*1 necessary cooperat- been had the husband
ed. Id. at 312. The standard review
requires a clear abuse discretion for Wanglie,
reversal. Wanglie v. 356 N.W.2d
850, (Minn.Ct.App.1984)pet. rev. (Minn. 1985). denied Feb. requires
While incomes, parties’
consider the some appellate
cases courts have reversed basis,
awards on that Burton holds that
other factors can also serve as a basis for facts,
an attorney award of fees. On these attorney
we hold the fees award
an abuse discretion.
Respondent requested attorney fees for appeal. previously affirm We those
granted, attorney but do not further award appeal.
fees for this
DECISON by reinstating court did not err
January support order
temporary support. reduction in child It proper appellant’s earning to consider
capacity. The trial court did not abuse its by awarding respondent attorney
discretion
fees.
Affirmed. HOSLEY, al., Appellants, et
Patrick CORNING
PITTSBURGH
CORPORATION,
Respondent.
No. C3-86-1429. Minnesota. Appeals
Court 24,
Feb. 23, 1987. April
Review Denied
137 LaVerdiere, Hastings, appel- Hosley’s injury.1 jury to allo- tributed Richard parties nine as follows: cated fault between lants. Buckley, D. Tierney, Eugene T. Patrick 1% Plaintiff Patrick Paul, respondent. St. Pierringer -released defendants Six 58% Johns-Manville Sales 25% Corporation Heard, and decided considered Pittsburgh Corning 10% Corporation CRIPPEN, P.J., and LANSING 100%
NIERENGARTEN, JJ. $350,000, jury awarded which parties is among to be allocated the nine OPINION according percentage their fault: to Patrick 24,500 Plaintiff $ CRIPPEN, Judge. Pierringer-released $203,000 Six defendants an to appeal comes us This Sales 87,500 Johns-Manville Corporation $ Pittsburgh Corning 35,000 Corporation $ Min- and the appeal to court initial $350,000 Court, the a remand to Supreme nesota The court then determined that trial parties appeal the trial Both court. jointly Corning severally liable un- finding of determination that a court’s per- with defendant Johns-Manville for the provi- collectibility under centage of fault attributed to Manville. 604.02, subd. sion of Minnesota Statutes § 604.02, (1984). 1 See Minn.Stat. § (1984) party premature applied 2 as to a Next, the maximum determined to to who was not the transaction $87,500 amount of affirm. the lawsuit. We damages that assessed share of could be against plaintiff Patrick if the obli- FACTS un- gation proves to be I. INITIAL JUDGMENT reallo- meaning of the collectible within liability action was products This provision of the Minnesota statute cation thirteen brought against manufacturers damages.2 governing apportionment of court severed products. asbestos trial Hosley’s determined share The court defendants, all two of the $8,166.67, on the damages is based these Corporation and Un- Johns-Manville Sales following allocation: Industries, reorga- which had filed for arco Chapter the federal
nization under 11 of (7/75ths) 8,166.67 Plaintiff Patrick Hosley $ Bankruptcy Reform Act of 1978. Plaintiff Pierringer -released defendants Six (58/75ths) $67,666.66 re- Hosley settled with six of the seven Corporation through Pierringer re- maining defendants $11,666.67 (10/75ths) Pittsburgh Corning Corpora- leases; only $87,500.00 exposed liability in the tion remained to lawsuit. Pitts- Finally, the determined judg- Corning faced an burgh enforceable permitted jury to con-
The trial court
$114,333.33, including
parties
all the
who con- ment
the fault of
sider
year
one
Upon
made not later than
required by previous deci
motion
procedure is
1. This
entered,
shall de-
Supreme-
Court.
the court
Minnesota
sion of
"
after
negligence,
jury
eq-
apportioning
party’s
must
part
all
of a
whether
or
*[W]hen
termine
negligence
opportunity to
consider
have
of the
is uncollectible
uitable share
transaction,
or not
parties to the
whether
of all
any un-
party and
reallocate
shall
from
they
parties
whether or
be
to
lawsuit and
parties,
among
other
amount
collectible
* * *
they
plaintiff
can be liable to the
fault, according to
including a claimant at
’’
prior
Ryan, 272
release.’
v.
of a
Lines
because
percentages
respective
fault. A
their
896,
(Minn. 1978) (quoting with
N.W.2d
902-03
liability is
is nonetheless
reallocated
whose
Equipment
approval Connar v. West Shore
continuing
any
subject
to
to contribution and
660,
42,
Milwaukee,
44,
Wis.2d
227 N.W.2d
68
judgment.
to the claimant on
(1975)).
