*1 wrongful attempted action for foreclosure
in Count II. is undisputed
It motion that no for allow- attorneys’ prior
ance fees filed was appeal Having on Count I. declared
the instruments to constitute an install- note, stayed, en-
joined proceeding, the foreclosure and des-
ignated judgment on Count I final for
purposes appeal pursuant to §
RSMo 1978. No reservation the issue of
attorneys’ fees was made the court. allegation respondents are entitled attorneys’ fees on Count as an element in Count II preserve does not
the issue for appeal, consideration on this relating
all issues I having Count been
finally appeal. determined on that
IV
Appellant asks that we reconsider the
holding in Reese I. judgment in Reese final;
I has become we power are without rehearing entertain either or a second
appeal. of the trial court on Count
II is reversed.
All concur. JENSEN,
Ronda G. Plaintiff-Appellant, SERVICES, INC.,
ARA
Defendant-Respondent.
No. 69030.
Supreme Court
En Banc.
Sept. Graeff, Manners,
Michael W. J. Robert Independence, plaintiff-appellant. Carlton, Stephen Carthage, P. fendant-respondent. *2 524, re- Pappas, 684 sen v. S.W.2d
PER CURIAM. a, manded for new trial. appeals Jensen Ronda G. Plaintiff case which award- jury tried judgment in a plaintiff settled her claim After remand wrongful $80,000 damages for the ed her $100,000, Pappas and Jim for against Tasso Karl Jensen. husband death of her cover- of their insurance the limit facts, stipulated by the 10, 1985, pro- September age. On follows: are as against ARA. on her claim ceeded to trial against ARA was sub- cause Plaintiffs dece- February plaintiffs On negligently theory that ARA mitted on the dent, Jensen, in a traffic Karl was killed on motorcycle Pappas park collided with his truck caused Tasso accident when unlighted parked on a rear of an truck a con- Defendant submitted pavement. operated dark street. truck was September tributory fault instruction. On Pappas. Pappas owned Jim Tasso 11, 1985, returned verdict parked accident Tasso Prior to the damages finding her favor pavement of Louis Avenue truck on the $300,000 fault and that the relative totaled magazines into a Joplin so he could load were, respectively, ARA of decedent and shoulder of the road. parked van on the 40% 60%. Services, Inc., belonged to ARA The van Thereafter, prepared pro- two 17, 1981, (“ARA”). February On supplied she posed judgment entries which against Pappas, Pap- filed suit Tasso Jim court. The difference to the trial Jasper County Circuit pas and ARA on the effect of entries was based how two April proceed- of 1983 Court. In the cause calculated, on whether decedent’s fault was ed to trial and resulted in a verdict for all damages or the total amount upon the trial court en- which ARA was merely portion which on judgment. Because of instructional tered set out as fol- The differences are error, liable. judgment by the was reversed appeals court of on December Jen- lows: $300,000 damages Plaintiff’s -120,000 ($300,000 40%) Less decedent’s fault x -100,000 Pappas Less settlement
Judgment against ARA ARA is liable Fault deducted from which $300,000 Plaintiffs -100,000 Less settlement liable ARA can be Maximum which - 80,000 40%) ($200,000 Less decedent’s fault X $120,000 against Judgment ARA method candidly that her admits Plaintiff judgment The trial court entered $80,000 February ARA for damages was counter calculating (Mo. appeals, The court of There the in that case. prescribed method reversed, App.1986), and transferred Appeals Court of Eastern District perceived case here because of conflict used damage formula examined Schaefer, with Schiles v. S.W.2d action when wrongful death in a trial court (Mo.App.1986). opin make use of We had been decedent 2% plaintiff's visiting in Judge ion of James A. Pudlowski following: produced District, quota the Southern without use tion marks. that the claim was dam-
- 250,000
from St.
