*1 TRUMAN, KESSLEY DAWN Relator, v. MONTANA ELEVENTH JUDICIAL COUNTY, DISTRICT FLATHEAD COURT, THE HONORABLE TED O. LYMPUS, JUDGE,
PRESIDING Respondent. No. 01-621. Submitted on Briefs December 2001. April Decided
For Lympus, Judge, Kalispell. District Honorable Ted O. McGuffie): (Scott Katherine P. Howard Respondent For Bostock, PLLP, Maxwell, Johnson, McEvoy Kalispell. & Berg, Opinion delivered the Court. JUSTICE TRIEWEILER Truman, in District Plaintiff, Kessley complaint filed a ¶1 in County, District in Flathead which Court for the Eleventh Judicial McGuffie, Defendant, was liable for she Scott alleged a for accident. Truman filed motion she suffered in an automobile prohibit that the District Court summary judgment requested and from affirmative defense and asserting non-party from a Defendant at trial. The District subsequent accidents presenting evidence non-party could not assert Court concluded that McGuffie however, evidence of defense, to introduce affirmative Truman filed a Petition for causation. subsequent dispute accidents to requested that we with this Court and Supervisory Control Writ to a mistake of proceeding pursuant Court was conclude the District control. granted supervisory law. We following issues: asked to resolve the This Court has been
¶2 in for this case 1. Are the facts and issues ¶3 control? by supervisory resolution of a accident evidence May present a defendant
¶4 liability damages? disprove for with a BACKGROUND AND PROCEDURAL FACTUAL yield sign 1996, stopped at a Kessley Truman was On March by driven Scott by from behind a vehicle struck when her vehicle was charges. driving guilty to careless pled McGuffie later McGuffie. year later, one Truman in Approximately was involved a second in passenger accident as a her sister’s vehicle. In Truman injuries suffered minor as a in passenger ultra-light an aircraft. 22, 1999, February On Truman filed the action against McGuffie, alleged back, neck, she was to damages entitled injuries 18, 2000, shoulder caused McGuffie. On January Truman a complaint alleged filed in which she aggravated second accident back, neck, her injuries, shoulder and caused injuries additional leg. her nose and Both in complaints were filed the District Court for the Eleventh County. Judicial District in Flathead suit No was filed for injuries resulting from the aircraft accident. Truman moved the District Court to consolidate the suits.
However, both defendants objected alleged that consolidation prejudicial. would be The respective judges for the separate actions refused to consolidate the cases. join McGuffie has not moved to pilot of the ultra-light aircraft as a party to this suit. Truman for partial summary judgment moved against her suit
McGuffie April on 2001. She requested the District Court determine that negligent law, McGuffie was as matter of determine that Truman contributorily negligent, was not prohibit McGuffie raising non-party defense, from causation as a and to prohibit McGuffie introducing of the *3 accidents. The District granted
¶9 Court part Truman’s motion in concluded that negligent law, McGuffie was as a matter of Truman was not contributorily negligent, and that McGuffie could not use a However, affirmative defense. the District Court denied her motion in part concluded that McGuffie entitled was to present evidence of the second car accident and ultra-fight accident disprove to causation. The court stated: 6,
Plaintiff prove 1996, must that the accident of March was a causing injuries, substantial factor in her if any. Defendant is entitled dispute hand, that causation element. On the other Montana prohibits negating law Defendant from the causation element introducing by arguing evidence or that the conduct parties of unnamed third injuries. was the real cause of Plaintiff s Accordingly, the facts of the subsequent incidents are admissible any reasonable inference that can be argued from those facts is permissible, long goes cause, so as it negation not to its parties. attribution to some third or fine, This is a fine impossible simply but not to draw. To exclude injustice result in an of the accidents would apportion must asked to Plaintiffs to Defendant. The not be relevant, jury may The hear factual injuries amongst nonparties. regarding subsequent events. information 5, 2001, for Writ of September On Truman filed Petition ¶10 alleged that the District Supervisory Control with this Court. She it concluded that the evidence of Court was incorrect when to the involving non-parties presented accidents could be adequate, speedy no or jury. alleged plain, She further that there was significant remedy by appeal put and that she would be proceedings her case if the were disadvantage litigating of the law. misapprehension the District Court’s continue based on
