North v. Bunday

• Decision Date: 31 March 1987
• Docket Number: No. 86-472,86-472
• Citation: 735 P.2d 270,44 St.Rep. 627,226 Mont. 247
• Parties: Kathie NORTH, as Personal Representative of the Estate of Terrance J. North, and as Guardian Ad Litem for Susan A. North, a minor, Plaintiff and Respondent, v. Gary BUNDAY, d/b/a Bunday Trucking; and the State of Montana, Defendants and Petitioners.
• Court: Montana Supreme Court

Page 270

735 P.2d 270

226 Mont. 247

Kathie NORTH, as Personal Representative of the Estate of Terrance J. North, and as Guardian Ad Litem for Susan A. North, a minor, Plaintiff and Respondent, v. Gary BUNDAY, d/b/a Bunday Trucking; and the State of Montana, Defendants and Petitioners.

No. 86-472.

Supreme Court of Montana.

Submitted Jan. 6, 1987.

Decided March 31, 1987.

Allen B. Chronister, argued, Agency Legal Services Bureau, Helena, Gregory Morgan and Robert Planalp, argued, Bozeman, for defendants and petitioners.

Monte Beck, argued, Bozeman, Terry Trieweiler, argued, Whitefish, for plaintiff and respondent.

SHEEHY, Justice.

Monte Beck, argued, Bozeman, Terry Trieweiler, argued, Whitefish, for plaintiff and respondent.

SHEEHY, Justice.

In this special proceeding originating in this Court, we are called upon to decide whether the District Court is correct in holding that, although plaintiff's percentage of causal negligence in a tort action exceeded the percentage of causal negligence assigned individually to each of two concurrent tortfeasor defendants, the plaintiff may nevertheless recover a diminished proportion of his damages from the concurrent tortfeasors because their combined percentages of causal negligence exceeded that of the plaintiff.

We hold that the District Court was correct and we adopt the rule that under our comparative negligence statutes and cases the percentage of negligence of the plaintiff is to be compared to the combined percentages of causal negligence of concurrent tortfeasors where recovery is sought against multiple defendants.

Two issues have developed in this cause:

1. What is the legal effect under § 27-1-702, MCA, of a civil jury verdict in a bifurcated trial on negligence only, apportioning 45% of the negligence to the plaintiff, 40% to the defendant Bunday Trucking and 15% to the defendant State?

2. In the event that this Court adopts the theory of combined negligence of concurrent tortfeasor defendants, should this cause be remanded to the District Court to reapportion fault under proper instructions?

The underlying case was tried in the Eighteenth Judicial District, Gallatin County. The plaintiff, Kathie North, in her representative capacities, sued Gary Bunday and the State of Montana for damages arising out of the death of Terrance J. North. On the night of August 2, 1983 Terry North was driving a pickup and a motorcycle trailer down U.S. Highway 10, east of Bozeman. Highway 10 is a frontage road with a dead end. There was no "dead end" sign or other warning placed prior to the roadway's end. Defendant Bunday Trucking had parked two unloaded semi-trailers at the end of the roadway and on the State's right-of-way. The trailers were parked directly in front of and partially blocking the only sign indicating the road's closure. North apparently saw the trailers, applied his brakes and slid his pickup under one of the trailers. He was killed in the collision. Later, readings of blood samples taken from Terry's body indicated a high blood-alcohol content.

Plaintiff is decedent's ex-wife, suing on behalf of the estate and his daughter. The plaintiff argued that Bunday was negligent in the placement of the trailers on the roadway and that the State of Montana was negligent in failing to adequately warn of the dead-end road. The defendants argued that decedent's extreme intoxication was the sole cause of the accident.

The parties agreed that the issues in the District Court would be bifurcated, the first jury to determine the percentages of negligence, if any, of the parties in causing the accident, and a later trial to determine damages, if a damages trial was necessary.

The jury returned a special verdict in which, in separate interrogatories, it answered that each of the defendants and the decedent Terry North were negligent, and that the negligence of each was a legal cause of the accident. It fixed the percentages of such negligence at 40% for defendant Gary Bunday, 15% for defendant State of Montana, and 45% for the plaintiff's decedent Terry North. The total, of course, is 100%.

