Narkeeta Timber Co., Inc. v. Jenkins, 1999-CA-01099-SCT.

• Citation: 777 So.2d 39
• Decision Date: 30 November 2000
• Docket Number: No. 1999-CA-01099-SCT.,1999-CA-01099-SCT.
• Parties: NARKEETA TIMBER COMPANY, INC. and Lavon McCallum v. Velma JENKINS, Personal Representative of the Estate of Floyzell Hill, Johnny Mosley and Fannie Mosley.
• Court: Mississippi Supreme Court

777 So.2d 39

NARKEETA TIMBER COMPANY, INC. and Lavon McCallum v. Velma JENKINS, Personal Representative of the Estate of Floyzell Hill, Johnny Mosley and Fannie Mosley.

No. 1999-CA-01099-SCT.

Supreme Court of Mississippi.

November 30, 2000.

Rehearing Denied February 22, 2001.

H.W. Williams, III, Ridgeland, Attorney for Appellants. Bennie L. Turner, West Point, Orlando Rodriquez Richmond, Sr., Attorneys for Appellees.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. Narkeeta Timber Co., Inc. and Lavon McCallum ask this Court to hold as a matter of first impression that under Mississippi's tortfeasor liability apportionment statute, Miss.Code Ann. § 85-5-7 (1999), the collective joint and several liability of all defendants contributing to a loss is fifty percent. In other words, Narkeeta and McCallum contend that the statute does not authorize a prevailing plaintiff to recover fifty percent of his award from each defendant. We agree with this reading of this statute and therefore reverse and render.

FACTS AND PROCEEDINGS BELOW

¶ 2. On January 3, 1995, at approximately 6:30 p.m., Floyzell Hill was driving a 1988 Chevrolet truck southbound on U.S. Highway 45 in Noxubee County. Fannie Mosley and her son Johnny Mosley, two of the appellees herein, were passengers in Hill's truck. Lavon McCallum, while in the course and scope of his employment with Narkeeta Timber .Company, Inc., was driving a tractor owned by Waters International Truck, pulling a loaded log pole trailer in the northbound lane on Highway 45. Approximately twenty-five miles south of the accident scene, McCallum discovered that an electrical shortage had caused his tail lights to fail so he drove with his hazard lights flashing en route to the Weyerhaeuser plant in Columbus. Theron Koehn, another defendant in this case, was stopped in his truck at the intersection of Old Macon Road and Highway 45 waiting to turn north onto Highway 45. Koehn testified that he observed the tractor trailer driven by McCallum decreasing speed and flashing what he mistakenly concluded as a turn signal in an apparent attempt to turn off of Highway 45 and onto Old Macon Road. Under this erroneous assumption, Koehn turned his pickup truck from Old Macon Road onto Highway 45. Unfortunately, McCallum continued through the intersection and collided with the rearend of Koehn's truck, the force of which propelled Koehn's truck into the southbound lane of Highway 45 and directly into Hill's truck. As a result of the collision, the Mosleys suffered multiple injuries, and Hill died several days later at a nearby hospital.

¶ 3. After the accident, three separate suits were filed, one for each of the occupants of Hill's truck. Velma Jenkins is the personal representative of the estate of Hill and an appellee herein. Koehn, Narkeeta, and McCallum were the defendants in each of the three cases below. Prior to trial, the cases were consolidated and tried to a verdict. The jury found in favor of each of the plaintiffs.

¶ 4. The jury awarded $1,500,000 to Hill's estate, $500,000 to Johnny Mosley, and $51,066 to Fannie Mosley. The total jury award in favor of the plaintiffs and against each of the defendants is $2,051,066. The jury responded to special interrogatories and determined that Koehn was eighty percent (80%) at fault and that Narkeeta, by virtue of its employee McCallum, was twenty percent (20%) at fault for the plaintiffs' injuries and damages. On September 17, 1997, the final judgments were entered and filed with the circuit court. The verdicts and the total monetary award remain undisturbed and are not at issue in this appeal. Motions for JNOV, or in the alternative, for a new trial and remittitur were denied. On January 30, 1998, Narkeeta filed a motion to authorize the circuit clerk to cancel judgments against McCallum and Narkeeta. After a hearing on the matter, the Noxubee County Circuit Court entered a memorandum opinion and order wherein it denied Narkeeta's and McCallum's motion to authorize the circuit clerk to cancel judgments against them. ¶ 5. On June 18, 1999, Narkeeta and McCallum filed their notice of appeal. The current issue involves payment of the judgment. Narkeeta and McCallum have paid $925,533 and now seek to have the judgment against them dismissed as satisfied, arguing that the payment by them, coupled with a $100,000 payment by Koehn, relieves them of any further obligation to the Mosleys and Jenkins pursuant to Miss.Code Ann. § 85-5-7. Specifically, Narkeeta and McCallum argue that:

