Tanya Swett v. Haig‘s, Inc., Defendant and Third-party Plaintiff v. Eric Jensen, Third-party Defendant
No. 94-049
Supreme Court of Vermont
June 2, 1995
Motion for Reargument Denied July 5, 1995
663 A.2d 930
Gibson, Dooley, Morse and Johnson, JJ., and St. Helaire, D.J., Specially Assigned.
Shannon A. Bertrand of Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for Third-party Defendant-Appellee.
Bret P. Powell and Christopher O‘Brien of Wilson Powell Lang & Faris, Burlington, for Amicus Curiae Friends of Fairness in Vermont Dram Shop Law.
Dooley, J. The principal issue in this case is whether the Dram Shop Act permits contribution from an intoxicated driver for damages a dram shop may be required to pay a motorist injured in an accident with the intoxicated driver. The trial court held that contribution was not available. We conclude that the Act authorizes contribution, and therefore, we reverse.
Haig‘s, Inc., a dram shop, was sued by plaintiff Tanya Swett, a motorist who was seriously injured in an accident caused by Eric Jensen while he was operating his vehicle in Jamaica, Vermont. Plaintiff alleged that Jensen was intoxicated and that Haig‘s, Inc. served him liquor despite his intoxicated state. She further alleged that as a direct consequence of Haig‘s acts, thе accident and her injuries occurred. Haig‘s filed a third-party complaint against Jensen, seeking contribution to any damages paid plaintiff pursuant to § 501(f) of the Dram Shop Act,
In holding that contribution was unavailable, the trial court determined that an intoxicated driver is not a responsible person under the Dram Shop Act, and reasoned that “the plain meaning of
Some background is necessary to put the question before us in context. Much of the law in this area has been shaped by the all-too-common circumstance of a driver, who is served alcoholic beverages by a dram shop after becoming visibly intoxicated, and who then becomes involved in an automobile accident, usually injuring another motorist. At common law, the dram shop was not liable to the injured motorist on the theory that the intoxicated driver‘s action was the sole proximate cause of the accident. See Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 215, 542 A.2d 269, 270 (1988). The dram shop was not liable even where the plaintiff showed that it was negligent by continuing to serve the driver and that the accident was caused by the driver‘s impairment. Id. Before the reevaluation of this limited view of causation, the Vermont Legislature enacted the Dram Shop Act, which imposes strict liability for injuries to third parties on dram shops that serve persons “apparently under the influence of intoxicating liquor.”
Because the Act‘s preemptive effect is limited, an accident as described above can give rise to common-law negligence liability as well as liability against the dram shop under the Act. See Plante v. Johnson, 152 Vt. 270, 274, 565 A.2d 1346, 1348 (1989). Thus, the injured motorist may bring a common-law negligence action against the intoxicated driver. Id. The Legislature recognized the intoxicated driver‘s liability and provided that the claim against the dram shop could be joined with the claim against the intoxicated driver. See
(f) Right of contribution. A defendant in an action brought under this section has a right of contribution from any other responsible person or persons, which may be enforced in a separate action brought for that purpose.
The parties agree that the question must be resolved under principles of statutory construction. In construing a statute, our primary objective is to effectuate the intent of the Legislature. See Bisson v. Ward, 160 Vt. 343, 348, 628 A.2d 1256, 1260 (1993). Initially, we presume the Legislature intended the plain, ordinary meaning of the statute. Id. Where the meaning is clear and unambiguous, we construe and enforce the statute according to its express meaning. See Langle v. Kurkul, 146 Vt. 513, 515, 510 A.2d 1301, 1302-03 (1986). Words of doubtful meaning do not change common law rules; the intent to do so must be expressed in clear and unambiguous language. See Estate of Kelley, 160 Vt. at 533, 632 A.2d at 362.
We conclude that the wording of § 501(f) is clear and unambiguous, in the context of the whole statute, and it authorizes contribution in this case. The intoxicated driver is a person “resрonsible” for the injuries to the other motorist although the common law creates that responsibility rather than the Dram Shop Act. There is nothing in § 501(f), or the Act as a whole, to suggest that the Legislature used the word “responsible” in other than its ordinary and plain meaning. Indeed, the Legislature used the phrase “defendant in an action brought under this section” in subsection (f), showing that it knew how to limit its action to Dram Shop Act defendants when that was clear. It did not express such an intent in defining the responsible person from whom contributiоn could be sought; we conclude this omission was intentional. Finally, we think it is instruc-
Although in dicta, we have examined the statute once before and reached the same conclusion. In Clymer v. Webster, we cited the statute as permitting contribution between a dram shop and an intoxicated driver despite the lack of a common theory of liability between those defendants. 156 Vt. at 621 n.3, 596 A.2d at 909 n.3. On reexamination, we reaffirm its conclusion.