Settlement
Hos-
Joseph’s
ages
and, instead,
by plaintiff,
sustained
pital
construed it to
ultimate amount at-
1,250,000
Dr,
tributable
of others. The
defendant
Schaefer’s
837.500
interpretation
court bases its
on the stat-
Dr.
Butsch’s fault
legislative history
ute’s
which said that the
Radiology’s
defendant Ernst
125,000 10%
“final
the claimant
reduced
*3
fault
25,000
decedent’s
by the
plaintiff’s
2%
paid
By
for a release....”
using the term “final judgment,” the court
judg-
The Eastern District modified the
Washington
concluded that
legislature
the
using
this formula:
intended the settlement amount be deduct-
reducing
ed after
plaintiff’s compa-
the
30,000
decedent’s fault
2% negligence.
rative
ARA cites us persons” to Scott v. Cascade Struc- those who are not “other tures, 537, (en plaintiff and, 100 Wash.2d perhaps, P.2d 179 de- 1983) support words, the trial court’s and In plain- fendant. other at least Missouri, the Eastern District’s method of calcula- tiff’s fault must be deducted. In There, Supreme tion. Court Wash- the term “claim” is not restricted. Section ington precedent provides agree- refused to follow RSMo “such Washington and, an opinion earlier instead claim the amount.” ment reduce the ... payment meaningless, subtracted the settlement after Unless the modifier is factoring negligence. phrase than Id. term “claim” broader Therefore, majority persons.” 181-82. In its inter- “claim other preted $300,- here, plaintiff’s the contribution statute which said in case claim $100,- pertinent part: “the claim of her the releas- which ing person against persons other reduced 000 must subtracted. paid pursuant agree- the amount to the Washington court’s Secondly, 4.22.060(2)(1981). ment. ...” RCW applied that a when greater recovery Washington Supreme
To the than Court the would receive a key rejected word “claim.” The court he entitled to receive is error. which was fault, they pay plaintiff. opinion, both $333 would Lemos Its reliance But, which reduces if one of the defendants settled with supports the formula $333, comparative fault be- by plaintiffs before trial the same amount, subtracting the settlement recovery depend- fore would differ persuasive authority to This us. used. ing on which method was used in the verdict director Califor- because method, Using plaintiff's the method that California, significantly different. nia jurisdictions which do is correct for among apportions plain- assign percentages tiff, nonsettling those defendants and fendants, plaintiff Be- $666. would receive persons negligence other whose contribut- hold: Cal.App.3d at injury. ed words, other CaLRptr. at 605. In the total fault. The Uniform divides 333.00 Settlement with defendant 666.00 Comparative Fault Act resembles Califor- *4 by requiring apportionment nia’s 333.00 Plaintiffs from nonset- recovery $ claimant, de- third-party each tling defendant. person has been released fendant and who 2(a)(2), liability. UCFA § comparative might why Gustaf- from ask: One 50% son, at how- 661 S.W.2d all, posited that fault used? After we ever, among apportioned only n fault. fault be at This plaintiff is be- was trial and Missouri have those at courts —Vs, fault plaintiff’s amount of cause change rejected invitations to to a nonsettling defendant’s equal to the Schiles, fault apportionment. n amount n . — defendant’s at 276. jury’s allocation. is not to be included This is a subtle but crucial distinction. ARA, Using the method advocated plaintiff ARA a simply assumes that a nonsettling wind- defendant achieves as Mrs. Jensen at fault overall. 40% fault, he Although he is Vsat fall. overall Rather, jury But not. her she is found pay only half that amount. will to be at ARA. One fault vis-a-vis 40% might assume that ARA allowed the fault negligence Pappases placed on its shoul- 500.00 50% 500.00 $ der, assumption. is a but that false 333.00 Settlement jury
