71 Misc. 2d 997 | N.Y. Sup. Ct. | 1972
Third-party defendants, Sheldon and Fanny Safer, have brought on a motion to dismiss the third-party complaint in action number one. This motion raises important questions regarding the application of the apportionment principles set forth in Dole v. Dow Chem. Co. (30 N Y 2d 143) and Kelly v. Long Is. Light. Co. (31 N Y 2d 25).
On June 16,1967 two motor vehicles collided on Saxon Woods Road in the City of White Plains. Vehicle number one was operated by Sheldon Safer, son of the absentee owner Fanny Safer. Plaintiffs Marc Liebman, Michael Ende and Carl Lombardi, Jr-.
On June 18,1968 the court (Dillon, J.) issued an order directing a joint trial of the separate actions. Thereafter, plaintiffs in Action No. 3 (Elide and Lombardi, Jr.) moved for leave to serve a supplemental summons and amended complaint to join the Safers as party defendants. The court (Marbach, J.) granted the application but by an unexplained procedure the new cause of action became Action No. 6- Subsequently, plaintiffs in Action No. 3 moved to consolidate action number 5 with the other actions. The court (Slifkin, J.) granted the motion to the extent that “ a joint trial be had of the several actions ”.
In the latter part of March, 1972 the matter was assigned for trial and a bifurcated trial was directed. Prior thereto, plaintiff Liebman discontinued his action against the municipalities and real property owner,
action parties juey veediot
No. 1 Liebman v. Scott, Olson for plaintiff
& Gordon Stationers,
Hertz Corporation
No. 2 Safers v. same defend- no cause of action ants as in Action No. 1 and County of Westchester, City of White Plains, Noonan
No. 3 Ende and Lombardi, Jr. v. same defendants as in Action #2 for plaintiffs against Scott, Olson & Gordon Stationers, Hertz Corp. only
No. 4 Scott v. Safers no cause of action
No. 5 Ende and Lombardi, Jr. for plaintiffs v. Safers
The damage aspect of the matter was set down for trial during the September, 1972 Term.
To recapitulate, Sheldon and Fanny Safer, the third-party defendants, now move to dismiss the third-party complaint in Actinia No. 1. The third-party plaintiffs contend that the court can fashion a remedy whereby the jury that passes upon damages can also decide the question of apportionment. The third-party defendants urge that no exceptions were taken to the Trial Judge’s charge which charge now constitutes the law of the case, thereby precluding assertion of the third-party claims. Additionally, said defendants argue that the doctrine of res judicata applies, and, further, that a third-party complaint may not issue at this stage of the proceedings. Plaintiff Liebman joins in the motion to dismiss the third-party action on the ground that the proceedings on damages will be delayed if a jury must pass upon the apportionment question.
It must be noted at the outset that application of the Dow principles to the matter at bhr does not raise any issue of retrb
Before discussing this very important issue, the court shall address itself to the other contentions presented by the parties. First, it is immaterial whether the doctrines of res judicata or collateral estoppel apply to the verdict portion of the case (cf. 8 Carmody-Wait 2d, New York Practice, § 63:19), since it is conceded that the findings on negligence may not be relitigated in this forum. The determinations on negligence constitute the “ law of the case ” for purposes of the second phase of the trial (1 Carmody-Wait 2d New York Practice, ■§§ 2:64-2:69). Secondly, absent a statute of limitations problem (cf. Musco v. Conte, 22 A D 2d 121), third-party practice is permitted by statute at any time after service of an answer (CPLB 1007). Nonetheless, it has been held that a third-party complaint may not issue during trial unless a court order is obtained (Acetate Box Corp. v. Johnsen, 193 Misc. 54; see Melino v. Tougher Heating & Plumbing Co., 23 A D 2d 616; 3 Carmody-Wait 2d, New York Practice, § 19:11). However, research has failed to elicit a situation where, as here, process was served during a hiatus in the split trial. Accordingly, the court declines to adjudicate the question of timeliness on such tenuous grounds. For the purposes of this discussion it shall be presumed that the third-party complaint was properly served within the meaning of CPLB 1007.
