Hoerr v. Northfield Foundry and MacH. Co.

HOERR, Appellee, Greg Plaintiff and AND MA

NORTHFIELD FOUNDRY Country

CHINE COMPANY and Defendants, Cabinets,

Hill Company,

G.C. Appellant.

Defendant and

Civ. No. 10872.

Supreme Court of North Dakota.

Oct. 1985. McLarnan, Hannaher, Vaa,

Gjevre, Skat- Moorhead, Minn., McLarnan, vold & argued by appellee; Galen Vaa.

Gunhus, Grinnell, Klinger, Swenson & Moorhead, Minn., for defendant and Guy, argued by Paul E. Grinnell. appellant; GIERKE, Justice. Company, Inc.

Defendant G.C. Peterson [Peterson], appeals from an “amended or- County of the District Court of Cass der” Following entry appeal October 1984. should be order on 1. Hoerr asserts Peterson’s appealed judgment, dismissed because it has from an or- a motion for relief Peterson filed judgment, interlocutory which is der for order of October from the district court’s Zuern, E.g., nonappealable. 19, 1984, Jensen the district court 1984. On October disagree. amending previous an order order entered verdict, jury After the returned its the district pursuant request. to Peterson’s The district court entered an order for 4, on October court stated: Judgment pursuant was entered to this 1984. risk, awarding plaintiff Greg damages in Hoerr and unforeseeable misuse of the wood $47,266.88, plus shaper. special the amount of costs and A was sub- form We affirm. mitted jury disbursements. which contained two separate fault regard assessments with 20, 1982, August On Hoerr suffered a parties, including all and set- injury high-speed work-related when tling defendants. The found that shaper operating he wood was severed Hoerr was entitled recovery under both fingers parts of three from his left hand. liability and strict theories injury, At the time of the Hoerr was em- following and returned the verdict: ployed by aas cabinetmaker Custom Fabri- “17. considering When strict cators, [Custom], Fargo. Inc. Hoerr re- taking concurring the combined causes compensation workmen’s ceived benefits. (the unreasonably danger- defective and shaper The wood manufactured product ous and misuse and/or assump- Foundry Company Northfield and Machine risk) 100%, tion of parties of all the at Peterson, the distributor [Northfield]. what proportion you or do shaper, initially the wood sold the machine following parties: attribute to the Country [Country], Hill Cabinets Foundry A. Northfield & Ma- in turn resold the em- machine to Hoerr’s chine Co. 65% ployer, Custom. Company B. G.C. Peterson 25% 1983, February Hoerr commenced this (mis- Greg Plaintiff C. Hoerr products liability Northfield, against action assumption use and/or (sic) risk) or Peterson, 0% Country and on theories of based Country D. Hill Cabinets 10% tort, negligence, strict and E. Custom Fabricators 0% express implied breach of warranties. TOTAL: 100% voluntarily Hoerr later dismissed his claim Taking “18. the combined express implied for breach of warran- 100%, percent- of all the what complaint alleged ties. The the de- age you do attribute to the fabricated, “negligently designed, fendants following parties: constructed, manufactured, inspected and Foundry A. Northfield & Ma- shaper sold” the wood and that the defend- chine Co. 10% “manufactured, fabricated, designed, ants Company B. G.C. Peterson 45% constructed, inspected and sold” the wood Greg C. Plaintiff Hoerr 0% condition, shaper “in a defective unreason- 22,5% Country D. Hill Cabinets ably dangerous to users and consumers.” E. Fabricators Custom 22.5% TOTAL 100% trial, Prior to Hoerr entered into Pier- (sic) Palintiff’s “19. We find that ringer or Bartels releases2 with defend- damages, any, if in the amount of are Country, ants Northfield and from whom $70,025.00” $10,000 $20,000,respec- Hoerr received entered, tively. proceeded Hoerr to trial as the After the verdict was pursuant sole defendant and asserted as filed a motion to Rule N.D.R. Civ.P., granting judg- negligence, assumption requesting defenses Hoerr’s an order "Further, necessary the final document and should it be to make "amended order” was entered, any change and it that it did not intend the term "amended order” be, appear not that there does will have to judgment.” State v. to mean an "order Cf. then that is to be made within 48 hours Grant, (N.D.1985); Eisen- 361 N.W.2d 243 n. 1 Plaintiff, counsel for the ...” Balfour, City v. zimmer incorporating An "amended order” (N.D.1984). Accordingly, jurisdiction we have changes was entered on October 1984. Pe- appeal. consider this appeal terson’s notice of states in that it “appeals from the Trial Court’s amended Order Hoger, Wis.2d 2. See 19, 1984, entering judgment dated October against (1963), City and Bartels v. Willi Company, G.C. Peterson Inc. ...” ston, unique We conclude that under these circum- contemplated its stances the district court ly support findings ment Peterson on the that Hoerr was either alone, negligent, for 67.5 of the total verdict or had assumed the risk or un- $47,266.88. damages, response, Pe- foreseeably shaper. misused the wood Judg- Entry terson filed a “Brief on Hoerr directs our testimony attention to (1) contending ment” that: clearly supports jury’s the record that should be entered on the strict contrary findings. Under these circum- assessment; (2) the case should be stances, judg- we will not substitute our fault assessment retried with combined jury, ment for that of the which heard the form; (3) judgment en- testimony opportunity judge and had the average tered on an of the two fault as- credibility of the witnesses. con-We (4) jury; sessments rendered clude that there is substantial evidence to judgment should be entered with Peterson support jury’s findings that Hoerr was “picking up only pro rata share negligent, risk, not did not assume the assigned employer, fault to the with the unforeseeably did not misuse the wood sha- parties pick- found at fault other who were per. ing up pro employer’s rata share of the to their fault.” II rejected