DISCUSSION ISSUE appropriate Are the facts and issues this case by supervisory control? resolution appropriate is in this supervisory Truman contends that control creates District Court made a mistake of law which
case because the disadvantage injustice place significant that will her at a gross adequate an maintains that Truman has litigating her case. McGuffie remedy by supervisory appropriate. and that control is appeal control of a district court supervisory This Court will assume litigation proceeding where the district court direct the course of uncorrected, law, if would cause on a mistake of which based remedy. Park inadequate is an significant injustice appeal for which an 13, 164, 13, Court, MT 289 Mont. ¶ v. Sixth Judicial Dist. ¶ is a supervisory appropriate 13. Whether control 961 P.2d ¶ extraordinary depends presence decision that on the case-by-case injustice an particular prevent and a need to circumstances Park, occurring. ¶ 363, 927 279 Mont. In Plumb v. Fourth Jud. Dist. Court control was whether
P.2d considered the defendant permit court intended to in a case where the district to, caused, by non-party or contributed assert were (1995). Plumb, 27-1-703(6), Roberta plaintiff, MCA pursuant to § at Missoula’s shopping on the floor while injured slipped when she physician that Plumb’s alleged Mall. The defendant Southgate *4 and, therefore, it was entitled injuries contributed to her argued damage liability. § its Plumb reduction of proportionate defense, non-party for the 27-1-703(6), provided MCA which
169 process. due to substantive right her doctor’s her and violated raise the permitted that the defendant court concluded district supervisory this Court for petitioned and Plumb defense party third control. entanglements were economy procedural and inevitable Judicial to issue a writ this Court reasons for as
cited
370, 927
at 1015-16. We
Plumb,
P.2d
279 Mont. at
control.
supervisory
law,
a mistake of
upon
based
that,
proceeded
if
court
noted
the district
itself
and the trial
discovery,
preparation,
the cost of
the course of
P.2d at
Plumb,
927
279 Mont.
adversely affected.
would be
hindered, any
Moreover,
negotiations would be
settlement
1015-16.
subsequent
litigation
questionable, and
reached would be
verdict
Plumb,
are negate allegations. Truman’s non-parties accidents with Moreover, will be the District Court stated upon that apportionment inferences as to based reach reasonable incorrect, aspects all impact If the court’s conclusions will evidence. negotiations trial to settlement preparation from for proceeding evidence or Certainly, improper the trial itself. the admission of and the render the results unreliable improper jury instructions will substantially time and finances will be cost to Truman both inadequate is an appeal we conclude that an Consequently, increased. to exercise control justice requires this Court remedy upon a mistake proceeding if the District Comb is based to determine of law.
ISSUE accident with evidence of May a defendant damages? liability non-party disprove non- allege that a defendant Truman contends that a she maintains injuries. Consequently, is the cause of her and McGuffie is is inadmissible tortfeasor evidence of car accident the second introducing evidence about prohibited alternative, jury. In the accident to a ultra-light aircraft proving bears the burden the Defendant Truman maintains *5 liability is divisible and apportionable. She maintains that the Defendant has not satisfied that jury burden and the may not consider apportionment. The District Court concluded that Truman was burdened with
proving that
substantially
McGuffie
injuries
caused her
and that
evidence
subsequent
of the
accidents would
disprove
be admissible to
Furthermore,
causation.
the court
jury
stated that
the
would be
permitted to draw reasonable inferences from the
by McGuffie. The
recognized
court
that there is a fine line between
permissible evidence
subsequent
of
negate
events to
causation and
attempting to
apportion
blame or
damages to a non-party.
Plumb,
In
exercised
control to determine whether
27-1-703(6),
(1995),
§
MCA
which permitted the defendant
to raise a
third-party affirmative defense that a non-party was liable for the
plaintiffs damages, was constitutional. We concluded that the State
legitimate
had a
however,
interest
in apportioning liability,
27-1-
§
703(6),
MCA
was not rationally related to furthering that
Plumb,
objective.
377,927
279 Mont. at
P.2d at 1019. We reasoned that
the statute was flawed because the non-party was not afforded the
opportunity
appear,
witnesses,
to
to examine
or to offer evidence.