Consequently, this case raises broad ancillary questions regarding implementation of the apportionment rules at split trials. It is noteworthy that apparently only one other jurisdiction in the United States weighs relative degrees of fault among tort-feasors in the absence of a comparative negligence scheme that would include plaintiffs (6 Del. Code Ann., tit. 10, § 6302, subd. [d]). The cited statutory provision is not mandatory and the court in the first instance determines whether the
In this jurisdiction comparative negligence is not yet the law and there is a policy in this department to split tort trials. Hence, the question arises at which stage of the split trial should the apportionment charge issue. Third-party plaintiffs herein contend that such charge may properly be given at the damage phase of the proceedings. However, the consensus of the Trial Judges at the present time is to use a two-step charge, whether or not the trial is split (Nathaniel T. Helman, New York Contributory Negligence: The Future Course of “ Dole ”, N. Y. L. J., Sept. 18,1972, p. 1, col. 3). Thus, in a case where a single plaintiff .sues two defendants the present scheme is to charge the jury pursuant to somewhat modified pre-Dow principle^ and if they return a Verdict .against bpth defendants to reinstruct them on the apportionment rules and obtain a second verdict allocating responsibility. In the case postulated it is .assumed that an apportionment request was made, although Dow may be read as mandating apportionment even in the absence of appropriate pleadings (see Lipson v. Gewirtz, 70 Misc 2d 599; cf. Joseph M. McLaughlin, Supplementary Practice Commentary, McKinney’s Cons. Laws of N. Y. Book 7B, CPLR 1007; 1972-1973 Annual
In a third-party situation the process of allocating responsibility may seem somewhat more complex, but the above rationale mandates adherence to the principles we have considered. The court will charge the jury simultaneously regarding liability of the prime defendants and the responsibility over of the third-party defendants under pre-Dow rules, except that the active-passive principles will not be charged as formerly. Thereafter, if the jury finds all such parties responsible, they will next be instructed to allocate fault: first, between the prime defendants at 100%; and, second, between the impleaded parties and their impleader at 100%.
If my understanding of the Bow-Kelly rationales is correct, it becomes apparent that the only type of apportionment upon which a jury could express itself at the liability phase is percentage allocation. Thereafter, upon the damage aspect of the case, the jury will return one monetary verdict in either a joint defendant situation or third-party action and the court will cal- - culate the appropriate sums for apportionment purposes (cf. CPLR 4533-b).
To summarize, it is the court’s opinion that, in split trials, the two-step percentage allocation charge is preferred, but that is not to say that it must be followed in every case. One can envision many situations where it would be inappropriate or impossible to utilize this procedure. For example, where liability is
In the case at bar, third-party plaintiffs urge that, if the apportionment question is tried before the jury that will assess damages, all issues in this case will have been, resolved. However, the parties have not as yet instituted third-party proceedings in Actions Nos. 3 and 5. It will be recalled that despite Hr. Justice Habbach’s decision granting leave to join the Safers as party defendants in Action No. 3, the parties therein treated the addition of the Safers as a separate aption. This view is re-enforced by the subsequent order which directed that Action No. 5 be jointly tried with Actions Nos. 1 through 4, and, of course, the existence of separate verdicts.
The parties are deemed to have chartered their own procedural course (Stevenson v. News Syndicate Co., 302 N. Y. 81, 87; Riemer v. Riemer, 31 A D 2d 482, 488; Davis v. Ross, 259 App. Div. 577, supra) and for all intents and purposes Actions Nos. 3 and 5 must be deemed separate proceedings. This fact leads to problems which will tend to complicate the trial on damages.
Furthermore, if the court permitted, the third-party action to stand, plaintiff Liebman could request leave to amend his complaint to assert a cause of actipn against the Safers (’CPLR 1009) and, absent a Statute of Limitations problem, could attempt to use the prior verdict obtained by his copassengers against the Safers in his own behalf (cf. Miraglia v. Miraglia, 106 N. J. Super. 266). Of course, the fact that Liebman has not amended his complaint to assert a claim against the Safers does not prevent a determination on apportionment (Brown v. Haertel, 210 Wis. 354).
It is clear that the issue of apportionment before a different jury will necessitate a virtual retrial of the negligence claims in order to determine relative degrees of fault. Additionally the Safers may desire to implead others. Moreover, the apportionment problems in Actions Nos. 3 and 5 will not have been solved. Accordingly, better procedure dictates that the parties in the third-party action (and the potential impleader action) get their pleadings in proper order and that the assessment aspect of this trial be tried immediately. The third-party complaint is dismissed without prejudice and the matter restored to the head of the ready day calendar. The stay contained in the order to show cause shall terminate upon entry of the order hereon.
