against and be- indemnity fault. reached his share of the The result deliberately name they cause chose merely majority the matter sends third-party complaint. Whittamore per- determination back argument at oral about When asked centage appel- Whittamore, fault attributable against failure to seek redress him lant, judgment against will and the Construction counsel for Wood and Carlisle fairly correspond to the extent of his then stated, attorney “Why any defense would fault. obviously bring into who a case someone they did antagonistic to them would be today The result reached not have to?” simply ripple pond tort law understanding splash surpasses from the It spread which has outward background our Court Hays, supra. this factual made elected to rewrite the common person extend- other whom the had never ing Coleman, sued; instead, the defendant would be enti- beyond clearly S.W.2d 59 its tled to a credit defined limitation. Orr was based paid the amount potentially behalf of a 454.040, analogy to permits KRS person liable unnamed as a “jury” in a case on trial to “assess or litigation, right and would retain the several the defendants.” indemnity statutory contribution We held that if the settled before person. such other unsued Orr v. Cole- trial with one defendants named in man, supra, supplant did not Restatement suit, the law remaining defendant was (Second) 885(3), provides Torts § entitled to an instruction. payment by person” that a “any made in construing We were a statute clear its compensation for a claim for a harm for direction, limited to named “defendants.” which others are liable is a credit subsequent applied cases we have Orr v. judgment. All this is well set out situations, variety Coleman Mitchell, Enterprises, Burke Inc. v. permitted apportionment never have we 794-96 party. an unnamed On the con- impartial To an opinions, reader of our it trary, every applying in case Orr v. Cole- appear intolerably unjust must that man, plaintiff’s it was the decision to sue a present plaintiff was denied the benefit party triggered right the defendant’s taking established law which he relied on in to an instruction a “nominal” settlement from his host party; apportionment such driv- permitted party filing parties er before suit he because the had been a defendant point litiga- responsible. before the court at some in the deemed He must now endure tion. trial new to decide be- tween the named defendant and an un- Combs, Lodge Ky., Corbin Motor v. party. named The cost for him must neces- (1987), 740 944 a decision written so “$2-3,000” sarily accept- far exceed the recently hardly dry, by that the ink is ed. It is a no win situation. present Opinion, same author as the we area,” stated “the in this law common law In seeking to demonstrate his reliance doctrine, changed tort should not be unless appellant’s Brief it “reaches an absurd result” or because explaining cites a law review article “change in present compelled law is Germain, subject, Remedies: Contribution grave order injustices.” to avoid 740 S.W. Apportionment Among “Joint Tort- 2d at policy: 946. We announced as our (1976-77), feasors”, Ky.L.J. which change “Unless the need the law is explains that it is not settlement with an compelling, of this court is triggers applica- unnamed stability in the law is apportionment principle tion of the in KRS importance require of sufficient 454.040, plaintiff’s but the decision to sue precedent we not overturn established designated parties triggers right which which itself is based a reasonable to that instruction: premise.” Id. terms, “By appears its KRS 454.040 our it uniform- policy, this is should be P apply only to a situation which ly applied. present case is a critical X Y sued both Ob- [co-tortfeasors]. precedent departure from established with ‘joint not viously, could assess a hun- roots common law well over if P the Defendants’ years deny dred old. Yet we this claimant Germain, only had sued X and not Y.” he took the benefit of the law because supra, at 295. “nominal” from his host driver v. In D.D. Williamson and Co. Allied filing injury before a serious case. Chemical, Ky., 569 S.W.2d 674 n. 3 Until now the law was that the named very this article as “a we described in a law suit of this nature was thorough and evalu- apportionment against helpful some discussion not entitled to (Empha- necessary. not Kentucky subject.” law of the collision is ation of added.) contrary, for the sis On we it into a disaster have turned defendants/appel- view it that the present plaintiff who relied on it. essential justi- lees there was evidence first establish equities all In a case are on where un- fying finding of fault plaintiff, we chosen to the side have even consider named host driver before we longstanding principle. This reverse this judg- whether to set aside the trial court’s compara- assessing does not involve case new on issue. and order ment negligence among parties, tive named permitting Ky., the defendant to evade 532 S.W.2d (1975) by throwing person. previous blame on an unnamed defined the limitation prin- application the Orr v. Coleman Opinion Hays, Our ciple. Plaintiff, passenger who was a (1984), so hyperbolically S.W.2d 713 indict- vehicle, her husband’s elected sue Opin- “Concurring ed in Justice Vance’s her the driver of the vehicle ion,” legitimate explanation not for the a third- husband collided. Defendant filed legal present Vance aberration. party complaint naming plaintiff’s hus- states: held apportion- band. Our Court that the per- “Such would not be v. stated in Orr Coleman view, my today, except mitted circumstances, did apply in these guiding principle v. Hilen ...” plaining authority that “the comparative negligence principle in Coleman, de- excuse, does must Hilen less (KRS 454.040) rives suggest, today’s unjust proper result. The liberally. cannot construed extrapolation comparative negli- Literally, permits apportion- gence present principle to is circumstances ‘defendants,’ only against nec- Comparative articulated in the Uniform essarily means defendants.” Act, U.L.A., Fault Civ.Proc. and Emphasis S.W.2d at 763. added. (Cum.Supp.1984), part adopted Rem.Law in present offends case in provides The Act Hays. Jordan, in law as announced among defendants goes step beyond that case be- a critical party named third defendants. cause, unlike Nix here any party event such named is noncol- present in defendants not even were named lectible, the percentage liability appor- third-party complaint. to party tioned such shall then born by extraordinary. It present is remaining parties (plain- to lawsuit overruling discusses Nix v. Jordan tiff, defendants) defendants and third footnote, volunteering “a on comparative the basis of their fault. this court ... would overrule Nix v. Jor- nothing There is about dan, is different when the fact situation principle, applied, calling fault here, to not been asked and when we have present plain- the abuse inflicted this overruling in consider Nix v. Jordan tiff/appellant. contrary, case. On the defense counsel present appellant In the case the claims argument: stated at oral was, any event, there no evidence of you “I to have overrule Nix do want negligence of his host good I think Nix v. Jordan Jordan. to to a record jury, driver submit law.” this seems bear out. The defend- defendants/respondents do responded ants/appellees’ was What terms, Court, disputed,” spe- “hotly nothing seek in our uncertain point which followed cific that would establish that unnamed to reverse the trial court negligently. appel- host driver acted affirm Court precedent; position erroneously is that cited lees’ “because the exact apportionment principle important nature of the collision is not to hold that the appeal, description applies KRS 454.040 the issue a detailed where accepted a nominal settlement before filing person who is suit from some other third-par-