The district court Peterson’s con- Peterson that the evidence is in- asserts judgment against tentions and entered Pe- support $70,025 sufficient jury’s to $47,266.88,repre- terson in the amount of damage award. senting damages. 67.5 of the total Vallejo In 244 appeal College, This Jamestown followed. 753, (N.D.1976), N.W.2d 759 this court stat- I ed: jury’s

Peterson first asserts that the ver- “There is no certain or definite rule “perverse” jury dict is because the failed to damages which the amount of can be any assess fault on the of Hoerr under measured, and each case must be deter- either the strict or theo- mined on its merits. This determination ries. Peterson claims that the evidence province jury is in the and the justifies findings negligent, that Hoerr was damages largely matter of rests risk, assumed the and unforeseeably mis- jury. sound discretion of the shaper. used wood ... Before this court interfere will with appeal, the verdict on it must be so ex- length We need not dwell at on this inadequate cessive or so as to be without contention. ques- This court’s review of support in the evidence....” tions of fact [Citations is limited to consideration of omitted.] whether or not there is substantial evi- dence jury’s to sustain the verdict. E.g., present treating In the Co-op. Farmers Elevator Cavalier v. physician injury testified Hoerr’s re Lemier, 833, (N.D.1982). 328 N.W.2d 835 percent permanent partial sulted a 32V2 determining whether or not there is impairment of his left hand which correlat verdict, evidence substantial to sustain the approximately permanent ed to province jury we will not invade the impairment of his entire left arm. The weigh to the evidence or to determine the opinion doctor also testified that his credibility of E.g., witnesses. Powers v. satisfactorily Hoerr would be unable to Martinson, (N.D. 313 N.W.2d perform carpenter his former duties as a or 1981). evidence, reviewing we view cabinetmaker because of the loss of the it in the most favorable to the verdict. ability “manipulate parts, small nails or E.g., Johnson v. Northwestern Bell Tele anything required dexterity screws or Co., phone (N.D.1983). 338 N.W.2d skill_” any degree A rehabilita- Peterson directs psychologist our attention to who evaluated Hoerr tes- testimony in the record that would certain- depression tified that Hoerr suffered from Club, 18 months after the acci- Local 116 approximately Bldg. acquired “anxiety (N.D.1984); dent that he had Farmers Union Grain Termi- power relating operation Nelson, around machin- nal Ass’n v.

ery.” psychologist The rehabilitation also retraining pro- testified that a reasonable The record in this case establishes gram technical at a vocational institute not object Peterson failed to $5,000 $6,000.3 would cost between form, special agreed verdict but that it Hoerr he continues testified that to suffer to the prior contents to its submission to in his hand pain and discomfort left jury. The record also reflects that exposed to cold or when it is weather Peterson request made no that Hoerr elect bumped against objects. Hoerr also testi- recovery prior between his theories of undergone surgical fied he has three jury. submission of the case to the his procedures injury. for treatment of special therefore conclude that the record, Having cannot reviewed we form is binding on the to this ap say amount of that the awarded peal, day and leave to another considera jury unsupported evidence pre-submission tion of whether or not elec excessive. that it is recovery, tion between theories of com forms, separate fault bined assessment Ill (as assessment forms used asserts that the trial court case), proper. submitting separate erred in special While we do not decide that negli- fault under assessments Hoerr’s proper, verdict form in this case is used it gence and strict theories of recov- necessary to nevertheless determine ery. requests that we remand Peterson or court erred whether not the trial this trial with a case for a new combined allowing judgment to have Hoerr to choose form, special fault assessment verdict a fault entered on the assess- copy of which counsel has offered as an ment. alternative, In in this court. exhibit suggests that Hoerr should have Peterson under jury The Peterson liable two found theory required to elect his been of recov- recovery. gen alternative See theories ery before submission case to erally Sales Mauch v. & Manufacturers

