Beaudoin v. Texaco, Inc.

• Decision Date: 14 January 1987
• Docket Number: No. A4-85-81.,A4-85-81.
• Citation: 653 F. Supp. 512
• Parties: Mark Chris BEAUDOIN, Plaintiff, v. TEXACO, INC., Defendant.
• Court: U.S. District Court — District of South Dakota

653 F. Supp. 512

Mark Chris BEAUDOIN, Plaintiff, v. TEXACO, INC., Defendant.

No. A4-85-81.

United States District Court, D. North Dakota, Northwestern Division.

January 14, 1987.

Thomas A. Dickson, Bismarck, N.D., for plaintiff.

Richard H. McGee, Minot, N.D., for defendant.

Memorandum and Judgment On Jury Verdict

VAN SICKLE, District Judge.

A collision of legal principles renders a truly equitable result in this case impossible. The difficult decision confronting this court is which inequitable result is most proper.

Mark Beaudoin, the plaintiff, was an employee of Wood Wireline. Texaco, Inc., the defendant, hired Wireline to conduct a pressure gradient check on Texaco's well, CM Loomer # 13 near Keene, North Dakota.

Beaudoin and a co-worker arrived on the unlighted site before dawn on February 21, 1983, to prepare their equipment for the job. Beaudoin was uncoiling wire from a large spool mounted on the wireline rig when he was struck in the left eye by the end of the wire. He is now legally blind in that eye.

Texaco's employee John Spain arrived after the incident occurred to supervise the work being done on the site.

On March 29, 1985, Beaudoin brought an action for damages against Texaco. Beaudoin alleged that the injury was the result of Texaco's negligence in requiring the work to commence at an hour that would require the equipment to be set up in darkness, in failing to provide proper lighting, and in failing to properly supervise the work. Texaco alleged that the injury was the result of Beaudoin's negligence in handling the wire carelessly. Both parties denied the negligence alleged against them. Testimony was presented at trial that could have led to the conclusion that Wood Wireline was negligent in failing to provide proper equipment and training for its employees. Wood Wireline is immune from liability under the provisions of North Dakota's worker's compensation law, NDCC § 65-04-28, and is not a defendant in the action.

The jury found damages of $44,057.04, and apportioned the negligence causing the injury as follows; 60% to Wood Wireline, 30% to Beaudoin, and 10% to Texaco. This court must now determine what judgment results from this verdict.

That determination depends on the proper interpretation and application of North Dakota's comparative negligence statute.

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person recovering. The court may, and when requested by either party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering. When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each; provided, however, that each shall remain jointly and severally liable for the whole award. Upon the request of any party, this section shall be read by the court to the jury and the attorneys representing the parties may comment to the jury regarding this section.

NDCC § 9-10-07.

The narrow question before this court is whether in cases involving a negligent plaintiff and more than one other negligent actor this statute allows recovery only against those defendants more negligent than the plaintiff or against all negligent defendants so long as the plaintiff's negligence is less than the combined negligence of the other negligent actors. The North Dakota Supreme Court has not ruled on this issue, and the other jurisdictions are divided.

This court must first determine how a federal district court sitting with diversity jurisdiction should properly approach resolving a legal issue not yet settled by the highest court of the law-determining state. Federal Procedure, Lawyer's Edition states that federal courts should decide such issues "without speculation as to how the state courts would decide the question as a novel issue and without surrendering their own judgment as to local law on account of dicta or other chance expression by state judges." 8 Fed Proc, L Ed § 20:376. This statement is supported by a citation to New England Mutual Life Insurance Co. v. Mitchell, 118 F.2d 414 (4th Cir.1941), cert. denied 314 U.S. 629, 62 S.Ct. 60, 86 L.Ed. 505. That case explicitly held that federal courts are obligated to exercise their own judgment in resolving open questions of state law without regard for how the highest court of the state would rule on the issue if confronted with it, and that dicta in past decisions of the state court should not be considered. 118 F.2d at 419, 420. A 1968 case, citing New England Mut., stated that the rule is "that absent state cases in point, it becomes the duty of the court to arrive at the decision that reason dictates, with the faith that the state courts will arrive at the same decision." Ins. Co. of North America, v. English, 395 F.2d 854, 860 (5th Cir.1968).

