Metro Aviation, Inc. v. United StatesMetro Aviation, Inc. v. United States
For Defendant: Stuart F. Delery, Acting Assistant Attorney General, U.S. Department of Justice, Washington, District of Columbia; David B. Barlow, United States Attorney, Jeannette Swent, Assistant United States Attorney, District of Utah, Salt Lake City, Utah; Steven A. Kirsch (argued), Jill Dahlmann Rosa, United States Department of Justice, Washington, District of Columbia.
For Amicus Montana Defense Trial Lawyers: Nicholas J. Pagnotta (argued), Williams Law Firm, Missoula; Dale R. Cockrell, Moore, Cockrell, Goicoechea & Axelberg, P.C., Kalispell.
For Amicus Montana Trial Lawyers Association: L. Randall Bishop (argued), Bishop & Heenan, Billings; Lawrence A. Anderson, Attorney at Law, Great Falls.
JUSTICE COTTER delivered the Opinion of the Court.
¶1 We accepted certified questions from the U.S. District Court for the District of Utah, which we have reformulated in accordance with
¶2 May a person who has settled a claim with a victim then bring an action for contribution against a joint tortfeasor under
¶3 Where a defendant in a pending action enters into a settlement with the plaintiff in advance of trial, does
¶4 Does Montana recognize a common law right of indemnity where the negligence of the party seeking indemnification was remote, passive, or secondary, compared to that of the party from whom indemnity is sought?
¶5 We answer no to each of these certified questions.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 In February 2007, a small plane owned by Metro Aviation, Inc. (Metro) crashed near Bozeman, Montana. The pilot, who was an employee of Metro, and both passengers, Paul Erickson and Darcy Dengel, died in the crash. All three were Montana residents. Following the accident, Erickson‘s estate filed a claim with Metro‘s insurers. (Metro and its insurers will be referred to collectively as Metro.) Metro settled Erickson‘s claim without litigation (Erickson claim). Dengel‘s estate filed suit against Metro (Dengel action)
¶7 Metro then filed suit under the Federal Tort Claims Act against the United States in the U.S. District Court for the District of Montana, alleging negligence by the Federal Aviation Administration (FAA) air traffic controllers at the air traffic control center in Salt Lake City, Utah (where Montana air traffic is controlled). Metro asserted alternative claims of indemnity and contribution and sought to recover, among other losses, the settlement amounts paid to the Erickson and Dengel estates. The United States moved to have the case transferred to the U.S. District Court for the District of Utah and the court granted the motion.
¶8 The United States moved for partial summary judgment on Metro‘s indemnity and contribution claims asserting that under both Utah and Montana law, these claims are barred. Metro concurred that Utah law bars these claims but argued that Montana law applies and allows the claims. The federаl Utah court concluded that Montana law is applicable but that Montana law in this area is unsettled. For this reason, the court certified the above-referenced questions of law to the Montana Supreme Court. We accepted the court‘s certified questions by Order dated July 31, 2012. Oral argument was held on May 14, 2013.
STANDARD OF REVIEW
¶9 When answering a certified question as permitted by
DISCUSSION
¶10 This case raises questions pertaining to the rights to contribution and indemnity. The right of contribution is established by statute, while the right to indemnity invokes equitable principles. State Farm Fire and Cas. Co. v. Bush Hog, LLC, 2009 MT 349, ¶ 6, 353 Mont. 173, 219 P.3d 1249. Contribution and indemnity are similar in that the essential purpose of both is to shift one‘s losses to another. Bush Hog, ¶ 6. The objective of contribution is to allocаte liability among all responsible parties. Bush Hog, ¶ 7. Contribution distributes loss among joint tortfeasors by requiring each tortfeasor to pay his or her proportionate share based upon his or her proportion of the negligence which proximately caused the plaintiff‘s injuries. Durden v. Hydro Flame Corp., 1999 MT 186, ¶ 25, 295 Mont. 318, 983 P.2d 943. Conversely, indemnity “shifts the entire loss from the one who has been required to pay it to the one who should bear the loss.” Durden, ¶ 25. (Emphasis added.) With these principles in mind, we first address the certified questions pertaining to contribution.
¶11 May a person who has settled a claim with a victim then bring an action for contribution against a joint tortfeasor under
¶12
(1) Except as provided in subsections (2) and (3), if the negligеnce of a party to an action is an issue, each party against whom recovery may be allowed is jointly and severally liable for the amount that may be awarded to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of.
(2) A party whose nеgligence is determined to be 50% or less of the combined negligence of all persons described in subsection (4) is severally liable only and is responsible only for the percentage of negligence attributable to that party, except as provided in subsection (3). The remaining parties are jointly and severally liable for the total less the percentаge attributable to the claimant and to any person with whom the claimant has settled or whom the plaintiff has released from liability.
(3) A party may be jointly liable for all damages caused by the negligence of another if both acted in concert in contributing to the claimant‘s damages or if one party acted as an agent of the other. (4) On motion of a party against whom a claim is asserted for negligence resulting in death or injury to person or property, any other person whose negligence may have contributed as a proximate cause to the injury complained of may be joined as an additional party to the action. For purposes of determining the percentage of liability attributable to each party whose action contributed to the injury complained of, the trier of fact shall consider the negligence of the claimant, injured person, defendants, and third-party defendants. The liability of persons released from liability by the claimant and persons with whom the claimant has settled must also be considered by the trier of fact, as provided in subseсtion (6). The trier of fact shall apportion the percentage of negligence of all persons listed in this subsection. Nothing contained in this section makes any party indispensable pursuant to Rule 19, Montana Rules of Civil Procedure.
