National Farmers Union Property and Cas. Co. v. Frackelton, 82SC31

• Decision Date: 18 April 1983
• Docket Number: No. 82SC31,82SC31
• Citation: 662 P.2d 1056
• Parties: NATIONAL FARMERS UNION PROPERTY AND CASUALTY CO., Petitioner, v. William James FRACKELTON, Respondent.
• Court: Colorado Supreme Court

Page 1056

662 P.2d 1056

NATIONAL FARMERS UNION PROPERTY AND CASUALTY CO., Petitioner, v. William James FRACKELTON, Respondent.

No. 82SC31.

Supreme Court of Colorado,

En Banc.

April 18, 1983.

As Modified on Denial of Rehearing May 2, 1983.

Robert C. Dawes, Durango, DeMoulin, Anderson, Campbell & Laugesen, P.C., Richard W. Laugesen, Denver, for petitioner.

Tom Goldsmith, Telluride, Charles Tindell, Daytona Beach, for respondent.

Bennett S. Aisenberg, Denver, for Colorado Trial Lawyers Ass'n, amicus curiae.

ERICKSON, Justice.

This appeal involves the interpretation of and relationship between the comparative negligence statute, section 13-21-111, C.R.S.1973 & 1982 Supp., and the Uniform Contribution Among Tortfeasors Act, sections 13-50.5-101 to 106, C.R.S.1973 (1982 Supp.). In National Farmers Union Property & Casualty Co. v. Frackelton, 650 P.2d 571 (Colo.App.1981), the court of appeals reversed the district court's ruling that contribution among tortfeasors may be obtained in a declaratory judgment action by a party to a prior negligence lawsuit from a non-party to the same lawsuit. For the reasons set forth in this opinion we affirm the judgment of the court of appeals. The district court's summary judgment is reversed and the case is remanded for amendment of the claim for contribution consistent with this opinion.

I.

In 1976, William Frackelton and Robert Kerr suffered severe electrical burns while working at a job site near Telluride, Colorado. Frackelton and Kerr, who worked for different employers, were inserting a cable into a conduit attached to a power pole. A cap had been removed from the end of the conduit. As the two men pushed the cable up the conduit it came into contact with the power lines on top because of the absence of the cap, causing electroshock injuries. San Miguel Power Association (San Miguel) was responsible for maintaining the power poles and lines and was also in charge of supervising the work in which Kerr and Frackelton were engaged.

Frackelton and Kerr individually asserted claims for negligence against San Miguel for the injuries which they suffered. The district court consolidated both claims for trial, C.R.C.P. 42, because of the similarity of factual and legal issues. Frackelton, however, was never joined as a party in the Kerr case and Kerr was not a party in the Frackelton case. San Miguel, which originally filed a counterclaim alleging that Frackelton was responsible for Kerr's injuries, dropped the counterclaim before trial.

During the trial, Frackelton presented his case as a plaintiff seeking damages in negligence from a sole defendant. In neither case did San Miguel or Kerr assert that Frackelton was jointly responsible for Kerr's injuries, and San Miguel did not seek contribution from Frackelton as a joint tortfeasor. Nevertheless, the trial court, on its own motion, instructed the jury to make a comparison of Frackelton's and San Miguel's negligence in the Kerr suit.

The jury returned a verdict in the Kerr suit finding Kerr 10% negligent, Frackelton 35% negligent, and San Miguel 55% negligent in causing Kerr's injuries. The jury awarded $690,000 in damages to Kerr, which was reduced by 10% to $621,000. In the Frackelton suit, the jury found Frackelton 38% negligent and San Miguel 62% negligent, and awarded Frackelton $475,000, which was reduced by 38% to $294,500. The only issues to be resolved in the Frackelton case were damages for the injuries suffered by Frackelton and the comparative fault of the parties.

The petitioner, National Farmers Union Property and Casualty Co. (NFU), was San Miguel's liability insurer. NFU paid Kerr's judgment in full and then commenced a declaratory judgment action seeking contribution from Frackelton. In the declaratory judgment action, NFU sought a reduction in the amount it owed Frackelton. NFU asked for a set-off against the amount it owed Frackelton by the amount paid Kerr above its pro rata share of negligence determined in the prior action. NFU based its action on the jury's findings of relative fault in the Kerr suit among Kerr, Frackelton, and San Miguel.

The district court entered summary judgment in the declaratory judgment action in favor of NFU, finding that Frackelton was bound by the jury's allocation of fault in the Kerr lawsuit. Thus, the court ordered Frackelton to offset $293,800 ¹ (the amount Frackelton would have owed Kerr) against the $294,500 judgment (sixty-two percent of $475,000) he had obtained from San Miguel.