Snelgrove,
Frey
also
269
See
(1984).
subd. 2
Minn.Stat.
(Minn.1978).
provides:
The reallocation
(1) $35,000
jury
according
allocated
The supreme court remanded for modifi-
Pittsburgh Coming’s percentage
to
cation
stay.
of the
The court did not decide
fault,
$11,666.67
(2)
under
joint liability for dam-
what circumstances Johns-Manville’s
Johns-Manville,
ages
would be
attributable to
uncollectible so that
obligation could
Instead,
be reallocated.
amount that would
reallocated
Pitts-
required
the court
burgh
proceedings
*3
Coming according to the statute on
on
subject. Pittsburgh
that
Coming then
obligations,
(3) $67,666.66,
uncollectible
and
moved
a
for
trial court determination that
Coming's
joint liability
based on
604.02,
under Minn.Stat.
subd.
the
§
obligation
repre-
for the Johns-Manville
and
portion
liability
of
Johns-Manville
was un-
senting
portion
liability
the
of
that
In response,
sought
collectible.
Hosley
en-
would be reallocated to the other six re-
of Pittsburgh Coming’s joint
forcement
lia-
leased defendants.
court stayed
The
Hos-
bility.
ley’s
Pittsburgh Coming’s
enforcement of
joint liability to the extent of his realloca-
Upon presentation
request
aof
for statu-
share, $8,166.67,
tion
pending final decision tory reallocation, the trial court found the
on
obligation
whether the Johns-Manville
presented,
issue
prematurely
was
for two
First,
reasons.
Johns-Manville
was
a
judgment
to the suit
and
for dam-
ages
yet
against
had not
been entered
it.
Subsequent Legal
II.
History
Second, there was no current credible evi-
judgment
appealed
was
to the Min
showing
dence
against
creditors remedies
Appeals
nesota Court of
and the Minnesota
would be
Following
futile.
Supreme
Court. See
v. Armstrong
court,
of
supreme
directive
the trial
Co.,
(Minn.Ct.App.1985),
Cork
Pierringer releases did not joint waive lia- supreme As a result of the opin- court’s bility among the nonsettling defendants. ion and the trial court's on decision re- Hosley, 383 supreme N.W.2d at 292. The mand, Hosley cannot recover on the full agreed court also that the reallocation stat- Pittsburgh Coming’s joint extent of liabili- applied ute to the transaction so ty. Because the trial court’s decision finding uncollectibility require would leaves pros- uncertain and undefined the liability reallocation of resting otherwise pects determining for when Johns-Man- Pittsburgh Corning, joint with based on its obligation ville’s ever will be deemed col- liability exposure. Id. at 293-94. lectible without an actual collection of funds, Hosley resulting understands his supreme court reversed the trial pursue recovery burden to from Johns- only court’s order to stay portion Manville and to nonrecovery. bear risks of liability Johns-Manville’s that would be Hosley appeals, contending the Johns-Man- reallocated to under the on obligation ville should be found collectible obligations. uncollectible The court con- lifted, stay judgment per- thus cluded that the Pierringer releases barring manently finding of uncollectibili- covered all claims the released de- ty. Alternatively, Hosley claims the Johns- fendants, including por- their reallocated obligation Manville should be deemed col- tion the uncollectible of anoth- lectible because the motion statutory for Thus, er defendant. supreme timely. reallocation was not $75,883 held that Pittsburgh Coming judgment should have been Pittsburgh Coming also contests the tri- stayed, representing Hosley’s an amount decision, court’s contending al that further and the released delay defendants’ shares of respecting rights its under the liability. reallocation statute is an ap- unworkable Next, argues contends the motion to deter- proach. presently un- untimely mine very that it for the reason permanently disregarded. collectible should be This suit and is not bound not a to the statute, has no merit. Under the existing judgment. the motion made year must be one within after is entered. Minn.Stat. immediate Thus, seek an parties both (1984). case, In rights. final their Based determination period bringing time did not motion court, stated on rationale begin stay appeal pending run until the deny Pittsburgh we affirm its decision to was lifted court’s Coming’s request reallocation but to Respondent brought on decision. the motion enforcement dam- $75,883. ages of two filing within months of the date of the supreme court’s decision. The motion was
