Kavadas v. Lorenzen

• Citation: 448 N.W.2d 219
• Decision Date: 20 November 1989
• Docket Number: No. 890056,890056
• Parties: Jeffrey D. KAVADAS, Plaintiff, Appellant and Cross-Appellee, v. Jeffrey Allen LORENZEN, Defendant, and Poor Richard's, Inc., Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 219

448 N.W.2d 219

58 USLW 2339

Jeffrey D. KAVADAS, Plaintiff, Appellant and Cross-Appellee, v. Jeffrey Allen LORENZEN, Defendant and Poor Richard's, Inc., Defendant, Appellee and Cross-Appellant.

Civ. No. 890056.

Supreme Court of North Dakota.

Nov. 20, 1989.

Miller, Norman & Kenney, Moorhead, Minn., for plaintiff, appellant and cross-appellee, argued by Kevin J. Deitz, Moorhead, Minn.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant, appellee and cross-appellant, argued by M. Daniel Vogel, Fargo.

William D. Schmidt, Wheeler Wolf, Bismarck, for amicus curiae North Dakota Trial Lawyers Ass'n. Submitted on brief.

GIERKE, Justice.

Jeffrey Kavadas appealed from a district court order denying his post-trial motion in his personal injury action against Jeffrey Lorenzen and Poor Richard's, Inc., and Poor Richard's cross-appealed from the court's decision to award Kavadas certain costs and disbursements against Lorenzen and Poor Richard's jointly and severally. We affirm.

Kavadas sued Lorenzen and Poor Richard's for injuries he sustained when, in the course of his employment as a Grand Forks police officer, he arrested Lorenzen for driving while under the influence of alcohol on the morning of July 16, 1987. Kavadas alleged that Lorenzen resisted the lawful arrest and assaulted him, seriously injuring his right wrist. Kavadas further alleged that, on the evening of July 15, 1987, Poor Richard's, through its employees, knowingly served Lorenzen alcoholic beverages while he was obviously intoxicated and that Poor Richard's conduct proximately caused Kavadas' injuries.

A jury found that Kavadas sustained $254,000.52 in damages and apportioned 75% fault to Lorenzen and 25% fault to Poor Richard's. Because Lorenzen had no insurance and is judgment proof, Kavadas' recovery was effectively limited under the several liability provisions of Section 32-03.2-02, N.D.C.C., ¹ to $63,500 in damages attributable to Poor Richard's.

Kavadas then moved to have the several liability provisions of Section 32-03.2-02, N.D.C.C., declared unconstitutional so that Lorenzen and Poor Richard's would be jointly and severally liable for the entire judgment. Alternatively, Kavadas moved for a new trial, contending that the trial court erred in failing to give a requested instruction entitled "acting in concert/aiding or encouraging."

The trial court denied Kavadas' motion and entered a judgment awarding Kavadas $190,500.39 from Lorenzen and $63,500.13 from Poor Richard's. The court further determined that it was "difficult, if not impossible, to delineate most of the costs and disbursements attributable to each defendant" and accordingly, except for $78.10 in clearly identifiable costs, awarded Kavadas $6,095.58 costs and disbursements against both defendants jointly and severally. Kavadas appealed, and Poor Richard's cross-appealed.

We initially consider Kavadas' claim that Section 32-03.2-02, N.D.C.C., violates the equal protection provisions of Article I, Sec. 21, N.D. Const. ² Under that statute plaintiffs injured by two or more tortfeasors who do not act in concert in committing a tortious act or aid or encourage the act can not recover under joint and several liability, while plaintiffs injured by two or more tortfeasors who act in concert in committing a tortious act or aid or encourage the act can recover under joint and several liability.

Our standard of review for analyzing equal protection claims depends on the right allegedly infringed upon by the challenged legislative classification. We apply strict scrutiny to legislative classifications that are inherently suspect or infringe upon fundamental rights, and we strike down the challenged classification unless it promotes a compelling government interest and the distinction drawn is necessary to further its purpose. State ex rel. Olson v. Maxwell, 259 N.W.2d 621 (N.D.1977). If a legislative classification infringes upon important substantive rights, we apply an intermediate standard of review, and we uphold the classification if it bears a close correspondence to the legislative goals. Mund v. Rambough, 432 N.W.2d 50 (N.D.1988); Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733 (N.D.1988); Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986). We apply a rational basis test to legislative classifications that are not inherently suspect, or do not infringe upon fundamental or important substantive rights, and we uphold the classification unless it is patently arbitrary and bears no rational relationship to a legitimate governmental purpose. Lee v. Job Service of North Dakota, 440 N.W.2d 518 (N.D.1989); Gange v. Clerk of Burleigh Co. District Court, 429 N.W.2d 429 (N.D.1988); Kadrmas v. Dickinson Public Schools, 402 N.W.2d 897 (N.D.1987), aff'd, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988).