The court of appeals reversed the summary judgment. The court held that Frackelton was not bound by the jury's finding of liability in the Kerr v. San Miguel lawsuit because Frackelton was not a "party" to that claim for relief. Since no judgment was entered against Frackelton vis-a-vis Kerr, the court reasoned that the issue of comparative negligence was not settled among Frackelton, Kerr, and San Miguel. The court of appeals, interpreting the contribution act, also held that contribution "applies only to parties against whom a judgment of liability has been entered, but not necessarily recovered"; and that "the judgment of liability of the several defendants must be entered before it is binding among such defendants in determining their right to contribution." 650 P.2d at 572-73. In our view, the court of appeals has reached the right result, though our analysis differs from the court's in several respects. We specifically disapprove the procedure followed by the district court to resolve issues relating to contribution among joint tortfeasors. We affirm the judgment of the court of appeals for the reasons set forth in this opinion.

II.

A. Multiple Parties

There is no doubt that multiple party issues under the comparative negligence statute and the contribution act are extremely complex legal issues. The confusing interrelationships among issues of joint negligence, settlement, indemnification, and contribution cast some doubts on the efficacy of legislation designed to resolve fairly issues of relative fault and liability. See McNichols, Judicial Elimination of Joint and Several Liability Because of Comparative Negligence--A Puzzling Choice, 32 Okla.L.Rev. 1, 37-38 (1979).

The comparative negligence statute, section 13-21-111, C.R.S.1973 & 1982 Supp., was intended to ameliorate the harsh common law rule which barred a contributorily negligent plaintiff from any recovery. Mountain Mobile Mix v. Gifford, 660 P.2d 883 (S.Ct.1983); Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo.1980). The Uniform Contribution Among Tortfeasors Act, sections 13-50.5-101 to 106, C.R.S.1973 (1982 Supp.), likewise was designed to remedy a harsh common law rule. Before the Act was adopted, contribution among joint tortfeasors was not allowed. Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960). Changing rules of tort liability have expanded the number of parties who could be considered joint tortfeasors, while the rule of joint and several liability left the plaintiff with control over who would ultimately bear the losses. The contribution act remedied this situation by permitting the shifting of losses equitably among those tortfeasors who caused the damages. Laugesen, Colorado's Contribution Among Tortfeasors Act, 6 Colo.Law. 1475, 1475-76 (1977).

The much-needed torts legislation, however, left many unanswered questions. The first and most fundamental question is: To whom do the statutes apply?

The court of appeals held that Frackelton was not a "party" to Kerr's lawsuit against San Miguel in the determination of comparative negligence for the purpose of resolving companion issues of contribution. The court found that Frackelton had never been joined as a co-plaintiff or co-defendant in Kerr's lawsuit nor had any claims or counterclaims been asserted against Frackelton by the original parties. The court reasoned that language in the comparative negligence statute ² "contemplates that the comparison of negligence be made only between parties [of record] to the tort action." 650 P.2d at 572. Similarly, the court read the contribution act to apply only to "parties against whom a judgment of liability has been entered, but not necessarily recovered." Id. (emphasis added). ³ We agree in part with the court of appeals' conclusions.

B. Absent Tortfeasors

Before we discuss Frackelton's status in NFU's declaratory judgment action, we must determine whether the district court was correct in submitting the issue of Frackelton's negligence for the jury's consideration. We conclude that the comparative negligence statute precludes consideration of the negligence of absent tortfeasors by the trier of fact. In determining factual issues only the negligence of the parties to the lawsuit who participate in the trial should be considered in resolving liability under the comparative negligence statute.

The purpose of comparative negligence is to apportion negligence among those who caused the harm. Mountain Mobile Mix v. Gifford, supra. Ideally, the plaintiff and defendant will seek to join every potentially culpable party, either to increase the number of tortfeasors from whom damages can be recovered or to spread liability among multiple tortfeasors. Rules of joint and several liability insure that plaintiffs will recover fully, while the contribution act insures that defendants will pay only their percentage share of liability.

The problem of how to deal with those potentially culpable persons who cannot be brought into a lawsuit is difficult to resolve. Often, through no fault of either the plaintiff or the defendant, jurisdiction over a tortfeasor cannot be obtained, or a statutory or common law immunity may preclude joinder of some potentially culpable individuals. Were we developing a common law of comparative negligence we might reach a different result; our reading of existing statutes and case law, however, convinces us that the negligence of absent tortfeasors should not be considered by the...