Frey v. Snelgrove, 47620.

• Citation: 269 NW 2d 918
• Decision Date: 18 August 1978
• Docket Number: No. 47620.,47620.
• Parties: James R. FREY, a Minor, Appearing by Eugene Frey, His Father and Natural Guardian, and Eugene Frey, Respondents, v. Edward SNELGROVE, et al., Respondents, Firestone Tire & Rubber Company, Appellant.
• Court: Supreme Court of Minnesota (US)

269 N.W.2d 918 (1978)

James R. FREY, a Minor, Appearing by Eugene Frey, His Father and Natural Guardian, and Eugene Frey, Respondents, v. Edward SNELGROVE, et al., Respondents Firestone Tire & Rubber Company, Appellant.

No. 47620.

Supreme Court of Minnesota.

August 18, 1978.

Gray, Plant, Mooty, Mooty & Bennett and James S. Simonson and William L. Killion, Minneapolis, for appellant.

DeParcq, Anderson, Perl, Hunegs & Rudquist, O. C. Adamson, II, Minneapolis, for Frey.

Mahoney, Dougherty & Mahoney, Minneapolis, for Snelgrove.

Considered and decided by the court en banc.

OTIS H. GODFREY, Jr., Justice.^*

This is an appeal taken by defendant Firestone Tire & Rubber Company from a judgment and order of the trial court whereby Firestone was held to be 80 percent responsible for plaintiff's personal injuries suffered in a one-car accident. By verdict and additur the plaintiffs were awarded $838,000 in damages which are not challenged on this appeal. Defendant Firestone claims the trial court erred in admitting certain evidence; in permitting two codefendants to continue as parties after they had settled with plaintiffs during the course of trial; and in not informing the jury of that settlement. We affirm.

The accident happened on March 30, 1973, on Interstate Highway No. 90, near Murdo, South Dakota. Plaintiff was one of the passengers in a Ford station wagon owned by defendant Edward Snelgrove and driven by Tyler Anderson. The vehicle was traveling at speeds of up to 95 miles per hour when the right rear tire blew out. It skidded violently, flew through the air, and finally came to rest over 700 feet away. The driver was killed and this plaintiff was paralyzed from his chest down as a result of the accident.

On the 6th day of trial, plaintiff and defendants Snelgrove and Anderson entered into a so-called Pierringer-type settlement.¹ Plaintiff released the settling defendants as to their portion of the total causal negligence which might be found at trial and further agreed to indemnify the settling defendants from any liability which they might have to Firestone for contribution or indemnity, if those defendants were found chargeable for more than $700,000 of plaintiff's damages. Although the release dismissed the settling defendants, plaintiff expressly reserved the right to continue his action against Firestone. Under the agreement, $700,000 was to be paid to plaintiff after the judgment in the trial, provided that any recovery made by the plaintiff against Firestone was to be credited against the amount paid by the settling defendants.

Upon learning of the release, the trial court ruled that the settling defendants could not cross-examine witnesses regarding damages and that no party could refer to the settlement agreement during trial or argument.

Two days later, on the 8th day of trial, Firestone moved to exclude the settling defendants from further participation in the trial. All defendants had cross-claims against each other; Firestone refused to dismiss its claims with prejudice; and the trial court ruled that the settling defendants could continue to participate in the lawsuit. The jury was never advised of the existence and legal effect of the settlement.

The issues presented for review are:

1. Should settling defendants be thereafter dismissed from further participation in the trial?

2. Should the jury be informed of a settlement between some of the parties?

3. Did the trial court err in permitting the settling defendants to cross-examine plaintiff's expert witness and in admitting certain other evidence adverse to Firestone?

1. The principal issues raised by this appeal are novel in Minnesota. Where there are multiple defendants in a tort action, the general rule of law is that a release of one joint tortfeasor releases all others. E. g., Gronquist v. Olson, 242 Minn. 119, 64 N.W.2d 159 (1954). In this case, however, the plaintiff specifically reserved his right to proceed against the nonsettling defendants, agreeing to indemnify the settling defendants from the liability they might have for contribution or indemnity to the remaining litigants. Firestone's motion to dismiss the settling defendants was denied due largely to Firestone's refusal to dismiss its own cross-claims with prejudice. Under the facts of this case, Firestone is precluded from now claiming that the trial court should have dismissed all cross-claims and removed the settling defendants from the lawsuit.

The use of a so-called Pierringer release is in accord with Minnesota practice and our law of comparative negligence in tort actions. The bar and trial bench of this state have recently been following the procedures set forth in Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). In that decision the Wisconsin Supreme Court approved the release of a joint tortfeasor which reserved the plaintiff's right to maintain the cause of action against the remaining defendants and also held that the nonsettling defendants' right to contribution can be cut off by a plaintiff who agrees to indemnify the settling defendants against any claim of contribution. By the terms of this type of release the nonsettling defendant will never be required to pay more than his fair share as determined by the jury's finding of comparative negligence.

As the Wisconsin Supreme Court stated in Peiffer v. Allstate Insurance Company, 51 Wis.2d 329, 355, 187 N.W.2d 182, 185 (1971):

"It is a Pierringer-type release that the trial court held the release here involved to be. As such, it released the settling tort-feasor from any future liability including contribution, deriving from the automobile accident involved.

Additionally, it assured that the settling tort-feasor could not be made a party defendant in any action brought against nonsettling tort-feasors. Thus, since the plaintiff is limited in recovery to the unsatisfied percentage of the damages — the percentage attributable to the nonsettling tort-feasor — there is to be no payment sought beyond the nonsettling tort-feasor\'s share and there is no basis for contribution."

A definitive article by John E. Simonett on the use of the Pierringer release in Minnesota appeared in 3 Wm. Mitchell L.Rev. 1. The author points out that "the release was designed to operate in a jurisdiction which has comparative negligence to apportion liability between defendants, uses the special verdict form, and allows contribution between joint tortfeasors." Simonett, Release of Joint Tortfeasors: Use of the Pierringer Release in Minnesota, 3 Wm. Mitchell L.Rev. 1, 11 (1977) (hereafter Simonett).

Minnesota has all these prerequisites. We therefore hold that where the plaintiff has entered into a Pierringer-type release, settling his claims with some defendants and agreeing to pay any cross-claims of the nonsettling defendants, the settling defendants usually should be dismissed, but their negligence should nevertheless be submitted to the jury. If the release so provides, the indemnity cross-claims between all defendants should also be dismissed.

The Minnesota comparative negligence statute, Minn.St. 604.01, subd. 1, provides in part that where joint liability exists "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."² The Pierringer release is based on the formula that each joint tort-feasor including the nonsettling defendant is liable only for that part of the award which is his percentage of casual negligence. Since the nonsettling defendant is relieved from paying more than his fair share of the verdict, the other defendants may properly be dismissed from further participation in the trial.

There is no legal reason why the indemnity provision of the release should not also be upheld if it is in accord with public policy. The courts should encourage settlements openly made with prompt and adequate notice to the trial judge and all interested parties. See, Schmidt v. Smith, 299 Minn. 103, 216 N.W.2d 669 (1974).

2. Firestone further asserts error in the trial court's...