jury. Corp., Hauenstein v. Loctite (N.D. Service, (Minn.1984). 1984) negligent [“recovery sought under a recovery theory sought and failure-to-warn consistently This court has held that a products-liability theory of market under a question not raised or considered in the product defective unrea ing a which is trial court cannot be raised for the first sonably dangerous it is not accom because time appeal. E.g., Family Drug on Center by warnings sepa are two Store, panied adequate Inc. v. North Dakota State Board recovery”]. rate and distinct theories (N.D. Pharmacy, 181 N.W.2d 1970). that Hoerr not be contends have also held that no We where judgment to have en objection allowed choose special to a verdict form was him made, theory affords finding upon special tered on jury’s i.e., recovery, negli- greater binding. verdict is Andersen Teamsters amount plaintiff prejudicial failed to that under this deci- error where 3. Peterson contends court’s Janke, (N.D. certainty establish "with reasonable medical sion in Holecek v. 1969), surgery probability prejudicial future was neces- court committed the district sary_” present allowing psychologist In Hoerr has estab- error the rehabilitation that, regain specific retraining his testify costs lished order for him to for- as to the retraining earning program actually capacity, was not establish mer because Hoerr did that he Holecek, training. necessary he was reasonable because dis- enroll in such intended to prior performing duties this abled from his 171 N.W.2d at court held hospital carpenter Holecek is there- and cabinetmaker. admission of estimated costs surgical inapposite in this possible surgery fore the situation case. future fees for genee, and asserts that under the circum- A brief restatement of the relevant facts compro- helpful point. case the at stances this “fairest this Plaintiff Hoerr was found average jury percent mise” would be to the strict liabili- to be 0 at fault under the ty fault assessments. Pe- assess- Country, ment. provided authority Northfield and which were terson has us with no technically longer no defendants in the suit approach per- and has failed Hoerr, because of their settlements with averaging suade us that the two fault as- jury percent were found to be 10 sessments would constitute the “fairest fault, percent and 22.5 respectively. at compromise.” Custom, which was immune agree following ration from suit remedy virtue of the exclusive Jersey Supreme ale of the New Court provisions Compensation of the Workmen’s Capital Corp. Cartel v. Fireco New Act, percent was found to be 22.5 at fault. 548, 564-565, Jersey, 81 N.J. 410 A.2d remaining nonsettling tort-feasor, sole (1980): 682-683 Peterson, was found to be 45 perceive “We of no reason to disavow fault. The trial court entered liability] merely strict be- th[e against $47,266.88,represent- Peterson for plaintiff cause the was also found enti- ing fault, 67.5 of the causal or the negli- tled to recover due to Fireco’s combined total of fault assessed gence. Where a defendant is found lia- the nonsettling tort-feasor and the statuto- theory liability, plain- ble on the of strict rily employer. recovery tiffs entitlement to should not Bartels, joint this court held that the diminished altered because defend- liability provisions and several of our com- ant is theory also liable on another statute, parative negligence 9-10-07, wrongdoing.... ‘When a verdict N.D.C.C., are for the injured benefit of the sustains several alternative theories of be waived. We further held recovery by plaintiff, advanced the trial by entering general into a release the court must chooses oth- [unless has waived the render theory on the erwise] 9-10-07, N.D.C.C., liability provisions of § greatest which affords recovery.’ the plaintiff’s recovery and that the from the Homes, Inc., Mowery v. Fantastic 568 nonsettling tort-feasors is “limit- therefore S.W.2d (Tex.Civ.App.1978).” percentage ed to the of attribut- remaining nonsettling to the that, able tort-fea- We conclude under the circum by sors as be determined the court or stances of this the district court did Bartels, jury, the granting not err in ...” 276 N.W.2d request Hoerr’s to have at 122. entered on the assessment. In Layman supra, 343 N.W.2d at theory

we determined that the Bartels of apply waiver does not “so as to eliminate IV concept joint the liability of and several in a Peterson asserts that the district court involving negligent third-party case a tort- it, holding erred in as the sole feasor and an immune from defendant, percentage liable for the entire suit....” We therefore held that of employer, causal fault of Hoerr’s Cus third-party tort-feasor in I could presents question tom. This im of first jointly be held liable for the pression jurisdiction requires this which of attributable to interrelationship prin us to examine the of statutorily employer. immune ciples in Layman enunciated v. Braun schweigische (Lay Maschinenbauanstalt The fact situation Bartels did not in- I), (N.D.1983), man N.W.2d 334 clude a employer. Williston, City Bartels v. 276 N.W.2d in Layman fact situation I did not include settling pro- tort-feasors. The instant case agree “I majority The threshold issue with the that us with both. vides Bar- joint liability or not Hoerr’s thus becomes whether between Pitts- Northfield and Coun- burgh [appellant] settlements with and Manville tels [bank- concept joint and sev- try destroyed the rupt] destroyed. has not In Frey been v. liability regard to all eral (Minn.1978), Snelgrove, 269 N.W.2d 918 defendants, thereby precluding application supreme court stated: I in this case. type By the terms of this of release Appeals nonsettling defendant

