Marilyn J. HAMMERSCHMIDT, Individually and as mother and natural guardian of Sharon J. Hammerschmidt, et al., Plaintiffs, v. Michael J. MOORE and Myra Moore, Individually and d. b. a. Coates Station Bar, et al., Defendants and Third-Party Plaintiffs, Appellants, v. Dennis TREML and Wallace Woldengen, Individually and d. b. a. Round-Up Bar, Inc., et al., Third-Party Defendants, Respondents, Gary Kummer and Joe C. Kummer, Individually and d. b. a. W-K Black Stallion Supper Club, Inc., Third-Party Defendants, Respondents, L. Charles Peterson, Special Administrator of the Estate of Joe Hammerschmidt, Decedent, Third-Party Defendant.
No. 47758.
Supreme Court of Minnesota.
Nov. 17, 1978.
274 N.W.2d 79
Faegre & Benson and George W. Flynn and John P. Borger, Minneapolis, for respondent Treml and Woldengen.
Carroll, Cronan, Roth & Austin, Minneapolis, for respondent Kummer.
KELLY, Justice.
This is an appeal from a judgment of the district court granting a third-party defendant‘s motion for dismissal of a third-party complaint. The question for decision is whether the notice requirements of
This action arose out of a two-car collision which occurred in the early morning hours of March 2, 1974, involving automobiles driven by Joseph Hammerschmidt and Dwaine C. Beyer. Hammerschmidt died as a result of the injures received in the collision. On May 24, 1974, pursuant to
Thereafter plaintiffs, wife and children of Hammerschmidt, brought suit against appellants under the Civil Damage Act,
Respondents moved for summary judgment on the ground of lack of statutory notice as required by
The notice of claim provision contained in
Appellants contend, however, that those cases are not the law in light of this court‘s opinion in Spitzack v. Schumacher, 308 Minn. 143, 241 N.W.2d 641 (1976) and that decision‘s treatment of White v. Johnson, supra. Appellants particularly rely on the following language from that opinion:
“The doctrine of contribution is an equitable doctrine which requires that persons under a common burden share that burden equitably. ‘One who has paid more than his share is entitled to contribution from the other to reimburse him for the excess so paid * * *.’ Employers Mutual Cas. Co. v. Chicago, St. P. M. & O. Ry. Co., 235 Minn. 304, 310, 50 N.W.2d 689, 693 (1951). Accordingly, ‘[t]he very essence of the action of contribution is “common liability.“’ American Auto. Ins. Co. v. Molling, 239 Minn. 74, 76, 57 N.W.2d 847, 849 (1953).
“Common liability ‘is created at the instant the tort is committed.’ White v. Johnson, 272 Minn. 363, 371, 137 N.W.2d 674, 679 (1965). Even though a joint tortfeasor may subsequently acquire a particular defense against an injured party, that tortfeasor may still be held liable to a cotortfeasor for contribution. Thus, an injured party‘s ‘execution of a covenant not to sue does not destroy the common liability necessary to a cause of action for contribution.’ Employers Mutual Cas. Co. v. Chicago, St. P. M. & O. Ry. Co., 235 Minn. 304, 309, 50 N.W.2d 689, 693. Similarly, neither an injured party‘s failure to bring an action against a tortfeasor within the statute of limitations (Gustafson v. Johnson, 235 Minn. 358, 364, 51 N.W.2d 108, 112 [1952]) nor
an injured party‘s failure to provide statutory notice of a claim against a municipality (White v. Johnson, supra) relieves a tortfeasor of his liability to a joint tortfeasor for contribution.
“* * * [I]n all of these cases the defenses were procedural in nature and did not go to the merits of the case. The defenses of release, statute of limitations, and lack of statutory notice do not deny liability, but rather avoid liability. Thus, the underlying common liability was never extinguished and a joint tortfeasor‘s right to contribution was allowed.” (Italics supplied.) 308 Minn. at 145, 241 N.W.2d at 643.