(5) If for any reason all or part of the contribution from a party liable for contribution cannot be obtained, each of the other parties shall contribute a proportional part of the unpaid portion of the noncontributing party‘s share and may obtain judgment in a pending or subsequent action for contribution from the noncontributing party. A party found to be 50% or less negligent for the injury complained of is liable for contribution under this section only up to the percentage of negligеnce attributed to that party.
....
(6)(c) Except for persons who have settled with or have been released by the claimant, comparison of fault with any of the following persons is prohibited:
(i) a person who is immune from liability to the claimant;
(ii) a person who is not subject to the jurisdiction of the court; or
(iii) any other person who could have been, but was not, named as a third party.
¶13 Acknowledging that the Erickson clаim was settled without any litigation having been filed, Metro urges this Court to broadly interpret the word “action” contained in
¶14 The United States counters that the statute, its legislative history and Montana case law support a conclusion that “a right of contribution exists for parties to a court action only, and must tаke place within the original plaintiff‘s cause of action.” It maintains that the only method provided by the Legislature for exercising the right of contribution against a nonparty is for a defendant to join the “other person” as a party to a case. The United States submits that because Metro settled with the Erickson estate without the commencement of any litigatiоn, Metro was never made “a party to an action” as required by
¶15 Though there have been many revisions to Montana‘s comparative negligence statute,1
person whose negligence may have contributed ... to the injury complained of.” (Emphasis added.) We find no legal support for Metro‘s argument that we should interpret “action” to include the filing of an insurance claim as opposed to the filing of a lawsuit, nor does Metro provide us with any such authority. The body of case law addressing contribution among joint tortfeasors under
¶16 An “action” is defined as “[a] civil or criminal judicial proceeding” in Black‘s Law Dictionary 28 (Bryan A. Garner ed., 7th ed., West 1999). Moreover, among Montana‘s statutes, “action” is defined in various ways including, (1) “a judicial proceeding or arbitration in which a payment in money may be awarded or enforced with respect to a foreign-money claim” (
¶17 Where a defendant in a pending action enters into a full settlement with the plaintiff in advance of trial, does
¶18 We next turn to the question presented with respect to the Dengel action. As noted above, the Dengel estate filed a nеgligence action against Metro, and therefore Metro was a party to a lawsuit as contemplated under
¶19 As noted above, the right to contribution is a strictly statutory right.
¶21 Had the Legislature intended to provide a defendant in a pending action the option to bring a separate subsequent contribution action against a third party, it would have done so. It did not. We will not presume to do so either. Therefore, we answer the second question, as reformulated above, no.
¶22 Does Montana recognize а common law right of indemnity where the negligence of the party seeking indemnification was remote, passive, or secondary, compared to that of the party from whom indemnity is sought?
¶23 Unlike contribution, indemnity “shifts the entire loss from the one who has been required to pay it to the one who should bear the loss.” Durden, ¶ 25. Metro seeks indemnity from the United States, claiming that its own negligence, if any, was remote, passive, or secondary while the negligence of the FAA was active. It argues that “fundamental fairness” dictates that because it is not in pari delicto with the United States, the United States should bear responsibility for the entire amount of the settlements it paid to Dengel and Erickson.
¶24 We reject this argument. In State ex rel. Deere & Co. v. District Court, 224 Mont. 384, 730 P.2d 396 (1986), we observed that fixing responsibility in indemnity actions premised upon active versus passive conduct, was neither “sensible” nor “practical.” Deere, 224 Mont. at 398, 730 P.2d at 405-06. In State v. Butte-Silver Bow County, 2009 MT 414, 353 Mont. 497, 220 P.3d 1115, we held that the State could not obtain common law indemnity from the County, because the State was negligent in part; it lacked “clean hands.” Butte-Silver Bow County, ¶ 33.
¶25 Again, the premise of indemnity is that the other party should bear the entire loss. Indemnity would not be fair or appropriate where both parties allegedly are negligеnt in causing the plaintiff‘s injuries. We have prohibited claims for indemnity between or among joint tortfeasors. Deere; Consolidated Freightways Corp. v. Osier, 185 Mont. 439, 605 P.2d 1076 (1979); see also Panasuk v. Seaton, 277 F. Supp. 979 (D. Mont. 1968). At common law, “if the concurrent negligence of two or more persons causes an injury to a third person, they are jointly and severally liable, and the injured person may sue them jointly or severally, and recover against one or all.” Jones v. Northwestern Auto Supply Co., 93 Mont. 224, 231, 18 P.2d 305, 307 (1932) (quoting Black v. Martin, 88 Mont. 256, 265, 292 P. 577, 580 (1930)). As Judge Jameson observed in Panasuk, we recognized the general rule that, in such circumstances, “one of the several wrongdoers cannot recover against another wrongdoer although he may have been compelled to pay all the damages for the wrong done.” Panasuk, 277 F. Supp. at 980-81 (quoting Variety, Inc. v. Hustad Corp., 145 Mont. 358, 368, 400 P.2d 408, 414 (1965)). The Legislature has crafted a mechanism for allocation of responsibility where a plaintiff is injured by the acts or omissions of multiple tоrtfeasors.
¶26 By law, the pilot in command of an aircraft is directly responsible for the operation of that aircraft and may take immediate action to meet an in-flight emergency, notwithstanding deviation from otherwise applicable rules.
¶27 For the foregoing reasons, we conclude that Metro is not entitled to indemnity from the United States. We therefore answer the third of the certified questions, no.
CHIEF JUSTICE McGRATH, JUSTICES BAKER, WHEAT, MORRIS, RICE and McKINNON concur.