. Coplaintiffs Sidney Ende and Carl Lombardi sued in their derivative capacity but for the purposes of this motion and ease of description their causes of action may be disregarded;
. The action included Edward Safer as guardian for Sheldon Safer. Additionally, Fanny Safer asserted a cause of action for property damage and the Trial Judge directed a verdict thereon in her favor against the defendants Scott, Olson and Gordon Stationers and the Hertz Corporation.
. The propriety of Liebman’s discontinuance against some but not all defendants has not been raised by the parties. However, in light of Dow it has been noted that the rules pertaining to standing to appeal by one defendant from an order exonerating a codefendant may have to be re-examined (Joseph M. McLaughlin, Supplementary Practice Commentary, McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 1007, 1972-1973 Annual Pocket Part, p. 80). Consequently, the holding in Dee v. Spencer (233 App. Div. 217) that during trial plaintiff could not voluntarily agree to a nónsuit in favor of one of the defendants, may have been resurrected by the Dow ruling (see CPLR 3217, subd. [b]). In any event, a defendant in a separate action lacks standing to object to plaintiff’s discontinuance as to a defendant in a different action, although the actions are jointly tried (Turk v. Beebe Sen. Corp., 267 App. Div. 767).
. The record does not indicate why the trial on damages was delayed.
. The court is not called upon to answer the question whether Bow applies in the absence of appropriate pleadings. Unquestionably, Bow may not be read as requiring apportionment where, as here, the parties seeking apportionment are not codefendants as to each other with the exception of the third-party claim which injects Bow into the case.
. In a joint defendant context one party may raise the issue that CPLK. 1401 pre-empts the field. However, it would seem that Bow and Kelly merely give sustenance to the phrase “ pro rata share ” as contained in the cited statute.
. A single charge on liability and apportionment with concomitant use of special verdicts should be avoided. Special verdicts (requiring answers to specific questions) tend to confuse the jury (cf. David D. Siegel', Supplementary Practice Commentary, McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 4111,1972-1973 Annual Pocket Part, pp. 55-58).
. In a joint defendant contribution context the former rule was that a judgment on liability and damages could not be collaterally attacked (Employers' Liab. Assur. Corp. v. Post & McCord, 286 N. Y. 254). However, the party from whom contribution was sought could defend on the ground that he was not in pari delicto (West v. City of New York, 276 N. Y. 524; Security Mut. Cas. Co. v. American Ice Co., 268 App. Div. 924; cf. Wold v. Grozalsky, 277 N. Y. 364). In those jurisdictions which permit contribution in the absence of a joint judgment, the questions open for litigation among the defendants in the contribution proceeding depend upon their participation at the original trial (see Mikens v. Marascio, 58 N. J. 569; Cook v. Toney, 245 Md. 42; Sattelberger v. Telep, 14 N. J. 353; East Coast Freight Lines v. Mayor, Etc., 190 Md. 256). In a post-Dow matter where one party seeks proportionate indemnity the extent of the defendant’s participation at the original trial may be the deciding factor in determining what issues can be relitigated (see Cooperman v. Ferrentino, 37 A D 2d 474; id. 38 A D 2d 945; Gallivan v. Pucello, 38 A D 2d 876). Noteworthy, however, are the former rules regarding common-law indemnity actions which may remain viable in third-party actions such as at bar. Absent vouching-in (Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y.
. Indeed, prior to Dow, it was held erroneous to permit the jury to apportion compensatory damages among joint tort-feasors (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Polsey v. Waldorf-Astoria, 216 App. Div. 86, app. dsmd. 243 N. Y. 553; Foy v. Barry, 159 App. Div. 749). The apportionment was treated as mere surplusage and judgment entered in the greater amount awarded where the separate verdicts were unequal (Farber v. Demino, 254 N. Y. 363; Klepper v. Seymour House Corp., 246 N. Y. 85; Beal v. Finch, 11 N. Y. 128; Raplee v. City of Corning, 6 A D 2d 230; contra, Wands v. City of Schenectady, 171 App. Div. 94) even where the record established that plaintiff was to recover the aggregate individual amounts (O’Shea v. Kirker, 4 Bosw. 120). Where separate verdicts in equal amounts were returned by the jury, judgment was entered in the aggregate (Hanley v. Brooklyn Heights R. R. Co., 127 App. Div. 355; Post v. Stockwell, 34 Hun 373; Carrig v. Oakes, 173 Misc. 793, affd. 260 App. Div. 989).
