Jovanovich v. U.S.
| Decision Date | 01 April 1987 |
| Docket Number | No. 85-4409,85-4409 |
| Citation | 813 F.2d 1035 |
| Parties | Peter JOVANOVICH and Julienne Jovanovich, his wife, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wade J. Dahood, Anaconda, Mont., for plaintiffs-appellees.
Michael E. Robinson, Marc P. Richman, Richard K. Willard, Bryan H. Dunbar, Washington, D.C., for defendant-appellant.
Appeal from the United States District Court for the District of Montana.
Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges.
The United States Government appeals from an adverse judgment in a tort claims action. We must affirm, for the issues raised on appeal were not raised in the trial court and cannot provide any basis for reversal.
Peter Jovanovich was seriously injured while he was attempting to service a United States Air Force Minuteman missile container during rail transportation. Jovanovich was an employee of the Burlington Northern Railroad, to which the Air Force had consigned the missile for shipment.
The missile was encased in a special container with an environmental control unit designed to keep the missile within its temperature tolerance. The Air Force consignment to the railroad required the railroad to service the container with oil and gasoline at least every twenty-four hours. The government provided no instructions for this servicing.
The accident occurred when the train carrying the missile stopped at the Silver Bow Interchange in Montana. Jovanovich was attempting to gain access to the oil compartment. He climbed onto a narrow walkway on the side of the unit. Other than a pipe located high up on the unit, there were no safety rails or handholds. He lost his footing and fell, receiving a serious injury.
Jovanovich sued the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-80 (1982), for negligent failure to provide safety equipment or instructions for servicing the missile container. The United States filed a third-party complaint against the Burlington Northern Railroad alleging that the railroad's negligence in failing to provide instructions was the cause of the plaintiff's injuries.
The railroad, however, had already settled with Jovanovich and executed what is commonly known as a "Pierringer release," after the seminal case approving its use, Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). In return for $153,000, Jovanovich released all of his claims against the Burlington Northern and agreed to indemnify the railroad against any claims that might be asserted against it by the United States. The agreement contemplated the plaintiff's pursuit of his remaining claim against the non-settling defendant, the United States.
The railroad moved for summary judgment based upon the release, pointing out that in a jurisdiction like Montana that apportions damages on the basis of fault, there was no need for the settling defendant to remain in the case. The factfinder at trial could impose liability upon the non-settling defendant for that portion of the damages attributable to it. The government did not oppose the summary judgment, and the court dismissed the railroad from the case. The appropriateness of the dismissal or of the Pierringer release has never been questioned.
Pursuant to stipulation of the plaintiff and the United States, the matter went to trial before a magistrate. The magistrate concluded that the United States was negligent by failing to place handholds on the side of the unit, and by failing to provide warnings either to the plaintiff or to the railroad about the proper method to service the unit. The magistrate also found that the plaintiff was not at all contributorily negligent. The judgment imposed a total of approximately $600,000 in damages against the government, representing an award for medical expenses, pain and suffering, and loss of past and future earning capacity to Jovanovich, and for loss of consortium to his wife.
The government raises two issues on appeal. The first is that the district court erred in assessing damages against the government alone and failing to make a proportionate allocation of fault and damages between the government and the railroad as contemplated by the Pierringer release. The second is that the court erred in failing to deduct income taxes from the award for lost earnings.
The government, however, raises both issues for the first time on appeal....
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