An en banc Minnesota Court will never be analogous issue. recently required pay has addressed an more than his fair Co., 364 Armstrong Cork the jury’s share as determined find- (Minn.App.1985), appellant, ing comparative negligence. only nonsettling defendant in a multi- 921; City “Id. see also Bartels v. action, liability ple-defendant products Williston, (N.D. required to that it should not be claimed 1979). in Frey, The court as well as in pay portion attributed Bartels, plaintiff held that a waived the bankrupt that had to a defendant joint statutory provision liability majority from the case. The been severed entering Pierringer type into a release. releases of the court held that however, cases, Both involved one joint liability between all de- do not waive defendant; nonsettling there are two fendants, their “indemnification but present in the such defendants case. merely plaintiff fi- provisions shift to the concerned “Both courts were with the settling de- responsibility nancial for the nonsettling defendant situation where liability.” Hosley, supra, 364 fendants’ percentages would liable for the N.W.2d at 816. to the fault attributed defend- decision, reaching majority its re- abuse, prevent potential ants. To appellant’s argument it jected the the courts held that a could not adopt “the North Dakota view” the entire based on the recover statutory joint enunciated Bartels liability several between by Pierringer is waived settlement cotortfeasors, thereby precluding the Hosley, or more defendants. su- with one holding the nonsettlors from Apparently at 815-816. pra, for the attributed agreeing definitively settled Bartels sense, settling defendants. In this question or not the waiver whether only severally liable the nonsettlors are to situations in more than extends words, plain- plaintiff. In other one defendant remains receiving a dou- precluded tiff was lawsuit, majority stated: requiring a nonset- recovery by not ble protects “The North Dakota rule nonset- pay portion of the tling defendant tling potential preju defendants from the already had been satis- judgment which by requir Pierringer dice of settlement Accordingly, joint was sev- fied. ing plaintiff the to bear the full risk settling the and non- ered between insolvency believe of defendants. We court settling Frey The defendants. plain approach unfairly penalizes it ‘Sincethe this clear when stated: made discourages Hos tiffs and settlements.” nonsettling is relieved from defendant supra, 364 N.W.2d at 816. ley, fair share of the paying more than his verdict, may prop- majority’s the other defendants disagree Hosley with the We partic- further erly dismissed from application of Bartels be interpretation of the Rather, at ipation Frey, in the trial.’ under this set of circumstances. 922; Comparative Fault Uniform Judge Nierengarten’s well- see also agree with we Act, 11 12 U.L.A. 49 6 illustration interpretation Frey v. Snel reasoned Steenson, ‘Comparative (Minn.1978), (Supp.1985); a Min grove, Reallocation’ vol. no. 5 in Fault and Loss by case cited our court Bartels: nesota (1981).” Lawyers, percent Minnesota Trial found to be 7 at fault. com- The (Nier Hosley, supra, 364 N.W.2d at 818 settling bined fault of the defendants who J., engarten, C.J., Popovich, and concur were found to be more at fault than the ring part, dissenting in part).4 plaintiff percent. totaled The plaintiff awarded in the Bartels, supra, 276 at N.W.2d $350,000. amount of The trial opinion we court re- cautioned that the broadly not be read by too and that “a differ duced the award of dam- conceivably produce ent set of facts could ages attributable and set- by different answers.” conclude that defendants, tling nonsettling found the de- entering release, plain into a Bartels bankrupt jointly fendant and defendant and liability only tiff waives $122,500, severally remaining for the settling nonsettling between de judgment against and entered the nonset- fendants, nonsettling and that the defend tling defendant for that amount. ants be held lia Applying theory equitable common portion ble for the entire of causal fault contribution, majority law stated: only by portion reduced of fault attrib “Eventually pays whoever utable to the defendants. 25% apportioned by the verdict the jury to Peterson contends that Custom’s causal [bankrupt] may Manville be able to re- among fault should be distributed all caus- cover that amount from Manville. How- percentages al based on their ever, bankruptcy stay places claims pro- own causal fault because this would Manville indefinite limbo. So equitably duce “the correct result.”5 equitable we are faced with the dilemma majority of the court in Hosley, su- allocating through contribution pra, appears adopted, to have as a matter recovering risk of from Manville. equity, approach similar to that ad- equitable “Because contribution is a vanced Peterson in this case. Hos- concept flexible there is no standard rule ley, the sole nonsettling defend- universally applied. or formula to fault, be Re ant was found to at be bankrupt defendant lief is to fashioned in was found to be 25 fault, equitable and the presented. dilemma We be separate opinions 4. Three Corp., were filed the Min- Lambertson v. Cincinnati 312 Minn. However, Appeals (1977). Hosley. Although nesota Court of 257 N.W.2d 679 law, under our concurring dissenting opinions the two Compensation operates dis- the Workmen’s Act agreed majority’s with the employer’s liability resolution of another to foreclose an for contribu- presented judges issue all third-party to a tort-feasor. See agreed Services, Inc., the en banc court supra; Gernand Ost destroy joint Thus, settlements did not be- under our law as it has appellant bankrupt tween the defendant. say developed, we are unable to that a nonset- 31, 1985, May We note that on the Minnesota tling required pay defendant will never be Supreme agreed Court to review the deci- more than his "fair share" in a situation where a sion. employer immune is also found to be place at fault because in I we chose to Judge Nierengarten, concurring in his inequity involving inherent in cases dissenting statu- opinion Hosley, quoted statements torily third-party that, on the tort- Frey from Pierringer to the effect terms of release, injured employee. feasor rather than the defendant will required pay never be more than his "fair argues Country 5. Peterson also that should be share.” percentage neg- liable for the entire of Custom’s fully We are aware of the difference between because, ligence like BMA in Coun- North Dakota law and Minnesota law when a try’s personnel "supervisory had a role” in the statutorily employer is involved. Un- operation holding of law, Custom. Our I third-party der Minnesota a tort-feasor that BMA was for the of the employee sued can maintain an action for employer premised on the against contribution the for an 9-10-07, N.D.C.C., liability provisions §of proportional percentage negli- amount to its of “supervisory might not on the role” BMA have gence, exceeding but not its total workmen’s employer’s plant. the had over compensation liability employee. to See the Moreover, equitable ap most sors. under the reme- lieve the fairest and exclusive dy provisions to the of our proach Compensa- in this case would be divide Workmen’s Act, employee a $87,500 ability tion has no Pittsburgh [ap at issue between elect not bring to whether or to suit settling defendants pellant] and the against employer. his or her 65-01- Hosley proportion See more-at-fault than § Therefore, N.D.C.C. under our statu- fault. This would result in Pitts to their 10/ n tory the scheme and circumstances of the ($15,086.21) paying fig of burgh the instant inapplica- this consideration is Hosley’s re ure. would be 4 n ? ble. ($72,413.79) remaining the duced agree indemnification because of his majority also found relevant Hosley settling ments with the defendants.” following the consideration: supra, N.W.2d at 817.

