Houser v. Gilbert

• Decision Date: 13 March 1985
• Docket Number: No. 10740,10740
• Citation: 364 N.W.2d 62
• Parties: Glennice L. HOUSER, individually and as surviving wife of Russell M. Houser, deceased; and Patrick S. Houser by his next friend, Glennice L. Houser, Plaintiffs, Appellees and Cross- Appellees, v. Timothy J. GILBERT, Harlin Fraedrich, d/b/a Fraedrich Trucking Co., Defendants, Third-Party Plaintiffs and Cross-Appellants. Mike BRAKKE, Defendant, Third-Party Plaintiff, Appellant and Cross-Appellee, v. Paul BRAKKE, Steven Brakke, Donald Brakke and Virgil Torgerson, Third-Party Defendants. Civ.
• Court: North Dakota Supreme Court

Page 62

364 N.W.2d 62

Glennice L. HOUSER, individually and as surviving wife of

Russell M. Houser, deceased; and Patrick S.

Houser by his next friend, Glennice L.

Houser, Plaintiffs, Appellees and Cross- Appellees, v. Timothy J. GILBERT, Harlin Fraedrich, d/b/a Fraedrich

Trucking Co., Defendants, Third-Party Plaintiffs

and Cross-Appellants.

Mike BRAKKE, Defendant, Third-Party Plaintiff, Appellant and Cross-Appellee, v. Paul BRAKKE, Steven Brakke, Donald Brakke and Virgil

Torgerson, Third-Party Defendants.

Civ. No. 10740.

Supreme Court of North Dakota.

March 13, 1985.

Wegner, Fraase, Nordeng & Johnson, Fargo, for plaintiffs, appellees and cross-appellees; argued by Mark R. Fraase, Fargo.

Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, for defendants, third-party plaintiffs and cross-appellants; argued by John H. Moosbrugger, Grand Forks.

Cahill, Jeffries & Maring, Moorhead, Minn., for defendant, third-party plaintiff, appellant and cross-appellee; argued by Leah Fujimoto, Moorhead, Minn.

ERICKSTAD, Chief Justice.

Timothy J. Gilbert (Gilbert) and Harlin Fraedrich, doing business as Fraedrich Trucking Co. (Fraedrich) appealed from a district court order denying their motion for reimbursement, contribution, or indemnity for $250,000 that they paid Glennice L. and Patrick S. Houser (Houser) to settle the Housers' claims against them for the wrongful death of Russell M. Houser. We affirm.

On October 12, 1981, Russell Houser was killed in a collision between a tractor/trailer he was operating and a tractor/trailer operated by Gilbert. The collision occurred on a highway adjacent to a sugar beet field being harvested by Mike Brakke (Brakke).

Houser brought suit against Gilbert, Fraedrich (the owner of the tractor/trailer operated by Gilbert), and Brakke. Brakke answered the complaint and cross-claimed against Gilbert and Fraedrich for contribution of all or part of any sum required to be paid by Brakke to Houser. Gilbert and Fraedrich answered the complaint and cross-claimed against Brakke for contribution for all or part of any sum required to be paid by them to Houser and for property damages sustained by Fraedrich as a result of the collision. Numerous other third, fourth, and fifth-party complaints not relevant here, involving these and other parties, were instituted and later severed for trial.

Prior to trial, Gilbert and Fraedrich entered into a settlement agreement with Houser, pursuant to which Gilbert and Fraedrich paid Houser $250,000 and Houser's claims against them were dismissed. ¹ Gilbert and Fraedrich remained as parties to the action for the purpose of pressing their claim against Brakke for property damages to Fraedrich's tractor/trailer.

Trial of the action resulted in a special verdict in which the jury determined that: (1) Brakke was 100% negligent and Gilbert was 0% negligent; ² (2) $378,000 "will fairly compensate the Plaintiff, Glennice Houser, and child"; and (3) $47,000 "will fairly compensate Defendant Fraedrich on his cross-claim for destruction of his property."

A judgment in favor of Houser was entered on November 10, 1983, in the amount of $378,000, plus costs and disbursements. A judgment in favor of Fraedrich was entered on November 17, 1983, in the amount of $47,000, plus costs and disbursements.

On December 8, 1983, Brakke served a motion for a new trial. On December 14, 1983, Gilbert and Fraedrich served a motion

"for an Order requiring defendant Mike Brakke to pay to, contribute to, or indemnify defendants Timothy J. Gilbert and Harlin Fraedrich d/b/a Fraedrich Trucking Company in the amount of $250,000.00 or, in the alternative, for an Order requiring plaintiff to repay, contribute to, or indemnify defendants Timothy J. Gilbert and Harlin Fraedrich d/b/a Fraedrich Trucking Company in the amount of $250,000.00."

By order of May 8, 1984, the district court denied Brakke's motion for new trial and denied Gilbert and Fraedrich's motion for payment, contribution, or indemnity. Brakke appealed from the judgments and the order denying his motion for a new trial. Gilbert and Fraedrich appealed from the order denying their motion for reimbursement, contribution, or indemnity.

