Idaho Dept. of Labor v. Sunset Marts, Inc.

• Decision Date: 20 May 2004
• Docket Number: No. 29069.,29069.
• Citation: 140 Idaho 207,91 P.3d 1111
• Parties: IDAHO DEPARTMENT OF LABOR; Jerry Brown and Debbie Brown, husband and wife; Patricia Farrington and Richard Farrington, wife and husband; Maria Gray; Brett Pippenger, surviving spouse of Jessica Pippenger; Bryce Pippenger, child of Jessica Pippenger; Blake Pippenger, child of Jessica Pippenger; Ann Marie Rowe, surviving spouse of Arthur Rowe, Plaintiffs-Respondents, v. SUNSET MARTS, INC.; Sunset Marts, Inc., d/b/a Deano's; James Casey and Eugena Casey, individually and as husband and wife; Stephen Bush and Jane Doe Bush, individually and as husband and wife, Defendants-Appellants, and Hayes Food Store and Ellie Hayes, Defendants-Intervenors-Appellants.
• Court: Idaho Supreme Court

91 P.3d 1111

140 Idaho 207

IDAHO DEPARTMENT OF LABOR; Jerry Brown and Debbie Brown, husband and wife; Patricia Farrington and Richard Farrington, wife and husband; Maria Gray; Brett Pippenger, surviving spouse of Jessica Pippenger; Bryce Pippenger, child of Jessica Pippenger; Blake Pippenger, child of Jessica Pippenger; Ann Marie Rowe, surviving spouse of Arthur Rowe, Plaintiffs-Respondents, v. SUNSET MARTS, INC.; Sunset Marts, Inc., d/b/a Deano's; James Casey and Eugena Casey, individually and as husband and wife; Stephen Bush and Jane Doe Bush, individually and as husband and wife, Defendants-Appellants, and Hayes Food Store and Ellie Hayes, Defendants-Intervenors-Appellants.

No. 29069.

Supreme Court of Idaho, Boise, March 2004 Term.

May 20, 2004.

Hall, Farley, Oberrecht & Blanton, P.A., Boise, for appellants Sunset Marts, Inc., and James and Eugena Casey. Raymond D. Powers argued.

Miller, Devlin, McLean & Weaver, P.S., Spokane, Washington, for appellants Hayes Food Store and Ellie Hayes. J. Scott Miller argued.

Anderson Julian & Hull, Boise, for respondent Idaho Department of Labor. Phillip J. Collaer argued.

Keeton & Tait, Lewiston, for respondents Jerry and Debbie Brown and Patricia and Richard Farrington. John R. Tait appeared.

Chenoweth Tyler & Snyder, Orofino, for respondent Maria Gray. E. Clayne Tyler appeared.

Aherin, Rice & Anegon, Lewiston, for respondents Brett, Bryce, and Blake Pippenger. Anthony C. Anegon appeared.

EISMANN, Justice.

This is an appeal from an order for partial summary judgment, striking the affirmative defenses of comparative fault raised by defendants who were alleged to have sold or furnished alcoholic beverages to an obviously intoxicated driver. The district court certified the partial summary judgment as final under Rule 54(b) of the Idaho Rules of Civil Procedure, and the defendants appealed. Although the order for partial summary judgment was not properly certified as final under Rule 54(b), we will treat the appeal as an appeal by permission under Idaho Appellate Rule 12, and we reverse the order for partial summary judgment.

I. FACTS AND PROCEDURAL HISTORY

On June 17, 1998, a pickup being driven by Charles Bogar veered into the oncoming lane of Highway 12 and collided head on with a Chevrolet Suburban. Bogar and Darrell Miller, his passenger, were killed in the collision, as were Arthur Rowe, the driver of the Suburban, and Jessica Pippenger, one of the passengers. The other passengers in the Suburban were Jerry Brown, Patricia Farrington, and Maria Gray. All of the persons in the Suburban were employees of the Idaho Department of Labor and were within the course and scope of their employment at the time of the collision. A blood test administered at the scene determined that Bogar's blood alcohol content was at .26%, which was over three times the legal limit.

On June 14, 2000, the Plaintiffs filed this action seeking to recover damages against the Defendants alleging that they had sold or otherwise furnished alcohol to Bogar when he was obviously intoxicated. The Defendants alleged in their answers the affirmative defense of comparative negligence. On November 21, 2001, the Plaintiffs filed a motion for partial summary judgment seeking to have that defense held inapplicable to this case. The district court ruled that Bogar's negligence was irrelevant and could not be considered by the jury. On September 23, 2002, it entered a partial judgment dismissing Defendants' affirmative defense of comparative fault, and it certified that partial judgment as final pursuant to Rule 54(b) of the Idaho Rules of Civil Procedure. The Defendants then timely appealed.

