Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc.

• Decision Date: 22 February 1990
• Docket Number: No. 18773,18773
• Court: West Virginia Supreme Court
• Parties: , 59 Ed. Law Rep. 1179 BOARD OF EDUCATION OF McDOWELL COUNTY v. ZANDO, MARTIN & MILSTEAD, INC.

Page 796

390 S.E.2d 796

182 W.Va. 597, 59 Ed. Law Rep. 1179

BOARD OF EDUCATION OF McDOWELL COUNTY v. ZANDO, MARTIN & MILSTEAD, INC.

No. 18773.

Supreme Court of Appeals of

West Virginia.

Feb. 22, 1990.

Syllabus by the Court

1. "The doctrine of contribution has its roots in equitable principles. The right to contribution arises when persons having a common obligation, either in contract or tort, are sued on that obligation and one party is forced to pay more than his pro tanto share of the obligation." Syllabus Point 4, in part, Sydenstricker v. Unipunch Prods., Inc., 169 W.Va. 440, 288 S.E.2d 511 (1982).

2. A defendant in a civil action has a right in advance of judgment to join a joint tortfeasor based on a cause of action for contribution. This is termed an "inchoate right to contribution" in order to distinguish it from the statutory right of contribution after a joint judgment conferred by W.Va.Code, 55-7-13 (1923).

3. "This jurisdiction is committed to the concept of joint and several liability among joint tortfeasors. A plaintiff may elect to sue any or all of those responsible for his injuries and collect his damages from whomever is able to pay, irrespective of their percentage of fault. Our adoption of a modified rule for contributory negligence in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), did not change our adherence to joint and several liability." Syllabus Point 2, Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982).

4. Our right of contribution before judgment is derivative in the sense that it may be brought by a joint tortfeasor on any theory of liability that could have been asserted by the injured plaintiff. However, it is clear that the amount of recovery in a third-party action based on contribution is controlled by the amount recovered by the plaintiff in the main action.

5. " 'Where a payment is made, and release obtained, by one joint tort-feasor, the other joint tort-feasors shall be given credit for the amount of such payment in the satisfaction of the wrong.' Point 2, Syllabus, Hardin v. The New York Central Railroad Company, 145 W.Va. 676 [116 S.E.2d 697 (1960) ]." Syllabus Point 1, Tennant v. Craig, 156 W.Va. 632, 195 S.E.2d 727 (1973).

6. A party in a civil action who has made a good faith settlement with the plaintiff prior to a judicial determination of liability is relieved from any liability for contribution.

7. Defendants in a civil action against whom a verdict is rendered are entitled to have the verdict reduced by the amount of any good faith settlements previously made with the plaintiff by other jointly liable parties. Those defendants against whom the verdict is rendered are jointly and severally liable to the plaintiff for payment of the remainder of the verdict. Where the relative fault of the nonsettling defendants has been determined, they may seek contribution among themselves after judgment if forced to pay more than their allocated share of the verdict.

8. Where there is a single indivisible loss arising from the actions of multiple parties who have contributed to the loss, the fact that different theories of liability have been asserted against them does not foreclose their right of contribution inter se or prevent them from obtaining a verdict credit for settlements made with the plaintiff by one or more of those jointly responsible.

9. "Whether a motion for a mistrial should be sustained or overruled is a matter which rests within the trial court's discretion and the action of the trial court in ruling on such a motion will not be cause for reversal on appeal unless it clearly appears that such discretion has been abused." Syllabus Point 4, Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968).

10. " ' "Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." State v. Louk, W.Va., 301 S.E.2d 596, 599 (1983).' Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983)." Syllabus Point 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).

11. " 'If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.' W.Va.R.Evid. 702." Syllabus Point 3, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).

12. " 'Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.' Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ]." Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974).

13. "To summarize the basic operation of the Dead Man's Act, W.Va.Code, 57-3-1, a concurrence of three general conditions must be met in order to bar the witness's testimony. First, the testimony must relate to a personal transaction with a deceased or insane person. Second, the witness must be a party to the suit or interested in its event or outcome. Third, the testimony must be against the deceased's personal representative, heir at law, or beneficiaries or the assignee or committee of an insane person." Syllabus Point 10, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 (1988).