Plumb,
subsequent for accidents the same reason that the affirmative non- party However, defense was invalidated Plumb. the issue in this case is different apportionment liability from the of non-party. to a The issue here is not the conduct of an unrepresented person, but whether other events plaintiffs contributed to the condition. The plaintiff is not being conduct, asked to defend someone else’s to prove but the cause of her McGuffie own condition. Whether permitted evidence of the subsequent disprove accidents to causation of extent, is not resolved any, Plumb. The if that McGuffie is negate accidents to subsequent permitted present evidence impression issue of for this Court. cause is an first reasoning of United States upon The District Court relied Glock, in Bell v. Inc. Court for the District Montana District (D.Mont. 2000), court concluded that evidence F.Supp.2d That Bell, In the defendant of the accidents was admissible. The States to raise a affirmative defense. United attempted However, to do correctly that it was not so. court concluded surrounding the itself the court held that relevant evidence incident cause, long admissible to so as the defendant did negate was argue negligence a third in fact attempt Bell, injury. F.Supp.2d agree at 1070-71. We responsible Bell’s States Court’s with that much the United District decision. question becomes, parties’ respective then are the burdens when what disprove events are introduced causation? *6 (Fla. 2000), Lyons In v. 763 the Supreme Gross So.2d Florida ¶23 a issue. in two Corut considered similar Selma Gross involved apart. accidents months She filed suit separate approximately three against alleged damages the first tortfeasor and that her caused were by liability the first accident alone. The defendant admitted for the accident, alleged the but that the second accident was cause of Gross’s injury. The Florida court concluded that the first of successive
¶24
where
two
established,
liability
tortfeasors is sued and
has
the parties
been
but
for
apportion
damages
do not
sufficient evidence
to
accidents,
between the two
the first
is liable for the entire
tortfeasor
Gross,
The
to
injury.
plaintiffs
prove
contributes
(1965).
(Second)
that
Restatement
of Torts 433A
dividing
injury.
§
circumstances,
arbitrarily apportioning
rather
than
Under
such
liability, each tortfeasor is charged
liability
with
for the entire harm.
(Second)
Restatement
of Torts
433A. The
§
Florida court recognized
injury
indivisible
rule and apportionment
damage
of
based on
mutually
Gross,
fault are not
exclusive.
We believe on the other that where the tortious act is established, it is better that the subject tortfeasor should be paying more than his theoretical share of the damages in a situation where ... it [is] difficult to prove which tortious act did the harm.
Azure,
253,
recognized
practical
that
its
application could create confusion. We
suggested that the trial judge serves “a critical function in assessing
the evidence at the end of the case before he instructs the jury” to
minimize the
an arbitrary
speculative
risk of
or
apportionment of
produce
combined to
multiple parties
the acts of
damages where
Azure,
Burlington Northern
Callihan,
condition
pre-existing
we considered the extent to which
presented
jury.
could be
to a
We held that
the relevant
facts
however,
concerning pre-existing injury
jury,
could be
to a
you
find that
provided
part: “[I]f
we endorsed a
instruction that
then the
permit
apportionment,
the evidence does not
such an
Callihan,
disability.”
201 Mont. a
defendant
is liable for the entire
357,
First, relevant evidence of a defendant to submit that he is the cause or sole negate allegations accidents to cases, non-party injury. In all of the cited cause of an evidentiary to traditional subject accidents was admitted relevancy. Montana law further prejudice considerations such as to the apportion fault prohibits attempting a defendant liability to a without non-party. Assignment non-party of a conduct liability, risks against to defend affording opportunity liability, places assignment disproportionate an unreliable plaintiff. requires on the This defending burden of the introducing evidence tightrope walk a when McGuffie eye ensure accidents, keep a and that the court watchful *8 174 improper prejudice jury.
that evidence does not the Second, prove Truman must conduct McGuffie’s contributed as a ¶32 any substantial factor to the causation of damages that she has However, sustained. need prove she the extent to which he is If she suffers an responsible. injury, indivisible to which negligence cause, contributing McGuffie’s was a substantial McGuffie However, is damage. liable for the entire McGuffie attempt negate allegations those with relevant evidence as noted above. To do so, prove, by probability, McGuffie must a reasonable medical injury only is and that he is for a portion divisible liable of those case, damages. jury may In that the be to reduce McGuffie’s obligation by the portion damages proven Truman’s for which he has However, responsible. he not is it is jury crucial instructions indicate that injury prove McGuffie is liable for the entire if he fails to Callihan, injury that Truman’s is divisible. See Mont. P.2d at 976. Contrary to holding, only the District Court’s
permitted to consider if apportionment proves McGuffie by suffered Truman are An apportionment divisible. instruction must jury if not be offered to the McGuffie does not demonstrate that the injury by suffered Truman is in apportionment divisible and that Azure, fact this case. See 596 P.2d at Truman further requests this Court determine that summary on an judgment is insufficient warrant apportionment instruction and that McGuffie is not entitled to offset any damages the settlement in the accident from awarded in this case. We conclude that these determinations are more appropriately by made the District Court. This matter is remanded to this proceedings Opinion. District Court further consistent with COTTER, LEAPHART, NELSON,
JUSTICES REGNIER and RICE concur. dissenting.