. For example, P v. Di and D2; D2 impleads D3 and D4. Jury first finds that P should recover against Di and Dg; it also concludes that Dg should recover over against both Ds and D4. The jury is next charged on apportionment and returns the following percentages: (1) Di (20%) and Dg (80%); and (2) Dg (10%), Ds (40%) and D4 (50%).- Thus, Dg recovers 72% (.80 X .90) of his
. Separate actions against different joint tort-feasors are permissible (Commissioners of State Ins. Fund v. Farrand Optical Co., 295 N. Y. 493). However, the payment of one judgment represents full satisfaction (Dahlstrom v. Gemunder, 198 N. Y. 449; Bundt v. Embro, 27 A D 2d 931, affd. 21 N Y 2d 1032; Bundt v. Embro, 48 Misc 2d 802; McTigue v. Levy, 260 App. Div. 928; Foy v. Barry, 159 App. Div. 749; CPLR 3002, subd. [a]; cf. General Obligations Law, § 15-102; General Obligations Law, § 15-108, added by L. 1972, ch. 830) and it has been held that payment into court by a party constitutes a satisfaction (De Casiano v. Morgan, 1 A D 2d 646, mot. for lv. to app. den. 3 A D 2d 651; De Casiano v. Morgan, 6 Misc 2d 41, app. dsmd. 8 A D 2d 609; Sarine v. American Lumbermen’s Mut. Cas. Co., 258 App. Div. 653; Collins v. Smith, 255 App. Div. 665; see Schultz v. Baker, 273 App. Div. 186; Knickerbocker v. Colver, 8 Cow. 111; compare Civ. Prac. Act, § 530, subd. 4 with CPLR 5021, subd. [a], par. 3; contra, Ann. 40 ALR 3d 1181 “One Joint Tortfeasor Pays Judgment — ■ Effect ”; also, see, Prosser, Law of Torts [4th ed., 1971], p. 300; note, 68 Harv. L. Rev. 697 [1955]). Thus, the rule has evolved that in cases of vicarious liability with no punitive damage aspect the first judgment on damages controls the outer limit of the second judgment where the first is against the primary wrongdoer (Gallivan v. Pucello, 38 A D 2d 876; Goines v. Pennsylvania B. R. Co., 6 A D 2d 531, mot for lv. to app. dsmd. 5 N Y 2d 1002; Sarine v. American Lumbermen's Mut. Cas. Co., supra; All v. Delaware
. In apportioning liability under CPLR 1401 the former rule was "that defendants would be treated as a class or unit where liability was derivative (Zeglen v. Minkiewicz, 12 N Y 2d 497; McCabe v. Century Theatres, 25 A D 2d 154, affd. 18 N Y 2d 648; Benjamin v. Faro, 1 A D 2d 948; Martindale v. Griffin, 233 App. Div. 510, affd. 259 N. Y. 530). Comparative negligence literally requires weighing the relative degrees of fatilt of each tort-feasor individually (C. Heft and C. Heft, “Two-Layer Cake: No Fault and Comparative Negligence ”, 58 ABA J. 933 [1972]; cf. Ann. 8 ALR 3d 722 “ Comparative Negligence- — Multiple Tortfeasors”). However, in Kelly the Court„,of Appeals indicated that it was not changing the principles applicable to vicarious liability cases (31 N Y 2d, supra, at p. 30).
. Former rule 56 of the Admiralty Rules (now Fed. Rules Civ. Pro., U. S. Code, tit. 28, appendix, rule 14) provided that once implea-der occurred plaintiff’s complaint was deemed amended to assert a cause of action against the third-party defendant. Cf. section 315 (subd,_d, par. 3) of the Maryland Rules of Procedure [9B Md. Code Ann.] which provides that if plaintiff fails to amend his complaint against the impleaded party he is thereafter barred from presenting the same claim in a plenary action (State Farm Mut. Auto. Ins. Co. v. Briscoe, 245 Md. 147).