II. ANALYSIS

The first issue we must address is whether this Court has jurisdiction to hear the appeal. Rule 54(b)(1) provides, insofar as is relevant, as follows:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment upon one or more but less than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of the judgment.

The rule permits certification of a partial judgment as final only when the trial court directs judgment "upon one or more ... of the claims or parties." Comparative negligence is an affirmative defense. Idaho R. Civ. P. 8(c). There is a difference between a "claim" and a "defense." For example, Rule 8(a)(1) of the Idaho Rules of Civil Procedure provides, "A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(b) states, "A party shall state in short and plain terms the defenses to each claim asserted." Rule 12(b) provides, "Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion." It further states, "If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief." Likewise, Rule 12(h)(2) refers to the "defense of failure to state a claim upon which relief could be granted." A claim seeks affirmative relief. A defense seeks to diminish or defeat the relief sought by a claim. Rule 54(b) does not provide for certifying as final a partial judgment dismissing a defense. As we stated in Rife v. Long, 127 Idaho 841, 845, 908 P.2d 143, 147 (1995):

In order for a partial judgment to be certified as final and appealable under Rule 54(b), the order granting partial judgment must finally resolve one or more of the claims between the parties.... This rule may not be invoked to permit the appeal of a partial adjudication of the rights of one of the parties; it is only applicable in a multiple party situation if there is a complete disposition of a claim relating to the party seeking to invoke the rule.

Even though the district court's order for partial summary judgment was not appealable as a matter of right, we have in limited circumstances treated such appeals as permissive appeals under Idaho Appellate Rule 12. In Merritt v. State, 113 Idaho 142, 742 P.2d 397 (1986), the district court issued a Rule 54(b) certificate certifying as final its order denying a motion for summary judgment. Although we later ruled that the order was not appealable as a matter of right (the denial of a motion for summary judgment does not resolve any claims), we accepted the appeal as a permissive appeal of an interlocutory order under Idaho Appellate Rule 12. Likewise, in North Pacific Insurance Co. v. Mai, 130 Idaho 251, 939 P.2d 570 (1997), the plaintiff appealed the denial of its motion for summary judgment. In deciding to treat the appeal as a permissive appeal under Idaho Appellate Rule 12, this Court stated:

North Pacific did not seek permission to appeal, Mai did not question the appealability of the trial court's denial of summary judgment, and we did not identify the question concerning appealability until after oral argument. Under these circumstances, and because the trial court's decision involves a controlling question of law as to which there is substantial grounds for difference of opinion and because an immediate appeal may materially advance the orderly resolution of the litigation, we will consider and treat this appeal as an appeal by permission under I.A.R. 12.

130 Idaho at 253, 939 P.2d at 572 (citation omitted). In this case, the parties have briefed and argued the issue, the district court's order granting partial summary judgment involved a controlling question of law as to which there is substantial grounds for difference of opinion, and an immediate appeal may materially advance the orderly resolution of this litigation. Therefore, we will treat this appeal as an appeal by permission under Idaho Appellate Rule 12.

In Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969), this Court first addressed the issue of the liability of vendors of intoxicants for the torts of their customers. We held that there was no liability because the vending of intoxicants was not the proximate cause of the damage. "It is nearly universally held that it is the consumption of intoxicants that constitutes the proximate cause of damage to third parties resulting from the tortious or unlawful acts of the consumer and that the vending of intoxicants is too remote to be considered a proximate cause." 93 Idaho at 392,462 P.2d at 57 (citations omitted). We next considered the issue in Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980). We noted that a claim for negligence was comprised of four elements, which we stated as follows: "(1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injuries; and (4) actual loss or damage." 101 Idaho at 619,619 P.2d at 137. We then overruled Meade v. Freeman, stating, "We therefore declare that that decision, to the extent it infers that under common-law rule and present statutes the vending of intoxicants can never be the proximate cause of damage to third parties resulting from the tortious or unlawful acts of the consumer, is overruled." 101 Idaho at 621,619 P.2d at 139. Thus, both Meade v. Freeman and Alegria v. Payonk were based upon the issue of whether the vending of intoxicants could be a proximate cause of damage to third parties caused by the consumer of those intoxicants. Because the facts of Alegria involved the...