We have reached the above conclusion without relying on the legislative history cited by Haig‘s and Friends of Fairness in Vermont Dram Shop Law, which submitted an amicus curiae brief in support of reversal. As is often the case in this state, we find the legislative history sparsе and ambiguous.2 See State v. Madison, 163 Vt. 360, 372-74, 658 A.2d 536, 544-45 (1995) (per curiam) (legislative history consisting of witness comments and post-hoc committee reaction insufficient to overcome judicial consensus regarding meaning of term “review de novo” in constitutional amendment); In re Killington, Ltd., 159 Vt. 206, 216, 616 A.2d 241, 247 (1992) (legislative history inconclusive and therefore insufficient to justify departure
We are also not persuaded by Jensen‘s public policy arguments.3 Essentially, Jensen restates the arguments against contribution generally, as set forth in Howard v. Spafford, and expresses concern that the injured motorist, Tanya Swett, may not recover all her damages, depending on how we apply the comparative negligence statute to Dram Shop Act cases. The main thrust of the Howard opinion is that any change to the no-contribution rule should come from the Legislature and not from this Court. See Howard, 132 Vt. at 438, 321 A.2d at 77. Section 501(f) undeniably provides for contribution in some circumstances; Jensen‘s arguments against contribution have been rejected for the circumstances covered by the statute.
We recognize there are complexities introduced by contribution between tortfeasors whose liability is based on different theories. As we noted in Clymer, other states have worked out contribution rules despite these complexities. See Clymer, 156 Vt. at 621 n.3, 596 A.2d at 909 n.3; see also 1 J. Mosher, Liquor Liability Law
Alternatively, Jensen urges us to affirm on either of two additional grounds raised below but not addressed by the trial court. We reject one of these grounds and decline to rule on the other because of the posture of the case.
First, Jensen argues that the third-party complaint was premature, and the right of contribution, even if available, must be enforced in a separate action. Haig‘s filed its third-party complaint pursuant to V.R.C.P. 14(a), which provides in pertinent part:
At any time after commencement of the action a defendant as a third-party plaintiff may cause to be served a summons and complaint upon a person not a party to the action who is or may be liable to such third-party plaintiff for all or part of the plaintiff‘s claim against the third-party plaintiff.
The rule allows a defendant to bring in a third party “who is or may be liable to him for some or all of the plaintiff‘s claim on a theory such as indemnity, subrogation, contribution, or warranty.” Reporter‘s Notes, V.R.C.P. 14 (emphasis supplied).
We have recently addressed the timing of third-party actions to enforce indemnity claims. See Riblet Tramway Co. v. Marathon Electronics-Avtek Drive Div., 159 Vt. 503, 506-07, 621 A.2d 1274, 1275 (1993). We reasoned that third-party complaints may be filed even though a separate action would be premature because third-party plaintiff‘s liability to plaintiff is not established. Id. at 506, 621 A.2d at 1275. Thus, we held that “the third-party plaintiff‘s claim against the third-party defendant arises or accrues when the plaintiff files the complaint in the original action.” Id. We see no reason for a different rule for a contribution claim.
Jensen argues, however, that еven if Rule 14(a) authorizes a third-party complaint for contribution, § 501(f) authorizes a contribution claim only in a separate action. Jensen misreads § 501(f). Although the section states that the dram shop‘s right to contribution
Alternatively, Jensen argues that we should affirm the dismissal of the third-party complaint because Jensen has settled with plaintiff, and obtained a release from her.4 Plaintiff has not participated in this appeal because it involves solely the judgment between third-party plaintiff and third-party defendant. Because our determination of the effect of the settlement and release could affect the amount of plaintiff‘s recovery, we think it is unfair to resolve the effect of the settlement without her participation.5 We remand to the trial court for that opportunity.
Reversed and remanded.
Johnson, J., dissenting. I disagree with the majority‘s broad interpretation of the contribution provision in Vermont‘s Dram Shop Act (DSA),
The main issue in this case is the interpretation of
A defendant in an action brought under this section has a right of contribution from any other responsible person or persons, which may be enforced in a separate action brought for that purpose.
The trial court held that the right of contribution was limited to persons responsible under the Act, i.e., those persons or entities
[A]s Judge Learned Hand said, “the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing,” nevertheless “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always hаve some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”
Public Citizen v. United States Dep‘t of Justice, 491 U.S. 440, 454-55 (1989) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff‘d, 326 U.S. 404 (1945)). Thus, in the words of Justice Holmes, the plain meaning rule is “rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.” Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928). A thoughtful examination of the purposes of the DSA and a thorough review of the legislative history show that the majority‘s reliance on the plain language doctrine is simplistic аnd incorrect.