verdict director does not allow the from nonset- Plaintiffs recovery $ fault between the and the allocate tling group her. injured combined those who Erhart, 380 424 Mich. We, say: undersigned ju- It does Rittenhouse v. not (1985). 3 rors, n. percentages of fault as assess N.W.2d ARA; Tasso follows: Kurt Jensen 40% attacked The dissent Rittenhouse Pappas Kurt Pappas Jim said It 60%. percent- defendant’s 40%, ARA Jensen 60%. proportionately age is allocated Examining jury at trial. those Michigan A Su- recent speaks Michigan, which instruction used preme recognizes Court distinction. negligence,” we cannot “total combined Using hypothetical, reasoned the court But, applied Mis- wrong.2 as $1,000 say he in dam- who suffers ages and who is n speculate on souri, may logic his fails. One should collect at fault settling de- for the approximately Assuming how a accounts that there $666. Nonetheless, as Missouri’s at are defendants also each fendant’s who are Vs percent says: "[u]sing as the total com- quarrel 100 1. We not 2. It will with the arithmetic proximately — negligence caused = bined practiced Michigan, 1000 333 percent- damage what injury or to the 666, but we also understand the reluc court’s age attributable of such bog example tance down its decimal with J., (Riley, at dissent- plaintiff?" N.W.2d 456 points. ing). apportion does verdict director the total from B $56,667 Recovery but, only apportions instead fault be- tween then con- we must Obviously there is incentive Bfor not to settling parties clude that the fault is divid- settle for what would be fair share of proportionately among parties ed $60,000. trial.3 Similarly, assume does settle Further, plaintiff's we believe that for- $60,000, B for employing plaintiff’s mula is the formula more consistent with yields: method legislature’s purpose passing purpose contribution statute. encourage settlements. See 537.060is to 60,000 B Settlement with Fischer, The New Its Settlement Statute: 40,000 30,000 fault vis-a-vis A 75%
History Effect, (1984). J.Mo.B. A 10,000 Recovery $ If Missouri were to use the formula advo- purpose cated ARA this should be Using ARA’s method causes this: feated. It is intuitive when settle, ponder the they decision to evaluate A vis-a-vis many party’s One factors. vital factor liability. estimation of its own B Settlement with Recovery Assume a case where has been damaged $100,000. Assume a would Obviously, encourages ARA’s method find that defendant A is *5 the obstinate defendant. The benefit defendant B is at fault and that the waiting until a co-defendant settles can be plaintiff is If plaintiff fault. and reason, plain- substantial. For same $10,000 A plaintiff defendant settle for and unwilling accept tiffs will be “fair” set- go trial, B using plain- defendant tlements which later be undermined. will tiff’s formula the trial will arrive at retaining We do not mean that the ARA this amount. settlements; all, formula will end after uncertainty
there is sufficient setting encourage compromise. But its 10,000 with A Settlement settlements, discourage espe- method will 90,000 cially plaintiff and the minor between 30,000 percentage 33’/8% plaintiffs defendants. B fault vis-a-vis from B Recovery judgment We of the trial reverse court and remand with directions enter However, if usewe the method advocated $120,- in sum of ARA, by following will result: in opinion. 000 accordance with our 38 n % percentage plaintiffs BILLINGS, C.J., BLACKMAR, B vis-a-vis HIGGINS, JJ., concur. RENDLEN 30%, 70%, assuming they 3. See the Commissioners’ Comment 2 A means that cannot UCFA, wording "The more follow instructions. different joined injury, whose fault contributed to (such California, Michigan as in instructions smaller the of fault allocated to each jurisdiction) provide UCFA will a different of the other whether or defend- possibility If the that a will allocation. ant." subvert misconstrue the instructions even throwing upon by them B’s fallacy plaintiffs 4. This underscores us, change A disturbs we should