not a named defendant even a

ty defendant. Vance, Majority the author of the

Opinion, Concurring Opin- has also filed a

ion in which he undertakes a discussion of meaning a stat- and effect of H.B. yet to consider. It

ute we have authority

within the of the General Assem-

bly statutory change in this to effect a so,

aspect the common law. such a

change may plaintiffs in future bind future seriously

cases. But it intrudes both impose simple justice

stare decisis and case.

this result on this to make new law.

This is not the case statutory especially

This is true there are just hori-

changes to be considered over the nothing more

zon. The situation calls for following unpublished opinion es-

than an law, reversing Ap-

tablished the Court peals affirming Frankfort, Cowan, Gen., Atty. Frederic J. trial court. Gen., Atty. Mary-James Young, Asst. movant. LAMBERT, J., dissent. joins Warner, Guagliardo, T. Paul V.

William Louisville, Law, City of Director of Asst. Louisville, amicus curiae. Gallion, Marshall, Baker &

David R. Lexington, respondent. Bray, GANT, Justice. COMMONWEALTH reli- from a As the result of information Movant, Kentucky, informant, a search warrant able at appellant was issued premises of the GROSS, Respondent. warrant, William V. p.m. 10:33 on March affidavit, infor- and the accompanying No. 87-SC-862-DG. issuance was at the time of mation received Kentucky. Supreme Court of of cocaine large there was occupants of the premises, that 6, 1988. Oct. some Uzis possession their house had in 21, 1988. As Corrected Oct. weapons and automatic and other lethal arrest occupants had an of the that one drug-related offenses. record situation, spe- Visualizing high risk dispatched Metro Police was unit of the cial Faced search. an immediate to conduct potential destruc- the circumstances danger drugs and the planned weapons, the officers automatic

Case Details

Case Name: Floyd v. Carlisle Const. Co., Inc.

Court Name: Kentucky Supreme Court

Date Published: Oct 6, 1988

Citation: 758 S.W.2d 430

Docket Number: 86-SC-862-DG

Court Abbreviation: Ky.