14. Statements made by an agent or employee within the scope of his agency or employment and during the existence of the agency or employment relationship are not hearsay and are admissible against a principal or employer who is a party to litigation. W.Va.R.Evid. 801(d)(2)(D).

15. "When evidence is excluded and the action of the court in excluding it is relied upon in the appellate court, it must appear on the record that the evidence rejected was or would have been relevant, material and important to make its rejection available as a ground of error." Syllabus Point 5, Maxwell v. Kent, 49 W.Va. 542, 39 S.E. 174 (1901).

Daniel R. Schuda, Steptoe & Johnson, Charleston, for Zando, Martin & Milstead, Inc.

Stephen R. Crislip, William J. Powell, Jackson & Kelly, Charleston, for the Bd. of Educ. of McDowell County.

MILLER, Justice:

In this appeal, we address the validity of the dismissal of a civil defendant's claim for contribution against a joint wrongdoer who has settled with the plaintiff. We also address the right of the nonsettling defendant to have the verdict reduced to reflect such settlements. We conclude that the Circuit Court of Kanawha County properly dismissed the contribution claims of the defendant below, Zando, Martin & Milstead, Inc. (ZMM), but erred in refusing to grant a verdict credit for settlements between the plaintiff below, the Board of Education of McDowell County (Board), and other defendants.

In January, 1975, the Board entered into a contract with ZMM, an architectural and engineering firm located in Charleston, Kanawha County, to design and supervise the construction of Mount View High School near Welch, McDowell County. At the recommendation of ZMM, the Board subsequently hired, by separate contracts, the H.C. Nutting Company (Nutting) to do soil testing at the proposed school site and the Corte Company, Inc. (Corte), a general contractor, to perform most of the construction.

Cracks were found in the building almost as soon as the school opened in September 1978, and more appeared as time went on. In January 1982, a steel beam supporting a classroom fell. In July 1983, the south wall of the gymnasium suffered a structural failure during a windstorm.

On February 22, 1984, the Board filed an action for damages in the Circuit Court of Kanawha County, alleging that ZMM had been negligent and had breached its contracts with the Board by failing properly to design and supervise the construction of the building. ZMM denied the allegations and subsequently filed a third-party complaint alleging that any damages suffered by the Board were due to the negligence of Nutting and Corte. The Board was then granted leave to file an alternative complaint against Nutting and Corte, charging each with breach of contract and with negligence.

In April 1987, the Board settled with Corte for $600,000. Corte obtained a release from liability and was dismissed from the litigation. The trial court also dismissed with prejudice ZMM's cross-claims ¹ against Corte on the ground that the settlement and release barred any further proceedings against Corte arising from the same transaction. The Board proceeded to trial against Nutting and ZMM several weeks later. In the course of trial, however, the Board settled with Nutting for $30,000, and Nutting was dismissed from the action. The trial judge also dismissed ZMM's cross-claims against Nutting.

The case was submitted to the jury, and, on May 21, 1987, a verdict was returned awarding the Board $1,000,000 in compensatory damages. Interrogatories subsequently submitted to the jury indicated that the verdict was predicated on findings of both negligence and breach of contract. The jury allocated the negligence involved as follows:

" 5% McDowell County Board of Education

----

15% Zando, Martin & Milstead, Inc.

----

75% Corte Company, Inc.

----

0% H.C. Nutting Company

----

5% Others"

----

No punitive damages were awarded.

Following the verdict, ZMM sought to have the Nutting and Corte settlements deducted from the verdict. The Board, however, elected to have judgment rendered on the contract claim. The trial court refused to grant ZMM a credit for the Nutting and Corte settlements and, by order dated October 15, 1988, entered judgment against ZMM for the full $1,000,000.

I.

A. The Right of Contribution

ZMM first argues that the trial court's dismissal of its...