Hosley, “It inequitable deny to the com- would be pany the de- find the and result reached contribution We rationale Hosley more-at-fault than mere- unpersuasive in this fendants Hosley majority the ly Hosley ultimately pay would because because we believe the court’s de- instance precise- the claims. That is contribution equitably bankrupt the cision to reallocate ly Hosley what contracted do. It is an to fault is percentage defendant’s of ultimate- expected of consequence Pierringer the premised upon statutory principles that ly Hosley, settlements." differ from our own. N.W.2d at 817. weighing equities, the ma- presence that the the Min- believe of

jority particularly found it relevant that the nesota reallocation statute also ren- fault elected, objections had over inapposite ders consideration defendant, to sever the Although Hosley majori- instant case. bankrupt defendant from lawsuit. This ty’s might result well be considered an significant especially is be- consideration “expected consequence” Pierringer set- bankrupt cause had defendant not been Minnesota, tlements in the same cannot be formally party severed from the law- as said of settlements Bartels suit, reallocation the Minnesota fault stat- in North Dakota. 2,6 ute, 604.02, presum- Minn.Stat. subd. § ably applicable have to would been serve N.D.C.C., 32-38-04(2), pro Section reallocating bankrupt for de- the basis pertinent part that “a release ... vides percentage among of fault fendant’s good to one of two or more given faith parties. Hosley, injury causal su- in tort for the same persons liable The North it is pra, discharges at 816. Dako- the tort-feasor to whom ... Legislature adopted statutory to given ta has not from all contribution for [Emphasis reallocating any for causal other tort-feasor.” scheme fault added.] Bartels, supra, N.W.2d at held in insolvent or immune tort-fea- We 604.02, any subject provides: to contribution and nonetheless 6. Minn.Stat. continuing liability to the claimant on the Apportionment "604.02. judgment. per- "Subdivision 1. When two or more arising case of "Subd. 3. In the a claim liable, jointly sons are contributions manufacture, sale, consump- from the use percent- shall awards be in product, an amount uncollectible each, age except of fault attributable any person in the chain manufacture each is liable for the among shall be reallocated distribution award. whole persons in the chain manufacture all other Upon 2. made later “Subd. motion not among claimant but not entered, distribution year judgment is than one after who are not in the chain of or others at fault whether all or of a court shall determine product. manufacture or distribution of Provided, obligation equitable party's share however, person whose and shall reallo- uncollectible from claimant liable to the among is less that of a any than the oth- cate uncollectible amount judg- fault, portion including claimant parties, ac- er a claimant represents of fault percentages cording respective ment which their to him." A is reallocated is attributable fault. whose 332

