Nilsson v. Bierman
| Decision Date | 29 December 2003 |
| Docket Number | No. 2003–028.,2003–028. |
| Citation | 839 A.2d 25,150 N.H. 393 |
| Court | New Hampshire Supreme Court |
| Parties | Leif NILSSON v. Joseph A. BIERMAN. |
McDowell & Osburn, P.A., of Manchester (Jeffrey B. Osburn and David S.V. Shirley on the brief, and Mr. Osburn orally), for the plaintiff.
Desmarais, Ewing & Johnston, PLLC, of Manchester (Fred J. Desmarais and Heather G. Silverstein on the brief, and Ms. Silverstein orally), for the defendant.
McNeill, Taylor & Gallo, P.A., of Dover (R. Peter Taylor on the brief), for the New Hampshire Trial Lawyers Association, as amicus curiae.
The plaintiff, Leif Nilsson, appeals from a jury verdict in Superior Court (Barry , J.) that apportioned fault on his negligence claim between the defendant, Joseph A. Bierman, and Eric Robert Knight, a joint tortfeasor who settled before trial. See RSA 507:7–e (1997). The defendant cross-appeals, arguing that the court's jury instructions regarding speed were misleading. We affirm.
The plaintiff was a passenger in Knight's car when Knight failed to stop at a stop sign and collided with the defendant's car. The plaintiff sued both the defendant and Knight for his injuries. Shortly before trial, he settled his claim against Knight for $25,000.
Over the plaintiff's objection, the trial court instructed the jury about proportional fault and, in special verdict questions, asked it to assess the percentage of fault, if any, that was attributable to Knight and the defendant. The jury awarded damages in the amount of $170,000. The jury found both the defendant and Knight legally at fault for the plaintiff's injuries. The jury apportioned ninety-nine percent of this fault to Knight and one percent to the defendant.
The plaintiff moved to amend the verdict to make the defendant responsible for the entire damage award less the $25,000 settlement from Knight. The court denied the motion.
On appeal, the plaintiff argues that the court committed legal error by requiring the jury to apportion fault between the defendant and Knight. He asserts that the statute governing apportionment, RSA 507:7–e, mandates apportioning fault among parties, not between a nonsettling and a settling tortfeasor. He contends also that the statute applies only when the plaintiff was comparatively negligent, not, as here, when the plaintiff was not negligent.
Resolution of this appeal requires us to reconcile conflicting portions of RSA chapter 507. In matters of statutory interpretation, this court is the final arbiter of the legislature's intent. Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 585, 825 A.2d 480 (2003). We begin by examining the language of the statute and ascribing the plain and ordinary meanings to the words the legislature used. Id . We do not construe statutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme. Big League Entm't v. Brox Indus., 149 N.H. 480, 483, 821 A.2d 1054 (2003). "When interpreting two statutes which deal with a similar subject matter, we ... construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statute." Pennelli v. Town of Pelham, 148 N.H. 365, 366, 807 A.2d 1256 (2002) (quotation omitted).
Section 7–e is part of a "comprehensive statutory framework for apportionment of liability and contribution." 8 R. McNamara, New Hampshire Practice, Personal Injury—Tort and Insurance Practice § 4.63, at 4–98 (3d ed.2003). The other provisions in this statutory scheme are: RSA 507:7–d (1997) (comparative fault); RSA 507:7–f (1997) (contribution among tortfeasors); RSA 507:7–g (1997) (enforcement of contribution); RSA 507:7–h (1997) (effect of release or covenant not to sue); and RSA 507:7–i (1997) (inadmissible evidence and post-verdict procedure). The legislature intended these provisions to function as "a unified and comprehensive approach to comparative fault, apportionment of damages, and contribution." Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 344–45, 529 A.2d 875 (1987).
Section 7–e provides, in pertinent part:
The plaintiff argues that the plain and ordinary meaning of the word "party" does not include a defendant who, like Knight, settled with the plaintiff before trial. We disagree. A "party" is "[o]ne who takes part in a transaction" or "[o]ne by or against whom a lawsuit is brought." Black's Law Dictionary 1144 (7th ed.1999). As other courts have noted when construing similar statutes, the term "party" may mean persons involved in an accident, defendants in a lawsuit, or all litigants in a lawsuit. Benner v. Wichman, 874 P.2d 949, 956 (Alaska 1994). We hold that for apportionment purposes under section 7–e, I(b), the word "party" refers to "parties to an action, including ... settling parties." Id . at 958.