CHIEF JUSTICE GRAY and, indeed, I respectfully opinion I dissent from the Court’s 15, 2001, joining concede that I erred in the Court’s November order and the stated rationale therein for this case on briefly accepting control. The rationale advanced in that order was that this supervisory “a issue which has not decided presents legal previously case been resolving awaiting appeal this Court and that a full trial and before unnecessary delay.” That expense issue would lead to rationale, basis, makes this Court a court of first on a stand-alone every jurisdiction-on control exercise of our resort-via the Many precedent. Montana there is no legal issue on which conceivable by Montana’s be decided exist, they properly should such issues to this Court on brought district courts uncommonly competent in the usual fashion. appeal unnecessary expense about in our 2001 order language As to the delays is rife with system the judicial true that delay, it is sad but *9 by inadvertently intentionally and sometimes
caused sometimes in most of our by overcrowded dockets nearly inevitably and lawyers, in control Moreover, supervisory for writ of petition district courts. 5, 2001, briefing and September filed on this case was December by to this Court our Clerk-on up was sent concluded-and from then until now 17,2001. 17 months passage approximately of unnecessary delay, avoiding particularly of hardly advances the notion after return to District appealed since this matter well be likely Court and a trial. opinion in its expanded explanation the Court’s regard With control, it supervisory for resolution via
why this case is I explanation agree the more full also is flawed. with my view that that, Park, assume in under we will the Court’s statements ¶ on a proceeding control where a district court is based supervisory injustice appeal for which an is an causing significant mistake of law depending determinations remedy, and that we make such inadequate “extraordinary My response circumstances.” presence on the District Court could be statements is to wonder how the those where, in case as noted present under a mistake of law the proceeding control, previously the issue has not accepting supervisory in the order which, result, there is no as a upon decided this Court and been above, Further, nothing there is authority. as stated controlling Finally, regard with “extraordinary” impression. issues of first about in the effects of the admission the Court’s statements 16 about ¶ costing potentially instructions improper jury evidence or improper finances, in hundreds of perhaps this is true Truman in both time and come jury instructions which involving evidentiary rulings and cases year. The Court ordinary course of events each us on in the appeal nearly any control over drifting accepting supervisory into seems to be conclusion or purely legal on a ruling, whether based pretrial kind of on could be a reversal act, the ultimate result discretionary where Evidentiary thereafter. necessity proceedings offurther appeal and the summary judgment, or motions to dismiss rulings, rulings on which “extraordinary circumstances” rulings trial are not speedy significant injustice appeal inadequate create for which an is an remedy. path taking exercising To follow the the Court is on supervisory
control is unwise and unwarranted. The “costs” so are doing case, In the significant. delay there has been substantial control, pending delays the Court’s decision on with more supervisory scheduling proceedings to come in further in the District Court and the remaining possibility appeal trial-together of an after with its own expenses delay importantly, for all concerned. More each supervisory petition accept away control we takes this Court’s time docket, trade,” appeal primary from the which is our “stock in delays opinions appeals longer. Finally, every in those even case yet which, accept spawns petitions on control more denied, ultimately even if take time to read and discuss-more time that, away obligations from other of the Court. I fear in the Court’s courts, eagerness litigation to direct the course of in the district we are neglecting delaying appeals pending the hundreds of us. We before intruding also are far too often into the domain of our district courts which, aside from being inappropriate, merely scheduling makes the of those courts’ overcrowded dockets more difficult. my It that supervisory improvidently granted view control was and, my case conceded own error in our 2001 having signing this
order, I from the on Issue 1. I would not opinion dissent Court’s *10 address Issue 2.