our fendant instructions, many fault is fixed no how matter pro- perhaps adopting the UCFA picture. in are 30% is three posal. we should not do limit But what Therefore, jury following times 10%. Mis- recovery because we assume director would in souri’s verdict divide fault will trial, 75%, be mistaken sometimes. such a defendant A 25%. Concluding they would answer contrast, provides In no J., in Section ROBERTSON, concurs result determine a opinion by filed. which to separate in means Rather, equitable share. defendant’s WELLIVER, J., separate in dissents by claim is reduced actual opinion filed. defend- amount. .settlement DONNELLY, J., dissents and concurs of no equitable share is therefore ant’s dissenting opinion of separate relevance; he is from the action dismissed WELLIVER, J. including purposes, allocation all ROBERTSON, Judge, concurring in re- sult. provides that a settle- Section 537.060 Benda, In Gustafson by the claim “shall reduce (Mo. 1983), and Section S.W.2d banc agreement or stipulated amount of the reached 537.060 mandate the conclusion paid, which- of consideration the amount I principal result which be —a the statute greater.” ever is Insofar as fails the test of fairness and lieve both specifically does restrict the term encourages partial settlement law “claim” mean the amount attributable to principal unjustified suits—a result others, appear it would opinion’s jury. reliance on intent construction of Section 537.- a literal only. I therefore concur result reached the conclusion mandates Gustafson, adopted “inso- this Court settlement principal opinion: far Uniform possible” must deducted from (U.C.F.A.), system establishing a Fault Act damage adjustment before pure comparative fault for tort actions percentages of fault. meaning phrase in Missouri. The mandated Were this conclusion possible” subject “insofar as has been the however, and Section Gustafson debate, great and, as was revealed clear- formula would endorse the selected Industries, Lippard v. Houdaille ly Schi Appeals District Eastern Court
Inc., held a
S.W.2d
Schaefer,
bility
producing
injury.
See
result
language
deference to the
Schwartz, Comparative Negligence, sec.
537.060.
Section
(1974
Supp.1981);
206-207
Gar-
rison,
Missouri
Fault Treatise:
WELLIVER, Judge, dissenting.
Practice,
C.L.E.,
Theory and
UMKC
sec. 2.1
I respectfully dissent.
Gus
(1986). Therefore,
plaintiffs
at 3
Benda,
11, 15-16,
n.
tafson
represent
portion
“claim” should
a conclusion
directs
injury
the total
attributable to others.
opin
opposite
principal
that reached
responsibili-
While the
individual
regarding
ion
RSMo 1978. This
ty
injury may
propor-
for his
be viewed as
Robertson,
suggested
opinion
in the
J.
competing
tionate
blameworthiness
concurring in result and in Schiles v.
others,3
logical
axis around which
S,W.2d 254,
Schaefer,
(Mo.App.
275-77
percentages
injury.
of fault
revolve
1986).
Allocation of actual fault
all those
appeals
suggests
court of
plaintiffs injury
who contributed to the
(1)
likely
exception
the rule
that we have two alternatives:
first
than
practice, regardless
figure
our
under
current
deduct the settlement
recovery.
mechanics used
determine
as found
a trial between
potential
Whether a
tort-feasor
absent
apportion plaintiff’s
then
defendant and
from the
distribution
fault because ser-
and defendant's
on the basis of
obtained,
vice cannot be
he has
because
fault found
trial between the two
settled with the
or for
num-
(2)
reduce
as
reasons,
ber of other
his contribution to the
in a
found
trial between
totality of injury-producing negligence by plaintiffs percentage
fendant
Attaching
jury.
unknown
conse-
found,
there
less the settlement.
re-
quence
potential
to the absence of
tort-
spectfully suggest that this case cries out
feasor whose fault
unknown to the
*7
alternative,
for consideration of a third
is
futility;4
jury
an exercise in
a
cannot
6 of
fully
now would
embrace section
it.
consider what it does not have before
(U.C.F.