This construction is consistent with our decision in Rodgers v. Colby's Ol' Place, 148 N.H. 41, 802 A.2d 1159 (2002). In that case, we applied section 7–e, I, to the defendants even though they settled with the plaintiff before trial. Id . at 41–44, 802 A.2d 1159. The settlement agreement had provided that one defendant was liable for fifty percent of the plaintiffs' damages, while the other was liable for less than fifty percent. Id . at 42, 802 A.2d 1159. The parties further agreed that the defendant who was liable for more than fifty percent of the plaintiffs' damages was judgment proof. Id . The plaintiff sought to reallocate the judgment proof defendant's liability to the less negligent defendant. Id . We ruled that under section 7–e, I(b), the less negligent defendant was only liable for his portion of damages. Id . at 42–43, 802 A.2d 1159.
Our construction is also in accord with decisions from other jurisdictions. Most jurisdictions permit juries to allocate fault among settling and nonsettling tortfeasors. See Carroll v. Whitney, 29 S.W.3d 14, 17, n. 5 (Tenn.2000) (). Many jurisdictions even permit a jury to consider nonparties when apportioning fault. See 1 Comp. Negl. Manual (CBC) § 14.9 (3d ed.1995). We need not, in this decision, reach the issue of whether a tortfeasor, such as one who is immune from liability or otherwise not before the court, constitutes a "party" under section 7–e. See 2 Comp. Negl. (MB) § 13.20[4] (2002).
The plaintiff further contends that section 7–e, I, does not apply when the plaintiff is not negligent. The plaintiff bases his argument upon Lavoie v. Hollinracke, 127 N.H. 764, 513 A.2d 316 (1986). In that case, we held that apportionment applied only when the plaintiff was contributorily negligent; when the plaintiff was not negligent, the rules of joint and several liability applied. See id . at 768–70, 513 A.2d 316. Our holding was based upon the language of the predecessor to section 7–e, RSA 507:7–a (1983) (repealed 1986).
Former section 7–a provided, in relevant part:
Contributory negligence shall not bar recovery in an action by any plaintiff, or his legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if such negligence was not greater than the causal negligence of the defendant, but the damages awarded shall be diminished, by general verdict, in proportion to the amount of negligence attributed to the plaintiff; provided that where recovery is allowed against more than one defendant, each such defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.
Section 7–a thus linked apportionment and contributory negligence.
By contrast, in 1986, the legislature separated the two concepts. It enacted section 7–d to address contributory negligence and section 7–e to address apportionment. RSA 507:7–d, 7–e. This altered the prior rule under former section 7–a that the jury need not apportion damages unless the plaintiff was contributorily negligent. See Jaswell Drill Corp., 129 N.H. at 344, 529 A.2d 875. As enacted in 1986, section 7–e "provide[d] for apportionment of damages in all actions," not only those involving contributorily negligent plaintiffs. Id .; see also 8 R. McNamara, supra § 12.03, at 12–4 to 12–5.
We decline to address the plaintiff's arguments that apportioning fault between the defendant and Knight violated his constitutional rights because he has not preserved these arguments for our review. See Weldy v. Town of Kingston, 128 N.H. 325, 334–35, 514 A.2d 1257 (1986). Like the plaintiff in Weldy , the plaintiff failed to raise these claims before the trial court instructed the jury, raising them for the first time in a post-verdict motion. Id . at 334, 514 A.2d 1257. Although the plaintiff objected to the trial court's comparative fault instructions and special verdict form, he failed to inform the court that his objections were constitutionally based. Like the plaintiff in Weldy , the plaintiff was obligated to bring his constitutional claims to the trial court's attention before the court instructed the jury, and he may not now raise these issues on appeal. Id . at 334–35, 514 A.2d 1257.
The plaintiff argues that instead of apportioning fault under section...
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