ISSUE timely. statutory Is it to reallo- premature seek Corning objects 2. to uncer- party cation of fault of a to the transaction tainty obligation as to its while the issue of party is to and whose who not a the lawsuit uncollectibility remains Be- unresolved. by judg- liability has not been determined stayed cause the court has enforce- trial ment? Coming’s judgment ment of obli- much question Pittsburgh gation, there is some if ANALYSIS Corning any way aggrieved by is in 1. Hosley claims Johns-Manville’s obli- Nevertheless, trial Corn- court’s decision. gation must deemed collectible because be ing finding wants an immediate that Johns- presently there it uncol- is no evidence is uncollectible; portion Manville’s is it con- lectible. applica- tests trial court’s decision that provision The does not indi- premature. is Even tion the statute disregard justification permanent cate though preferred by Pittsburgh the stay is stay pend- potential uncollectibility. makes, over the demand ing appropri- a decision on reallocation was judgment dis- preference is to have by the ate was decided su- when stayed charged extent to the court, now, preme appropriate it remains amount. may it unless appropriate remain to unable court believed it was against until Johns-Manville are le- eq- Johns-Manville’s determine whether gally actually collected. determined It Hosley’s dam- uitable share of has not been shown that the Johns-Manville ages is uncollectible “because Johns-Man- not will become uncollectible. prior judgment.” is not ville bound appreciate significance We of the stated, statutory “implicit The court in the stay limiting Hosley’s rights, perhaps in ‘uncollectibility’ legal right to term is the against permanently. If his claim Johns- judgment has entered collect.” No been uncollectible, to Manville is found be Hos- point against and so at this (to ley judgment his the extent the will lose right The trial legal there is no to collect. uncollectible), up to the is that, concluded, “any court determination stay. and until that amount of the Unless time, money will some amount of at some occur, Hosley may face a con- finding does pre- is uncollectible from Johns-Manville currently is tinuing stay as ordered.3 mature.” Nevertheless, it is to us that the evident Coming’s argument is that continuing trial court’s decision for a legal are very proceedings fact that supreme the earlier was mandated judgment to a needed determine conclusion. Furthermore, exposure suggestion law similiar to common even if were a technical there at past provision, Hosley, See contribution claims. 364 to look the reallocation reason (court opinion). having appeals majority in to face the 816-17 would result procedure is shows that has been established. The court present uncollectible Pitts- at moment. type proceeding concluded this does not burgh Corning made the same to uncollectibility, establish and this view was court, supreme which deferred to the not an abuse discretion. trial court to assess the situation. Pitts- any burgh Corning argues that case DECISION involving party a to the transaction but not correctly trial court it concluded that tried, to the action there cause presently premature was to determine uncollectibility. for a determination of whether Johns-Manville’s agree analysis. We with trial court’s uncollectible where Johns-Manville was provision speaks
The reallocation of a tort- a litigation. to the “obligation” “continuing feasor’s and its Affirmed. liability,” any and it is difficult to envision occasion to determine be- LANSING, (concurring Judge specially). legal obligation fore established. Moreover, indicated, as we have we see no Co., In Armstrong Cork prejudice Pittsburgh Corning in the trial (Minn.1986), supreme N.W.2d 289 court’s decision. declined to hold as a matter of law that share Pittsburgh Corning points out On Pittsburgh Corning brought remand spoke of trial court realloca- motion under Minn.Stat. proceedings tion and a determination to be *5 (1984),to determine Johns-Manville’s share on whether an made is uncollect- trial court denied the (Hosley, “at that time” ible at motion. 294), suggesting that a decision on realloca- tion must made when motion for I affirming concur the trial court’s may is made. This implicit holding that motion not time-
favor more than Corn- explicit holding barred and its deter- ing, may suggest because it the intent to premature. mination permanently deny reallocation based on the As a party, severed Johns-Manville is not present absence evidence of uncollectibil- prior judgment; bound its actual ity. We do not read into the words “at percentage yet of fault is to be determined. special time” meaning Pittsburgh requirements process of due and Minn. asserts. It is evident suggest Stat. 604.02 would that a deter- only ruled on question aof precede mination should specifically chose not to make a deci- decision on whether it is collectible. on collectibility. sion the issue of
Finally, Pittsburgh Coming is uncollectible pending bankruptcy
because proceed-
ings. The trial court found Johns-Manville insolvent;
had not been declared it is mere- reorganization
ly in and a claims resolution