Pursuant to stipulation of the parties, we remanded the case to allow consideration of a motion for certification under Rule 54(b), N.D.R.Civ.P. On August 20, 1984, the district court determined that there was no just reason for delay and ordered the entry of final judgment pursuant to Rule 54(b), N.D.R.Civ.P. Amended judgments in favor of Houser and Fraedrich were entered on August 23, 1984.

Brakke thereafter appealed from the amended judgments and the May 8, 1984, order denying his motion for a new trial and Gilbert and Fraedrich appealed from the May 8, 1984, order denying their motion for reimbursement, contribution, or indemnity.

Through settlement, stipulation, and dismissal, the only appeal before us is that of Gilbert and Fraedrich. They have raised the following issue:

"Whether, in a wrongful death suit arising out of a motor vehicle accident where three defendants are named and alleged to be negligent tortfeasors, where two of the tortfeasors settle with the plaintiffs prior to trial and obtain a Bartels-type release but remain in the lawsuit to litigate their property damage cross-claim, and where the jury finds the nonsettling defendant 100% negligent and the settling defendants 0% negligent, the settling defendants are entitled to indemnity or contribution from the nonsettling defendant?"

Also before us is a motion by Houser to dismiss the appeal of Gilbert and Fraedrich on the ground that it was not timely filed. Houser and Brakke also assert that the appeal of Gilbert and Fraedrich is frivolous, entitling them to costs and attorney fees pursuant to Rule 38, N.D.R.App.P.

Because the jury determined that Brakke was 100% negligent, Gilbert was 0% negligent, and $378,000 would fairly compensate Houser, Gilbert and Fraedrich assert that they are entitled to reimbursement, contribution, or indemnity under Sec. 9-10-07, N.D.C.C., and Bartels v. City of Williston, 276 N.W.2d 113 (N.D.1979).

Section 32-38-01(4), N.D.C.C., provides:

"4. A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable."

The release executed by Houser expressly reserved all claims against Brakke, whose liability, therefore, was "not extinguished by the settlement." Gilbert and Fraedrich concede that Sec. 32-38-01(4), N.D.C.C., would deny them a contribution recovery against Brakke, but they assert that it is in irreconcilable conflict with Sec. 9-10-07, N.D.C.C., which, under Bartels, supra, must prevail.

Section 9-10-07, N.D.C.C., provides in pertinent part that:

"... 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...."

We concluded in Bartels, supra, that Sec. 32-38-02(1), N.D.C.C., and a portion of Sec. 32-38-04(1), N.D.C.C., had been impliedly repealed by the enactment of Sec. 9-10-07, N.D.C.C. We were not required in that case to determine the effect of Sec. 9-10-07, N.D.C.C., on Sec. 32-38-01(4), N.D.C.C.

Section 32-38-01(4), N.D.C.C., relates to the subject of contributions to amounts paid in settlement of claims without trial. The relevant portion of Sec. 9-10-07, N.D.C.C., quoted above, relates to contributions to damage awards resulting from trial of an action. Because the subject-matters of the two statutes are different, the statutes are not in conflict. We therefore conclude that Sec. 32-38-01(4), N.D.C.C., has not been impliedly repealed by the enactment of Sec. 9-10-07, N.D.C.C. The $250,000 paid by Gilbert and Fraedrich was not a contribution to an award but a settlement of a claim. Gilbert and Fraedrich are, therefore, not entitled to recover contribution from Brakke. Nor have Gilbert and Fraedrich shown any right to indemnification. See Sayler v. Holstrom, 239 N.W.2d 276 (N.D.1976).

In our view, Gilbert and Fraedrich's reliance upon decisions such as Lemmer v. IDS Properties, Inc., 304 N.W.2d 864 (Minn.1980); Lange v. Schweitzer, 295 N.W.2d 387 (Minn.1980); and Samuelson v. Chicago, Rock Island & Pacific Railroad Co., 287 Minn. 264, 178 N.W.2d 620 (1970), is misplaced. In Lemmer, supra, the court concluded that all of the defendants involved had been released by the plaintiffs. In Lange, supra, the plaintiff's recovery was limited because non-settling defendants whose negligence totaled 40% were entitled to contribution from a 60% negligent settling defendant whom the plaintiff had agreed to indemnify for any contribution awarded. Samuelson, supra, involved a settlement that released all claims against all parties.

In view of our conclusion that Sec. 32-38-01(4), N.D.C.C., bars Gilbert and Fraedrich from recovering contribution, we need not determine whether the language of the release they secured, through which they "bought their peace" [See Commissioners' Comment, Uniform Contribution Among Tortfeasors Act (1955 Revised Act), Sec. 1(d), 12 Uniform Laws Annotated (Master Ed.1975), quoted in Bartels, supra, 276 N.W.2d at 116], would also bar contribution.

Several weeks after Gilbert and Fraedrich filed their brief on the merits of their appeal, Houser moved to dismiss the appeal. Ordinarily, we would dispose of a motion to dismiss an appeal before reaching the...