The Dram Shop Act was enacted to overcome the common-law barrier preventing third parties from suing furnishers of intoxicating liquors. Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 215, 542 A.2d 269, 270 (1988). The overarching purpose of the Act and predecessor statutes is to include the server and furnisher of intoxicating liquor in the effort to prevent injuries resulting from intoxication and to ensure that, if an injury does occur, the injured party is properly compensated. See Healey v. Cady, 104 Vt. 463, 466, 161 A. 151, 152 (1932) (predecessor statute to DSA “was enacted to compel those whо will hazard causing damage by furnishing intoxicating liquor to others to answer for such damage to those who may suffer it“); see also Ackerman v. Kogut, 117 Vt. 40, 47, 84 A.2d 131, 136 (1951) (“[T]he spirit and purpose of [a predecessor statute to the Dram Shop Act] is that traffic in intoxicating liquor shall be so conducted as to discourage intoxication and encourage temperance.“);
Not surprisingly, dram shops have sought relief from the strict liability the Act imposes. During the 1987 legislative session, three bills were introduced as part of a comprehensive effort to revise the DSA and to limit dram shop liability. See Statement of Purpose, S. 5, Vt. Bien. Sess. (1987); Statement of Purpose, S. 14, Vt. Bien. Sess. (1987); Statement of Purpose, H. 57, Vt. Bien. Sess. (1987). Two of these bills contained a contribution provision. S. 5, § 1; H. 57, § 1. Most significantly, all of these bills, as introduced, broadened liability under the Act by including the intoxicated person as a responsible person in § 501(a), the section creating the action for damages. S. 5, § 1; S. 14, § 1; H. 57, § 1. If the bills had been passed as introduced, the intoxicated person would have been a defendant under the DSA, permitting contribution both by a dram shop against the intoxicated person and by an intoxicated person against a dram shop.
The Legislature, however, refused to accommodate fully the sponsors of the DSA amendments. After much debate in both the House and the Senate, the Legislature did not create a cause of action against the intoxicated person as a responsible person under the DSA. See 1987, No. 103. The pertinent section is virtually the same as that introduced except for the omission of the intoxicated person. Compare S. 5, § 1 with 1987, No. 103, § 1; see Estate of Kelley v. Moguls, Inc., 160 Vt. 531, 533, 632 A.2d 360, 362 (1993) (legislative history demonstrated that Legislature considered and rejected attempt to have DSA preempt all common-law negligence actions against sellers and furnishers of alcoholic beverages when facts of cаse do not fall within Act‘s scope).
While specifically rejecting DSA liability against the intoxicated person, the Legislature did adopt the contribution provision, but it did so to cure what it viewed as a “deep pockets” problem. See Hearings on S. 5 Regarding Dram Shop Liability Before the House General & Military Affairs Comm., Vt. Bien. Sess. 10-15 (Mar. 25, 1987) (testimony by Bill Fisher, Michael Grisanti, and Daniel Pudvah). To limit liability under the DSA and to ensure that furnishers are only responsible in proportion to their liability for illegally serving intoxicating liquors, a “deep pockets” furnisher is now able to seek contribution from other responsible furnishers. Id.
The point may be raised, of course, that the Legislature‘s refusal to create a cause of action under the Dram Shop Act against the
First, the majоrity goes further in limiting liability for dram shops than even the proponents had thought possible. Under the original bills, the proponents conceded that both dram shops and intoxicated persons would be able to seek contribution from each other. When the Legislature removed the intoxicated person as a person responsible under the DSA, the intoxicated person lost the ability to seek contribution from the dram shop. See
Second, if we alter the facts and change the target of the contribution from an intoxicated driver to a sober driver, and include other potentially “responsible” parties, it is apparent that the Legislature could not have intended the majority‘s broad interpretation. For example, while his parents are out of town, a fourteen-year-old boy, under the supervision of an adult carеtaker, is served at two different bars and becomes intoxicated. The boy leaves the bar, staggers blindly into the street, and is struck and injured by a speeding car, driven by a sober driver. The child‘s parents sue the owners of the first bar. See
Third, by permitting contribution against the intoxicated tortfeasor and others, the majority severely undercuts the essential purpose for which the DSA was enacted - to prevent dram shops, despite their self-interest in selling liquor, from serving persons in violation of the statute. The majority permits furnishers to shift liability away from the very persons the DSA is intended to reach. This removes an important legislative incentive fоr dram shops to comply with the law. If the Legislature had intended to diminish the effectiveness of the statute in this manner, it would have repealed it. Instead, the majority has accomplished repeal.
Accordingly, I dissent.
Notes
Nor are we persuaded by the Legislature‘s failure to deal with the contribution right of the intoxicated driver. It is logical that the Legislature would have left it to the common law to define the contribution right, if any, because the common law governs the intoxicated driver‘s rights and liability. We arе, of course, free to extend contribution rights to the intoxicated driver in light of the Legislature‘s action in providing such rights to dram shops. Cf. Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 472, 661 A.2d 89, 93 (1995) (where the Legislature provided that judgments on small-claims counterclaims would not have preclusive effect in later litigation, Court adopted similar rule for claims-in-chief in small claims to avoid “an unfair and unjustified inconsistency“).
Even if we accepted the dissent‘s reasoning on incentives, its omission of the incеntives on the intoxicated driver is glaring. In this case, the driver apparently has minimal insurance and the dram shop is the “deep pocket.” To avoid collection difficulties, plaintiff settled quickly with the intoxicated driver and is pursuing the dram shop for most of her damages. The consequences for the intoxicated driver are minimal. The dissent‘s theory reduces or eliminates the driver‘s incentive to purchase adequate insurance or to avoid driving while intoxicated.