Conkright v. Ballantyne of Omaha, Inc.

• Decision Date: 12 August 1980
• Docket Number: No. G 78-83 CA 6.,G 78-83 CA 6.
• Citation: 496 F. Supp. 147
• Parties: Philomene CONKRIGHT, Plaintiff v. BALLANTYNE OF OMAHA, INC., Ballantyne Instruments & Electronics, Inc. (former name). M. E. BOATMAN CO., INC., Defendant and Cross-Plaintiff, v. BALLANTYNE OF OMAHA, INC., Defendant and Cross-Defendant.
• Court: U.S. District Court — Western District of Michigan

496 F. Supp. 147

Philomene CONKRIGHT, Plaintiff v.BALLANTYNE OF OMAHA, INC., Ballantyne Instruments & Electronics, Inc. (former name).

M. E. BOATMAN CO., INC., Defendant and Cross-Plaintiff, v.BALLANTYNE OF OMAHA, INC., Defendant and Cross-Defendant.

No. G 78-83 CA 6.

United States District Court, W. D. Michigan, S. D.

August 12, 1980.

Robert J. VanLeuven, McCroskey, Libner, VanLeuven, Kortering, & Cochrane, Muskegon, Mich., for plaintiff.

David R. Munroe, Landman, Luyendyk, Latimer, Clink & Robb, Muskegon, Mich., for defendant Ballantyne.

Don V. Souter, Cholette, Perkins & Buchanan, Grand Rapids, Mich., for defendant Boatman.

OPINION

MILES, Chief Judge.

This matter presents an example of the difficulties involved in interpreting prior decisional and statutory law of the State of Michigan so as to accommodate the adoption of a pure comparative negligence system.¹Since, under the doctrine of Erie Railroad Co. v. Tompkins,304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188(1938), this Court must in diversity cases apply the law of the forum state, the Court's function is not to determine what it believes is the "best" or the "fairest" accommodation between principles of comparative negligence and of prior precedent; rather, the federal court — in the absence of any state court holding on a particular question — must decide which approach the state courts are most likely in the future to embrace.SeeC. Wright, Handbook of the Law of Federal Courts§ 58, at 270-71 (3d ed. 1976).In this casethe Court is assigned the task of determining the future course of Michigan law relating to contribution and indemnity among joint tortfeasors under comparative negligence, and specifically the effect of such rules upon the settlement of claims against individual defendants in multi-defendant lawsuits.

The pertinent facts of this case may be briefly stated.The plaintiff seeks damages, on theories of negligence and warranty, for injuries sustained from her operation of a deep fat fryer, manufactured by defendant Ballantyne, so as to cause her to suffer severe burns from being sprayed with hot, pressurized oil.Defendant Boatman is a distributor of Ballantyne's machines, and the machine which caused plaintiff's injuries was sold to plaintiff's husband by an employee of Boatman.²

The complaint was filed on February 17, 1978, and has since been amended several times; the most recent amendment, plaintiff's fourth amended complaint, was filed on July 20, 1979.It may be deduced from the pleadings and correspondence in the file of this case that in May or June of 1980plaintiff and defendant Boatman engaged in serious settlement negotiations, resulting in an apprehension on the part of defendant Ballantyne that the case might be settled and disposed of as to its codefendant.Consequently, Ballantyne filed on June 26, 1980, a motion for leave to file a cross-claim against Boatman for contribution and indemnification.Subsequent to this, on July 9, 1980, plaintiff and defendant Boatman filed jointly a motion for dismissal of plaintiff's claim against Boatman stating that these parties had indeed agreed upon a settlement.These two motions are essentially antagonistic, plaintiff and Boatman opposing the granting of leave for the proposed cross-claim, and Ballantyne opposing the dismissal of Boatman as partydefendant.

COMPARATIVE CONTRIBUTION

To aid in analyzing whether, and under what conditions, defendant Boatman should be allowed to settle out of this case, it is first important to understand what would happen if Boatman remained a defendant for the trial of this matter.Neither Placek v. City of Sterling Heights,405 Mich. 638, 275 N.W.2d 511(1979), nor the Michigan products liability statute, M.C.L.A. § 600.2945 et seq.,M.S.A. § 27A.2945 et seq. — these being the fountainheads of comparative negligence in Michigan — addresses the question of the allocation of relative degrees of fault among joint tortfeasors.To the knowledge of this Court, neither has any subsequent Michigan case or statute.