Following the verdict on special interrogatories, the District Court entered an order requiring that counsel for each party prepare memoranda regarding their contentions as to the effect of the verdict, and their authorities in support. After considering the memoranda and contentions, the District Court judge entered an order on September 9, 1986 to the effect that "the court adopts the combined negligence rule of the defendants exceeding that of the plaintiff and the plaintiff is therefore entitled to damages reduced by 45% attributable to plaintiff's negligence."

Thereupon, the State of Montana made application to this Court for a writ of supervisory control directing the District Court to modify its order of September 9, 1986. The State requested that the plaintiff be barred from recovering against the State because the negligence of the decedent exceeded the negligence of the State and of each individual defendant. The State contended that no further trial was necessary as to damages. The defendant Gary Bunday joined in the State's application with permission from this Court.

I.

The statute which bears most directly on the problem is § 27-1-702, MCA, which we set forth here:

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. (Emphasis added.)

The proponents of the individual comparison rule contend that § 27-1-702 is not ambiguous, requiring comparison of the plaintiff's negligence "with the person" against whom recovery is sought. They further contend that we predicted the individual comparison rule in dictum in Cordier v. Stetson-Ross (1979), 184 Mont. 502, 604 P.2d 86. They further argue that because our comparative negligence statute was adopted from Wisconsin that the interpretation of the statute by the highest judicial authority in Wisconsin was also adopted by us.

The plaintiff, as proponent for the combined comparison rule, contends that the words "the person" in § 27-1-702 must be interpreted in accordance with § 1-2-105, MCA; that the policy of the state, and fairness, require interpretation of § 27-1-702 under the combined comparison rule; and that the majority of states considering the issue have adopted the combined comparison rule.

The District Court saw the issue as one involving nothing but fairness. In weighing the pros and cons of the interpretation of the statute, the District Court determined that the most fair result would be to adopt the combined negligence rule. It did so, although it also foresaw that sometimes inequities would result. The District Court said:

In reaching its conclusion, the court feels bound by nothing beyond the question of fairness. But even with fairness as the only criterion, one can always conjure up some obscure set of facts which will appear to treat a mythical plaintiff or defendant less fairly than others. Unfortunately, the nature of the beast is such that this will inevitably happen.

* * *

The defendants further argued that past legislative inaction demands the status quo. The Court cannot agree. It is true that the legislature has refrained from clarifying the existing language, but it may also be true that the legislators believed an amendment was unnecessary. Who knows what is in the minds of one hundred fifty (150) legislators when the result is no action?

The 1975 adoption by the legislature of the comparative negligence statute, § 27-1-702, MCA, was a legislative modification of the harsh common law rule in effect in Montana before that time that contributory negligence in the slightest degree barred a plaintiff from recovering for his injuries from any tortfeasor, joint or several. Sztaba v. Great Northern Railway Company (1966), 147 Mont. 185, 411 P.2d 379. The comparative negligence statute appears to be identical to that of Wisconsin on the same subject. Wis.Stat.Ann. § 895.045.

The petitioners contend that the language "the negligence of the person against whom recovery is sought," found in the statute, is unambiguous, and commands individual comparison. A similar argument was made in Colorado and rejected by its Supreme Court in Mountain Mobil Mix, Inc. v. Gifford (Colo.1983), 660 P.2d 883. There the Colorado Supreme Court said:

The controversy in this appeal arises from the language in the statute which purports to limit recovery if plaintiffs "negligence was not as great as the negligence of the person against whom recovery is sought." (Emphasis added.) The respondents argue that the plain language of the statute dictates that plaintiff's negligence should be compared against each defendant's negligence. In our view, the issue cannot be resolved by a mechanical and narrow reading of the statute. (Citing authority.)

In addition to the previously mentioned canons of statutory construction which the General Assembly has codified, it has directed us that the use of a singular in a statute also includes the plural. (Citing authority.) The respondents would have us ignore rules for statutory interpretation when there is no indication that the comparative negligence statute was intended to embody an individual comparison rule. If the General Assembly truly intended the phrase "the person" to exclude the plural, then it could have unambiguously provided for that result by using the phrase "each individual person." (Citing authority.) Even though the General Assembly's wording is imprecise, we do not believe that a strict parsing of the statutory language compels an individual comparison rule. (Citing authority.) We must therefore...