122, release, preme by entering that into such a that its comparative Court has held recovery plaintiffs negligence “is limited did any to the statute not effect percentage negligence change attributable to law joint common doctrine of the remaining among tort-feasors as several concurrent tort- may by the Schulze, be determined court or the feasors. v. See Bielski 16 Wis.2d jury, Thus, entering 1, 6, 105, 107(1962); ...” into a Bartels 114 N.W.2d Walker v. plaintiff expects a release this state Co., Kroger Baking 214 Grocery & Wis. recovery only by his or her reduced 721, have 519, 536, (1934). 727 252 N.W. The portion that of causal attributable to Supreme Wisconsin has on Court occasion defendants. Given 32-38- urged § been rule for adopt reallocating 04(2),N.D.C.C., joint and several liabili- the fault of insolvent tort-feasors so as to 9-10-07, N.D.C.C., ty provisions § plaintiff’s recovery, reduce the but has re statutory the absence of a scheme for real- jected approach being contrary fault, locating plaintiff impli- does not joint liability. the doctrine of edly agree, expect as a natural conse- Howell, 491, 34 Chille v. Wis.2d quence settlement, into a entering (1967), case ap- cited with portions he or forced to she will be absorb proval by I, supra, this court in of causal to nonsettling fault attributable 346-347, 343 N.W.2d at tort-feasors are either who insolvent or negligent, found percent judg- to be 5 from suit. ment-proof was found defendant to be 75 We conclude that Minnesota’s fault percent negligent, appel- and the solvent reallocation statute renders the ma percent lant negligent. was found to be 20 jority’s equitably reallocating rationale for judgment against The trial court entered bankrupt defendant’s causal fault appellant percent plain- for 95 unpersuasive statutory case under our damages. appellant tiff’s total con- scheme, accordingly and we decline to judgment-proof tended that the defendant’s adopt it. negligence should be redis- tributed between the itself in joint Under the doctrine of and sev percentages neg- to their own liability, eral which has been codified in ligence. noting After that the Wisconsin 9-10-07, N.D.C.C., a defendant § comparative negligence statute did not held plaintiff’s liable for a total recoverable change joint the common law rule that all even when a finds that de tort-feasors liable at all are “who are only partially fendant at fault. Lay See injured person for entire amount I, supra, man 343 N.W.2d at [Walker, supra}, now recoverable him” therein; cases cited South v. National R.R., the court stated: Corp., Passenger 290 N.W.2d (N.D.1980); Peterson, see also Truscott v. appellants urge “The in this in 498, 513-514, 78 N.D. 50 N.W.2d recovery against stance where Howell (1951). [judgment impossible proof] improb [plaintiff] negligence able Chille’s previously recognized We have that our compared should be to Grimstad [sol statute, comparative 9-10-07, § as a whole would reduce vent] ultimately derived Wisconsin’s com- 5/25ths recovery by permit Chille’s so as to statute, parative Wis.Stat. recovery of 80 of the amount Day 895.045. General Motors § awarded rather than as or (N.D.1984); Corp., 345 dered the trial court. Mauch, 2; supra, N.W.2d at 348 n. 346; supra, comparative N.W.2d at “The Bar construction tels, supra, Although 118. statute as announced in statute, 9-10-07, Grocery the Wisconsin unlike Kroger Baking Walker v. & Co., provide 1934; does not retention of has been law since several Wisconsin Su- several of our have cases reaffirmed the