The Michigan contribution statute, M.C. L.A. § 600.2925a et seq., M.S.A. § 27A.2925(1)et seq., which was adopted prior to the advent of comparative negligence, followed the ruling in Moyses v. Spartan Asphalt Paving Co.,383 Mich. 314, 174 N.W.2d 797(1970) in sounding the death knell for the rule barring contribution between joint tortfeasors.Instead, there was established a right of contribution on the part of one who has paid more than his pro rata share of the common liability of those jointly or severally liable for a particular injury.The effect of this development was not to infringe the joint and several nature of the liability imposed upon concurrent tortfeasors, cf.Maddux v. Donaldson,362 Mich. 425, 108 N.W.2d 33(1961); rather, it was to allow those held jointly and severally liable to seek recovery inter se for amounts paid in excess of their individual pro rata shares.Thus, this approach accomplished the end of eliminating the injustice of a rule forbidding contribution between parties jointly and severally liable, while retaining the power of the plaintiff to seek his entire remedy from the most convenient, available or solvent of those held liable.

What is not accomplished by a law of contribution under which liability is allocated on a pro rata basis, is the assessment of relative fault as between joint tortfeasors so as to allow a corresponding allocation of liability or right of contribution.Under a system of contributory negligence, where the factfinder is not given the job of determining the proportionate negligence of the plaintiff, a decision not to complicate matters by requiring the assessment of relative fault as between codefendants is understandable.However, where a regime of comparative negligence assigns to the factfinder the task of assessing the proportionate fault of the plaintiff, there is less reason to consider the factfinder incompetent to make a similar allocation of fault among joint tortfeasors.Further, the equitable arguments for abandoning a strict doctrine barring recovery by the contributorily negligent plaintiff are similar to equitable claims that a particular defendant should not be held liable for an injury in an amount greater than his proportionate causal fault for such injury.

It is the opinion of this Court that, at least in the area of products liability,³ developments in Michigan law subsequent to the enactment of the Michigan contribution statutes have had the effect of eliminating the pro rata distribution of liability among joint tortfeasors, along with the statute's prohibition of the consideration of relative degrees of fault, M.C.L.A. § 600.2925b,M.S.A. § 27A.2925(2).These principles have been replaced with a system under which relative degrees of fault of joint tortfeasors must be assessed for the purpose of more justly and precisely determining the extent of the liability of individual tortfeasors.Although the question of the effect of comparative negligence upon principles of contribution is one best answered by the legislature, when such answers are not forthcoming the courts are competent to address the problem.In states whose comparative negligence statutes have not addressed the issue of comparative fault of joint tortfeasors, courts have found it necessary and appropriate to adopt judicially rules of proportionate assessment of fault.See, e. g., American Motorcycle Ass'n v. Superior Court,20 Cal.3d 578, 576 P.2d 899, 146 Cal.Rptr. 182(1978);Packard v. Whitten,274 A.2d 169(Me.1971);Bielski v. Schulze,16 Wis.2d 1, 114 N.W.2d 105(1962).Even in the absence of comparative negligence — either judicial or statutory — the New York Court of Appeals has deemed it proper to apportion damages between tortfeasors.Dole v. Dow Chemical Co.,30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382(1972).Given the policy justifications for a system apportioning fault among tortfeasors, the amenability of courts in other states to judicial adoption of such a system, and the apparent willingness of the Supreme Court of Michigan to innovate in this general field, as evidenced in Placek, I find that I must concur with Judge Joiner in concluding that under Michigan law comparative fault among joint tortfeasors is now the rule.Jorae v. Clinton Crop Service,465 F.Supp. 952(E.D.Mich.1979).

Remaining to be considered is in what manner the allocation of liability among joint tortfeasors is to be implemented.In some states it can be said that "several liability has clearly replaced joint and several liability,"Greenwood v. McDonough Power Equipment, Inc.,437 F.Supp. 707(D.Kan.1977)(interpreting Kansas law).In such a jurisdiction each defendant is liable only for his proportionate share of the plaintiff's damages, after they have been reduced by the proportion of plaintiff's contributory negligence.However, such an approach appears to be dependent upon legislative abolition of joint and several liability.SeeH. Woods, Comparative Fault§ 13:4(1978).In light of the arguments supporting the use of contribution rather than several liability as a means of distributing damages among defendants — principally that the defendants, rather than plaintiff, should shoulder the potential burden of one of their number being unavailable or unable to satisfy a judgment — this Court sees no basis for abandoning contribution as the device by which codefendants' liability may be limited under Michigan law.Thus, while the factfinder will determine relative degrees of fault of joint tortfeasors, defendants continue to be jointly and severally liable for plaintiff's damages — reduced, of course, in proportion to plaintiff's negligence as determined — and the allocation of fault among tortfeasors will serve solely as a basis for determining their right of contribution against each other.This is the approach adopted in Jorae, as well as in the American Motorcycle, Packard, and ...