THE CIRCUIT COURT ERRED AS A MATTER OF LAW BY REQUIRING McCALLUM AND NARKEETA TO PAY AN ADDITIONAL $ 100,000 OVER THE $ 925,533 ALREADY PAID SINCE THE RESULT WOULD BE TANTAMOUNT TO HOLDING THESE DEFENDANTS JOINTLY AND SEVERALLY LIABLE TO SUCH AN EXTENT AS TO ALLOW THE PLAINTIFFS TO RECOVER MORE THAN 50% OF THEIR RECOVERABLE DAMAGES UNDER MISS. CODE ANN. § 85-5-7(2).

STANDARD OF REVIEW

¶ 6. We review questions of law de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 ¶ 7 (Miss.1999). Therefore, we are not required to defer to the trial court's order that denied Narkeeta and McCallum's motion to cancel the judgment.

¶ 7. Both sides assert that this is an issue of first impression whereupon we are asked to interpret Miss.Code Ann. § 85-5-7. If the language of a statute is plain and unambiguous, then construction is superfluous and will not be allowed:

The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein. Where the statute is plain and unambiguous there is no room for construction, but where it is ambiguous the court, in determining the legislative intent, may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished. Finally all presumptions and intendments must be indulged in favor of the validity of a statute, and its unconstitutionality must appear beyond a reasonable doubt before it will be declared invalid.

Clark v. State ex rel. Miss. State Med. Ass'n, 381 So.2d 1046, 1048 (Miss.1980).

¶ 8. The statute at issue in this case is Miss.Code Ann. § 85-5-7, which states in pertinent part that:

. . . .

(2) [I]n any civil action based on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages.

(3) Except as otherwise provided in subsections (2) and (6) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.

(4) Any defendant held jointly liable under this section shall have a right of contribution against fellow joint tort-feasors. A defendant shall be held responsible for contribution to other joint tort-feasors only for the percentage of fault assessed to such defendant.

. . . .

Evolution of Joint and Several Liability

¶ 9. Mississippi follows joint and several liability which is a method of determining loss apportionment between the plaintiff and multiple tortfeasors. In 1910, Mississippi adopted a pure comparative negligence standard, but in 1952, tortfeasors gained a limited right of contribution among themselves if all of the tortfeasors were named as defendants and none settled before a joint judgment was rendered. H. Wesley Williams, III, 1989 Tort "Reform" in Mississippi: Modification of Joint and Several Liability and the Adoption of Comparative Contribution, 13 Miss. C.L.Rev. 133, 151 (1992). In order to cure the problem of lack of contribution between joint tortfeasors, Mississippi instituted a third-party practice under Mississippi Rule of Civil Procedure 14. However, the usefulness of Rule 14 was greatly diminished if a joint tortfeasor had no substantive right of contribution such as the derivative or secondary liability of the third-party defendant to the third-party plaintiff. Miss. R. Civ. P. 14 cmt. In summary, prior to 1989, plaintiffs had the option to sue one, all or a select group of tortfeasors and collect full damages from those parties sued. Hall v. Hilbun, 466 So.2d 856, 879 (Miss.1985). Plaintiffs could recover the entire amount of the award from any single tortfeasor, no matter the allocation of fault. Id.

¶ 10. On July 1, 1989, the Legislature enacted Miss.Code Ann. § 85-5-7 (1999) wherein it modified the previous rule of law with regard to the amount of damages for which a tortfeasor could be held responsible. Under the old system, we had joint and several liability up to 100% of the judgment. Contrary to the statement of the Court in Hunter, § 85-5-7 does not abolish joint and several liability for up to 50% of the plaintiffs injuries and replace it with several liability. Estate of Hunter v. General Motors Corp., 729 So.2d 1264, 1274 (Miss.1999). Rather, § 85-5-7, by its express language, abolishes joint and several liability over 50% of the judgment and leaves untouched joint and several liability up to 50% of the judgment.

Application to the Instant Case

¶ 11. Narkeeta has conceded that, had Koehn not paid a dime, it would have been forced to pay 50% of the judgment according to the statute. For example, Narkeeta would have been severally liable up to 50% of the judgment. This is consistent with the language of the statute. However, the statute also states that liability for the 50% is not merely several, but joint and several. Here, Koehn has already paid...