Act
the Uniform
Fault
A.). Since the third alternative could not
principal opinion
The
bases its conclusion
case,
applicable
it is neces-
part upon
encouraging
in
of
be made
to this
desirability
sary
adopted,
to make an interim
between the
settlements. The formula
how-
choice
cases,
during
principal opinion
per-
as
The
what it
4. In some
where a
settles
underscores
trial,
jur-
to be the
jury
ceives
critical distinction between
of
is
that there
course
aware
assign percent-
isdictions which do and do not
persons
may
are
be at
to whom fault
ages
ample
settling
ex-
of fault to
with an
ultimately
tached than those
considered.
taken from
of the Mi-
a "recent
extent,
Whether,
jury
or to
will "reallo
what
chigan Supreme
hypothetical
Court."
as-
percentages
cate”
of fault to account for
jury’s
sumes that the
assessment of fault made
any
speculative
best.
absent settlor is
parties
relative to the
and that the
event,
left
those
the distribution
relationship of blame between them is constant.
injury
to total
at trial is still made
reference
negligence."
and not "total
U.C.F.A.sec.
comment.
choices,
ap-
by
my only
alternatives discussed
the court of
these
Were
would
any
hold
peals.
settlement amount is to be
subtracted from the
dam-
total
parties
The amount
arrived at
age
after adjusting
award
negotiations
through
constitutes
settlement
recovery,
by
as
determined
with-
estimate,
rough,
however
of the re-
an
settlement,
out regard
intervening
to
“equitable
respon-
of
party’s
leased
share”
This,
his own fault.
opinion,
injury.
of set-
sibility for the
The essence
legislature’s
better reconciles the
directions
settling
tlement
is an estimation
to
537.060 and comes closer maintain-
§
jury might
a
conclude
what
ing
integrity of
jury panel
the Missouri
involving
in a
all of
based
evidence
as
the arbiter of
fault.
willing
parties.
accept
A
to
However,
princi-
neither
the result
now,
knowing
“X” dollars
that a
pal opinion
nor
above result reaches the
might
be more or less. The
real
Applica-
issue involved in such cases.
course,
entertains
converse
adopted
tion of
either
formula
Through arms-length
proposition.
negotia-
or
majority
pro-
herein
the “alternative”
tion, it is
that a
not incredulous to conclude
posed by the
in ad-
Schiles
results
rough
“equitable
estimate of
share” is de-
justing upward or
the re-
downward what
“equitable
rived.
is the
This
share” con-
maining
obligated
pay,
defendants are
templated
2(a)
by sections
regardless
percentages
of their
true
majority
U.C.F.A. The
chose to subtract
One,
cases,
some
more favor-
unadjusted
re-
other,
able
in cer-
covery against
remaining
defendants.
cases,
tain
is more
favorable
those
partial
This
fact is a
application U.C.
unwilling
“gamble”
fendants
on a settle-
F.A.,
section
in a case
where
application
ment amount. The
of either
defendant’s
of fault has not
square
goal
rule
our ultimate
does
with
jury,
been determined
in fact
Justice,
In A Theory
of fairness.
John
unknown.
The method
the majori-
used
“original
or
Rawls states
the basic
ty tends to subvert the
of the jury
role
position”
“justice
begins
as fairness”
apportionment.
arbiter of fault
equal
with
an
with
all individuals on
basis
Promotion of settlements is both the
Rawls, Theory
each
J.
other.
Justice
goal
stated and ideal
537.060. How-
(1971).
ever,
statute,
under the
is forced
advantaged
This ensures that no one
apportion
among “remaining
par-
disadvantaged
princi-
or
in the choice of
ties,”
only on
based
the evidence at the
ples
natural
by the outcome of
chance
subsequent trial. The settling party
contingency
social circumstances.
computation
considered in the
of fault.
no
similarly
all are
situated and
Since
Hence,
prior
settlement with released
design principles
favor
one is able to
tortfeasor
has little
do
with
“claim
condition,
particular
principles
remaining
defendants” from
justice
a fair
are the result of
perspective
of the jury.