Two years later, another court, citing New England Mut. and Ins. Co. of North America, subtly changed the phrasing and the meaning of the principle. "The Court must attempt to arrive at a decision consonant with that which, in faith, it believes the state court would reach." Alabama Great Southern R. Co. v. Allied Chemical Co., 312 F.Supp. 3, 8 (E.D.Va.1970). This latter approach has gained almost universal acceptance. See, e.g. Stancil v. Merganthaler Linotype Co., 589 F.Supp. 78 (D.Hawaii 1984). These cases have, however, adhered to the principle that dicta or chance expressions in prior state court opinions are not determinative, and should not overcome the federal court's considered conclusion. Id.

The distinction between these two approaches is not insignificant, as the court will likely give different weight to the various sources of persuasive authority depending on whether they are viewed from the perspective of a federal district court or from the perspective of a state supreme court. This court will not presume to divine the thinking or inclinations of the justices of the North Dakota Supreme Court, but will attempt to examine and weigh the persuasive authority as that court would if this issue were before it. Those sources include the case law of sister states, the case law of the other states, the majority rule and modern trend if there are such, and principles of justice and equity. It is the opinion of this court that there is no conflict between the goal of seeking the best legal conclusion and the goal of seeking the conclusion that the North Dakota Supreme Court would reach.

As the states have abandoned the harsh and outdated rule of contributory negligence they have replaced it with one of two general types of comparative negligence. A number of jurisdictions have adopted "pure" comparative negligence. Under this rule, every party is liable for its own share of the negligence. If, for example, a plaintiff bears 60% of the responsibility for the injuries he has suffered, he will bear 60% of the cost, while the negligent defendant whose responsibility is 40% will be liable for 40% of the cost. Other jurisdictions, including North Dakota, have opted for a system of "modified" comparative negligence. These systems vary in detail, but all prohibit a plaintiff who is assigned more than 50% of the causal negligence from recovering any damages. Following this approach the 40% negligent defendant in the example above would be completely free from any liability. Whatever the merits of the policy reasons for the adoption of modified comparative negligence, such systems lead to a number of unavoidable complications, one of which confronts this court today.

Modified comparative negligence jurisdictions follow one of two rules for determining the damage award in cases with multiple tortfeasors at least one of which is less negligent than the plaintiff: the "Wisconsin rule" and the "unit rule." Under the Wisconsin rule the plaintiff's share of the negligence is compared in turn with the negligence apportioned to each individual defendant. Any defendant whose percentage of the negligence is lower than, or, in North Dakota, equal to, the plaintiff's, is dismissed from the case. Under the unit rule the plaintiff's share of the negligence is compared to the sum of the shares of negligence apportioned to the other negligent actors. If the plaintiff's share is less than that sum, then the plaintiff can recover from each of the defendants. This court must determine which of these rules should, from the perspective of the North Dakota Supreme Court, be applied in this case.

Of the thirty seven North Dakota Supreme Court cases in which NDCC § 9-10-07 is cited, three touch on the issue at hand. The court's recitation of the facts in Keyes v. Amundson, 343 N.W.2d 78 (N.D. 1983) (Keyes I), reveals that the jury had apportioned 40% of the negligence to the plaintiff and 40% and 20% to the two defendants, and that the trial court, following the Wisconsin rule, had dismissed the action. The supreme court, however, specifically disavowed any endorsement of the Wisconsin rule that might have been implied by this recitation of the facts.

We express no opinion on whether or not § 9-10-07, N.D.C.C., prohibits recovery in this situation. Other jurisdictions construing similar statutes have reached varying results in cases where the plaintiff's negligence is as great as each individual defendant's negligence, but less than the aggregate negligence of all defendants.... Because Keyes has not raised the issue, we need not address it at this

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