Appellants argue that because common liability arises the instant the tort4 is committed, they cannot be deprived of their right to contribution by reason of plaintiffs’ loss thereafter of their own right of direct action against respondents. Appellants also argue that the absence of statutory notice in a third-party claim for contribution should be treated similarly to the running of a statute of limitations against one of two tortfeasors whose liability in a direct action by the injured plaintiff is barred by virtue of the latter‘s failure to bring an action within the limitation period. In that situation the tortfeasor who has been sued “has the right to implead the unjoined joint tortfeasor in plaintiff‘s action for the purpose of proving their common liability even after the statute of limitations on plaintiff‘s claim has run.” Markey v. Skog, 129 N.J.Super. 192, 201, 322 A.2d 513, 518 (1974). See Grothe v. Shaffer, 305 Minn. 17, 232 N.W.2d 227 (1975).
First, appellants exaggerate our treatment of White v. Johnson, supra. In citing that case in Spitzack, we stated only that the injured party‘s failure to give statutory notice did not relieve a joint tortfeasor of its liability for contribution. In White the issue was whether a third-party claim for contribution or indemnity could be preserved against a municipality by the third-party plaintiffs’ giving sufficient statutory notice notwithstanding the absence of any notice to the municipality by the injured plaintiff. In ruling in the affirmative, we stated:
“* * * The purpose of the statute is to enable the municipality to promptly investigate * * * to ascertain the existence and extent of any liability * *. Obviously, this purpose is served as well by notice from a joint wrongdoer as from an injured party.” 272 Minn. at 372, 137 N.W.2d at 680.
Quite plainly White did not disturb those decisions describing the statutory notice required in tort actions against municipalities as “the foundation necessary to maintain an action for contribution or indemnity.” Id.
As recognized in Spitzack, however, White v. Johnson did establish that the failure to give statutory notice does not destroy the common liability necessary to maintain an action for contribution; i. e., common liability is created the instant the illegal acts prohibited by the civil damage act occur. See,
“* * * [W]henever one of several vendors is held liable by reason of an unintentional illegal sale, it is only just that he be afforded a remedy against other vendors to compel them to bear their fair share of the common liability. There appears no valid reason to permit other vendors, whose illegal sales have combined to cause the loss, to escape liability while casting the burden solely upon one. To do so would unjustifiably emphasize the penal over the remedial and regulatory objectives of the act. Allowing contribution may not demonstrably advance the compensatory objectives of the act in favor of the injured party, but it will not hinder that objective and it will spread the burden of economic loss more equitably upon the liquor industry.
“Secondly, the act by the imposition of the sanction of strict liability provides an extremely effective incentive for liquor vendors to do everything in their power to avoid making illegal sales. Murphy v. Hennen, 264 Minn. 457, 119 N.W.2d 489 (1963). The allowance of contribution between unintentional violators would serve to increase this incentive, for it will make more certain that every vendor who makes an illegal sale will be unable to escape liability for his share of the damages resulting because of ‘the accident of a successful levy of execution, the existence of liability insurance, the plaintiff‘s whim or spite, or his collusion with the wrongdoer’ as is possible if the right to seek contribution were denied.”
These are significant policy considerations which could be frustrated by a rule requiring that notice be given third-party defendants in civil damage contribution actions.6 Further, it would be patently inequitable to allow an injured plaintiff to select arbitrarily, whether intentionally or inadvertently, which of several tortfeasors should be burdened with the entire obligation for a wrongful act by delaying notice until there is little, if any, time to seek out joint tortfeasors. Such a plaintiff could eliminate the right of contribution before the primary claim is asserted or the contribution claim is known. The rights of the contribution claimant would be “dependent on the whim of the injured person.” White v. Johnson, 272 Minn. at 372, 137 N.W.2d at 680. The right of contribution should not be denied under circumstances over which the party seeking contribution has no control over the right to maintain the action, especially where the language of the statute does not expressly or by implication deal with the subject. Cf. White v. Johnson, supra.
Reversed.
SHERAN, Chief Justice (dissenting).
The alleged illegal sale of liquor occurred on or about March 2, 1974. No notice of claim was served on the liquor vendors from whom contribution is now being sought until on or about September 29, 1976—a time lapse of 2 1/2 years. The purpose of the statutory requirement (
The majority opinion, in my view, ignores the clear legislative purpose of the notice requirement in
I would affirm the decision of the trial court.
WAHL, Justice (dissenting).
I join in the dissent of SHERAN, C. J.
OTIS, J., took no part in the consideration or decision of this case.