Relying on Hanson v. Williams County, supra, Kavadas argues that the intermediate level of scrutiny ³ is applicable to this classification because it infringes upon a plaintiff's important substantive rights. Kavadas contends that this classification affects a plaintiff's right to recover for injuries under joint and several liability which, he asserts, is an important substantive right. Poor Richard's responds that the rational basis test applies to this case because recovery under joint and several liability does not rise to the level of an important substantive right.

In Hanson v. Williams County, supra, we applied the intermediate level of scrutiny to an equal protection challenge to Section 28-01.1-02, N.D.C.C., a products liability statute of repose. That statute precluded an action by persons who were injured by a product that was initially purchased more than ten years or manufactured more than eleven years before an injury, while permitting actions by persons who were injured within those time periods. Because that classification completely eliminated the right to sue for some injuries before they occurred, we concluded that it involved an important substantive right.

Hanson follows our equal protection cases in which we have generally applied the intermediate level of scrutiny to classifications which have completely prevented a class of injured persons from maintaining an action to recover for their injuries. Bellemare v. Gateway Builders, Inc., supra [intermediate level of scrutiny applicable to statute that prevented a class of plaintiffs from suing for damages for any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property]; Patch v. Sebelius, 320 N.W.2d 511 (N.D.1982) [intermediate level of scrutiny applicable to statute that prevented a class of plaintiffs from suing the state or a state agency]; Benson v. North Dakota Workmen's Compensation Bureau, 283 N.W.2d 96 (N.D.1979) [intermediate level of scrutiny applicable to statute that excluded a class of employees from workmen's compensation]; Herman v. Magnuson, 277 N.W.2d 445 (N.D.1979) [intermediate level of scrutiny applicable to statute that prevented a class of plaintiffs from suing a municipality for defective streets or bridges]; Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974) [intermediate level of scrutiny applicable to automobile guest statute that prohibited a class of plaintiffs from suing for ordinary negligence of host].

In contrast, we have generally applied the rational basis test to statutory classifications which involve economic or social matters and do not deprive a class of plaintiffs from access to the courts. Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338 (N.D.1984) [rational basis test applicable to comparative negligence provisions of Section 9-10-07, N.D.C.C.]; Law v. Maercklein, 292 N.W.2d 86 (N.D.1980) [rational basis test applicable to statute allowing only residents to participate in the Unsatisfied Judgment Fund]; Tharaldson v. Unsatisfied Judgment Fund, 225 N.W.2d 39 (N.D.1974) [rational basis test applicable to statute limiting recovery from Unsatisfied Judgment Fund to $5,000 in cases in which the tortfeasor can not be ascertained, while permitting a $10,000 recovery from the Fund in other cases].

We believe the interest involved in this case is similar to the interests involved in cases in which we have applied the rational basis test. Although the doctrine of joint and several liability provides plaintiffs a measure of protection from insolvent tortfeasors when there are additional tortfeasors who are financially able to bear the total damages, we are not aware of any authority, and none has been cited, which suggests that that doctrine is a constitutionally mandated rule of law, immune from legislative modification or revision. The elimination of joint and several liability affects the amount of damages that an injured party may recover; however, that party is not denied access to the courts. Under this statute, an injured party is not prevented from suing the tortfeasors, obtaining a judgment, and collecting damages in proportion to the relative share of fault of each tortfeasor. The joint and several liability doctrine thus involves allocation of the amount of damages recoverable by a class of injured persons, an issue with economic implications, and is not "a limitation upon the authority of an injured party to bring an action against the tortfeasor." Herman v. Magnuson, supra, 277 N.W.2d at 451. We conclude that the rational basis test is applicable to this equal protection challenge. See Evangelatos v. Superior Court, 246 Cal.Rptr. 629, 44 Cal.3d 1188, 753 P.2d 585 (1988) [rational basis test applicable to equal protection challenge to an initiated measure which limited a tortfeasor to several liability for noneconomic damages and allowed joint and several liability for economic damages]; Beeler v. Van Cannon, 376 N.W.2d 628 (Iowa 1985) [rational basis test applicable to equal protection challenge to statute barring application of joint and...