333 lawsuit, upon the ancient common-law instead remained rule it would based and of had to share concept of several have with General Motors a persuaded proportion of the joint tort-feasors. We are not amount that uncol- changed.” Chille, supra, 34 the judgment-proof lectible from it should be Gut- 500, 149 at 605. manns. There requiring Wis.2d at N.W.2d exists no rule solvent, nonsettling equi- tort-feasors to again proposed reallocation was Fault tably share that judgment of a Motors appellant Chart v. General insolvent, uncollectible from an (1977). 80 Corp., Wis.2d nonsettling tort-feasor. We decline to jury apportioned liability at 75 Chart rule consider such a here. percent to the insolvent defendant Gut- “Were we to such consider a rule we mann; percent appellant 12 Mo General would, in this have take second tors; percent settling 5 defendant Vilas step: Once it determined solvent non- County; percent plaintiff. settling equitably tort-feasors must two state also determined that the burden of share the insolvent tort- percent negligent, employees were 5 but feasor’s we would then re- be had entered for the trial court quired to hold that where a notwithstanding the ver defendants these executed, plaintiff steps release is Motors that Gut- dict. General contended settling of the the shoes tort-feasor. To portion judg uncollectible mann’s plaintiff’s would so hold defeat motiva- itself ment should be redistributed between entering for into a release. The settling that General and the defendant so monetary value the release to the 12/nths, liable Motors would be for contingent plaintiff would become on remaining bear the 6/w would lawsuit, certainty and thus the and ra- ths, judg portion the uncollectible fixing tionality rights and liabili- ment. ties between defendant Chart, at supra, 80 Wis.2d The court reject plaintiff would lost. We Gener- 9, cited n. 258 N.W.2d at 687 n. 108-09 argument.” Chart, supra, 80 al Motors’ Bielski, proposition for the that the supra, 109, 258 at 687-688 Wis.2d at negligence did not comparative statute [Footnotes omitted.] plaintiff’s right to recover “change the panel the Wisconsin note that the total against any defendant tort-feasor appears recently Appeals to have Court damage he is enti- amount of his to which to that theoretically a rule similar adopted tled,” and stated: the shares by Peterson which proposed Motors have the “General seeks to assigned to immune and non- it reduced in are redistributed between party defendants Pierringer-type be- release executed remain who nevertheless defendants other County. plaintiffs tween Vilas entire complains that the other Motors General judgment. Larsen amount Gutmanns, defendants, Co., 120 Wis.2d Light Power & Wisconsin the effect of judgment-proof and that are (Wis.App.1984); see County is to bar the release with Vilas F.Supp. Ladwig v. Ermanco also right of contribution Motors’ General (E.D.Wis.1981) [applying Wisconsin only other solvent defendant against the law]. asks us (Vilas County). Motors General plaintiffs consequence, 521-22, as a Larsen, to hold that 120 Wis.2d portion of the uncollectible 563-564, should bear court held that N.W.2d at non- that the judgment, attributable the 55 (General Motors) bears settlor’s defendants nonparty immune and three (Vilas County’s) liability. propor to the settlor’s according to the divided should be had proposal tion of “But this assumes defendants, assigned to the two liable release and County not executed a Vilas 9-10-07, which had been found to be 20 provisions several of § percent negligent, respec 25 N.D.C.C., legislature which our has left tively. assigned The court thus 2%5 55x adoption intact since the statute’s in 1973.7 percent, percent, or 44.44 to the first liable urge There are those who that the time defendant and n percent, 55 or 55.56 x joint has come to abolish the doctrine of percent, to the other liable defendant. The liability, modify several or to the doc- court, however, Larsen was careful by allowing trine fault reallocation in situa- point out that: involving tions insolvent or im- “This conclusion does not alter tort-feasors, mune suggests. as Peterson injured party’s right recovery to full arguments Meritorious can be made both joint negligent more tortfeasor pro regard and con with to each of these injured party. than the See Chille v. However, 9-10-07, proposals. N.D.C.C., § Howell, 491, 499-500, 34 Wis.2d currently provides joint that each tort-fea- (1967). judg- 604-05 sor “shall remain lia- ment modification affects contribu- [Emphasis ble the whole award." add- rights among tion the tortfeasors.” Lar- for statutorily-imposed If the doctrine of sen, ed.] supra, 120 Wis.2d at 521 n. joint perceived and several [Emphasis N.W.2d at 564 n. 6 added.] being unfair and in need of abolishment or I, In Layman we held that modification, prerogative it is the plaintiffs damage recovery against a de legislature, the policy-making branch of fendant could per not be reduced government, necessary to effect centage attributable to the changes. “any We reiterate that changes plaintiffs employer because it would be comparative negligence act or the contrary joint to the doctrine of remedy provisions subroga- exclusive liability. pro We conclude that Peterson’s provisions tion compensa- of the workmen’s posal to employer’s per redistribute the tion centage of fault all statutes are matters best left to our parties between causal recovery legislature.”8 I, so as to reduce Hoerr’s contrary joint case is likewise and N.W.2d at 350. See also Gernand v. Ost 7. The drafters’ place among comments to the Uniform Com- parties “Reallocation takes all parative provisions Fault Act's on fault realloca- at fault. This includes a claimant who is recognize incompatibility tion also between contributorily at fault. It avoids the unfair- joint reallocation and the doctrine of