I therefore
bargain.
agree
Robertson,
approach
J. that the
Id.
Schaefer,
of Schiles v.
(Mo.App.1986),
considering
importance
is the
the third
way,
better
under
law,
apparent.
totally
current
which a
appor-
claim can be
alternative
*8
tioned
can
distrib-
consistent with the manner
fair
which fault
manner
through ap-
juries
we instruct
to
undertake that
uted in such circumstances
deter-
mination.
Such
Schiles,
plication
As was
of section 6 of the U.C.F.A.
observed
change
“fact of settlement”
application places
settlement should not
“[t]he
damages
footing, making more
recover,
amount of
a
neutral
it
can
on more
appealing
it should
insofar as
reduce the amount
and
that the
desirable
“In
non-settling
responsible
case
concerned.
defendants are
merits of the
are
system]
for.” Id.
277. 6.
should strive for
a ...
[tort
‘in assigning rights
person
and duties and
and
who has been released from
fairness
defining
appropriate
division of so-
liability under subsection 3 of this sec-
”
advantages.’
Lippard
cial
v. Houdaille
tion.
Indus., Inc.,
(Mo.
banc
J.,
1986) (Donnelly,
dissenting) (quoting J.
release,
Any
sue,
covenant not to
or
Rawls,
(1921))(em-
Theory
Justice
similar
entered
into
a
added).
phasis
person
claimant
or entity against
and
among
It should be noted that
other
which a
arising
claim asserted
out of
things,
537.060 made no mention of
§
alleged
transaction which is the basis
whether
defendant should re-
action,
for
cause of
whether
main in the
for
purpose
action
the sole
actually
party
made a
to the action or
having
his
liability,
“eq-
not,
person
discharges
entity
or
détermined,
uitable share”
our only law on
from all
for
or in-
contribution
being
subject
Maryland
State
rel.
ex
demnity
discharge
but it does not
other
Heights Contractors,
Inc.,
Ferriss,
v.
persons or
upon
entities liable
such claim
(Mo.
1979),
S.W.2d 489
banc
a case decided
provides. However,
unless it so
after Missouri
R. R. v. Whitehead
Pacific
claim of
releasing person against
oth-
Kales,
(Mo.
and
reallocation By doing, take a so this Court would (2) is filed the If such motion major step in the direction of total fairness part all or of a shall determine whether system, goal all in the tort the ultimate obligation party’s equitable share existing and our tort reform. The statutes party, and shall uncollectible totally harmonized. case law would be any amount reallocate uncollectible including a among the other fault, according to their re-
claimant at fault;
spective percentages of
(3) party whose uncollectible is reallocated is nonetheless sub- continuing
ject and to to contribution judgment;
liability to claimant (Vernon) (to Mo.Legis.Serv. No. be MARYLAND STATE ex rel. HEIGHTS 1987). renumbered RSMo § DISTRICT, a FIRE PROTECTION The two instances where the described subdivision, Relator, political legislature adopted approach the U.C.F.A. directing together legislature CAMPBELL, L. Robert Honorable product cases under Court, Judge, Louis Circuit suggests gap that we should fill the Respondent. County, open legisla- left where the ture failed state whether 69094. No. parties should for the remain action Supreme Court determining purpose their En Banc. equitable All of fault —their share. existing contradictions and confusion now Sept. changes legislative reason of the can be Rehearing Oct. Denied simply stating removed our and direct- 1, 1988,
ing January from and after multiple
all cases one or where has settled with either trial,
prior during made a may
fendant shall remain as purpose the action for the sole
having party’s per- determine the
centage doing, By of fault. so all settle-
ments thereafter would be handled and 6 of in accordance with section
credited
U.C.F.A. should state that cases We prior January
tried the court
may utilize course, procedure. recognize,
this provisions 538.230 and 537.067 §§ holding
and the should
apply resulting to a cause action
negligent February parking of a truck on