al and sever- joint-and- ness both the common law rule liability: liability, several which would cast the total Liability Equitable “Joint and Several uncollectibility upon risk the solvent defend- Obligation. Shares The common law ants, abolishing joint-and-several and of a rule joint-and-several liability rule of tort- liability, which would cast the total risk of apply feasors continues to under this Act. uncollectibility upon the claimant.” Unif. This is true whether the claimant was contrib- 2, Comment, Comparative Fault Act utorily negligence or not. The [sic] (Supp.1985) [Emphasis U.L.A. 44 added.] judgment can recover the total amount of his against any defendant who is liable. Legislative Assembly 8. We note that the 49th judgment “The for each claimant also sets passed "directing a concurrent resolution forth, however, equitable share of the total Legislative study comparative Council to obligation party, to the claimant for each negligence laws and their interaction with the based on his established of fault. products liability, strict and workmen’s party This indicates the amount that each compensation laws in of recent North Da- eventually responsible for as re- Supreme kota Court decisions.” 1985 N.D.Sess. sult of the rules of contribution. Stated in the possible legislative Laws Ch. 852. One solution itself, it makes the information Note, Specialty outlined in Glass v. Stahl normally available to the and will be a Company: Reconciling Party’s Third Contribu- basis for contribution without the need for a Rights Employer’s Immunity under arising separate court order action. from motion or Compensation, Puget Workers' 6 U. Sound (1983). L.Rev. 343 eq- “Reallocation. Reallocation of obligation uitable share of the place of a takes his when share is uncollectible. Services, (N.D. not, The current majority 298 N.W.2d issue is as the 1980); Holstrom, opinion recognizes, Sayler v. the same issue we in Layman faced I. In because prohibition statutory against an em- conclude that the trial court ployee’s bringing against action an employ- properly entered Peter compensation er under workmen’s cover- per son on the 67.5 age, powerless bring damages. cent of Hoerr’s total the into the suit. There was no any potential release the V Here, plaintiff, defendant. the through his ap Hoerr asserts that Peterson’s some, all, but not release of the defend- in peal is frivolous and has not been taken has, action, ants his own created immu- faith, good thereby justifying an award of nity for those defendants with whom he costs, damages, attorney pursuant fees not, therefore, I has settled. would extend 38, N.D.R.App.P. to Rule We do not con application I to this case. appeal sider Peterson’s to be frivolous or to As noted in concurring Justice Gierke his have been taken in bad faith. Houser opinion in Layman 334 N.W.2d at Gilbert, v. “equate giving we cannot of a volun- Accordingly, Hoerr’s motion is denied. release, tary as in the Bartels with opinion, For the reasons stated in this statutory provisions 65-01-08, of § is affirmed. N.D.C.C.” I apply majori- would the rationale of the ERICKSTAD, C.J., MESCHKE, J., ty opinion Hosley Armstrong in v. Cork concur. Co., (Minn.App.1985), WALLE, Justice, concurring in VANDE equitable under the common law contribu- part dissenting part. in concept; that there is no tion is flexible I, II, III, in parts I concur and V of the universally applied; rule to standard or majority opinion. agree part I cannot in and that relief is to be fashioned respectfully IV thereof and therefore I dis- equitable presented. dilemma Al- majority opinion. to that of the sent majority attempts distinguish though the Braunschweigische on the basis of a Minnesota statute v. Mas chinenbauanstalt, statutory providing reallocation be- N.W.2d statute, (N.D.1983) I), expressed my I Dakota has no such (Layman. cause North stating equity opinion concern as is clear in because requiring (Johns-Manville bankrupt party Sales defendant to assume the share of the liabil who, formally severed from ity plaintiff’s employer Corporation) of the stat “was ute, proceeding party not a “reluctantly” is immune from suit. I inapplicable.” 364 the statute is concurred the result reached therein be lawsuit I appeared it at 816. would therefore conclude cause to me that “a resolution N.W.2d Custom, penalize employer, employee which does not who is that the entirely rest injured through no of his should not with G.C. own just Company, but rather should be divided a more resolution than one which reducing Peterson and the defend- would result between expense to their fault. Such a negligent third at the ants deci- employee, I further noted solution is in accord with this court’s innocent ...” Williston, sug City sion in v. therein that an alternative resolution Bartels (N.D.1978), and does no vio- gested by dissenting opinion Justice Sand’s Holstrom, Lay- court in Sayler lence to the decision of the had been discussed because, above, (N.D.1976), I as noted here the rejected but man Hoerr, voluntarily plaintiff, released the legislative it was a matter for at because liability. from other defendants tention. I should not that the solution have ants be entitled

It be said employer’s all recover share of liabil- discourages That suggested settlements. ity from defendants. I conclude may be the result but cannot encouraging settlements should be LEVINE, J., concurs. Rather, system. judicial touchstone of our requires appears equity it to me that already permitted to plaintiff, who is employer’s liability

recover the share of the defendants, but who has

from the other some, all, of those defend-

released but not

Case Details

Case Name: Hoerr v. Northfield Foundry and MacH. Co.

Court Name: North Dakota Supreme Court

Date Published: Oct 28, 1985

Citation: 376 N.W.2d 323

Docket Number: Civ. 10872

Court Abbreviation: N.D.