Ocasio v. Fed. Express Corp..., 2010–157.

CourtSupreme Court of New Hampshire
Citation33 A.3d 1139,162 N.H. 436
Docket NumberNo. 2010–157.,2010–157.
Decision Date22 September 2011

162 N.H. 436
33 A.3d 1139


No. 2010–157.

Supreme Court of New Hampshire.

Argued: April 13, 2011.Opinion Issued: Sept. 22, 2011.

[33 A.3d 1142]

Winer and Bennett, LLP, of Nashua (Peter G. Webb on the brief, and John V. Dwyer, Jr. orally), for the plaintiff.

Desmarais, Ewing & Johnston, PLLC, of Manchester (David Johnston and Heather G. Silverstein on the brief, and Mr. Johnston orally), for the defendant.


[162 N.H. 439] In this personal injury case, the plaintiff, Alfred Ocasio, appeals the entry of judgment in favor of the defendant, Federal Express Corporation (FedEx). He argues that the Trial Court ( Barry, J.) erred when it allowed the jury to apportion fault to his employer, the United States Postal Service (USPS), and when, despite the jury's $1,445,700 verdict in his favor, it entered judgment for FedEx after comparing the fault allocated to him to the fault allocated to FedEx. See RSA 507:7–d, :7–e (2010). We hold that while it was not error to allow the jury to apportion fault to the USPS, it was error to deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse in part, and remand.

I. BackgroundA. The Accident

The jury could have found the following facts. The plaintiff was a mail handler for the USPS. His job included pulling, by hand, large canisters filled with mail (air cans) from delivery tractor-trailer trucks. Ball bearings were affixed to the floor of the truck beds, as well as the floor of the loading dock, allowing the USPS employees to roll the air cans from the trucks onto the loading dock and into the USPS facility. The air cans typically weigh between 3,000 and 5,000 pounds.

On February 17, 2002, the plaintiff was pulling air cans from a FedEx tractor-trailer truck when he accidentally stepped into and caught his leg in a gap between the rear of the truck and the loading dock. When the air can he had been pulling continued to roll toward him, the bones of his trapped leg were shattered. Although the plaintiff's leg was saved after reconstructive[162 N.H. 440] surgery, it is of limited use. He cannot stand or walk for very long and he cannot lift and carry heavy things. He has since lost his job at the USPS.

B. Recovery Against USPS

Due to his work-related accident, the plaintiff received benefits totaling approximately $80,353 under the Federal Employees' Compensation Act (the Federal Act). See 5 U.S.C.A. §§ 8101 et seq. (2007). Pursuant to the Federal Act, these benefits are the plaintiff's exclusive remedy against the USPS. See

[33 A.3d 1143]

5 U.S.C.A. § 8116(c). Moreover, the Federal Act requires the plaintiff to refund to the United States any money he receives as a result of a suit or settlement from a third party, less costs of the suit and a reasonable attorney's fee, see 5 U.S.C.A. § 8132; see also 20 C.F.R. § 10.711 (2010), or to “assign to the United States any right of action he may have to enforce the liability or any right he may have to share in money or other property received in satisfaction of that liability,” 5 U.S.C.A. § 8131(a)(1).

C. Lawsuit Against FedEx

The plaintiff sued FedEx for damages, alleging, among other claims, that FedEx's negligence caused his injuries. Consistent with the Federal Act, the plaintiff did not name as a defendant the USPS, his immune employer. Before trial, the plaintiff moved in limine to preclude the jury from apportioning fault for his injuries to the USPS, arguing that if the jury were to do so, he “would essentially be punished for receiving benefits from his negligent employer.” He explained: “Since any recovery [he] ... might receive is already bound to be diminished by a worker's compensation lien, ... it is unfair to additionally reduce that recovery by imputing separate, independent liability upon his employer.” The trial court denied the motion, and gave the jury a special verdict form requiring it to consider whether the USPS was legally at fault to any degree.

The jury found the plaintiff's damages to be $1,445,700, and found that the plaintiff was six percent at fault, FedEx was four percent at fault, and the USPS was ninety percent at fault. Thereafter, FedEx moved for entry of judgment in its favor, arguing that pursuant to RSA 507:7–d, because the plaintiff's percentage of fault (6%) was greater than FedEx's percentage of fault (4%), the plaintiff was not entitled to recover any damages against FedEx. See RSA 507:7–d, :7–e, I(b). The trial court agreed, and this appeal followed.

II. Discussion

On appeal, the plaintiff argues that the trial court erred in two respects: first, when it allowed the jury to apportion fault to the USPS, see [162 N.H. 441] RSA 507:7–e, I(a), even though the USPS was not named as a defendant in the lawsuit and was immune from liability pursuant to the Federal Act, see 5 U.S.C.A. § 8116(c); and, second, when it ruled that recovery against FedEx was barred because his degree of fault was found to be greater than FedEx's, see RSA 507:7–d, :7–e, I(b).

A. Apportionment of Fault
1. DeBenedetto

RSA 507:7–e governs apportionment of fault to both claimants and tortfeasors. It is part of a comprehensive statutory framework for apportionment of liability and contribution. DeBenedetto v. CLD Consulting Eng'rs, 153 N.H. 793, 798, 903 A.2d 969 (2006). It provides, in pertinent parts:

I. In all actions, the court shall:

(a) Instruct the jury to determine, or if there is no jury shall find, the amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties; and

(b) Enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him.

RSA 507:7–e, I(a), (b).

In DeBenedetto, we ruled that RSA 507:7–e permits a jury to apportion fault to

[33 A.3d 1144]

an immune non-party, such as the USPS. DeBenedetto, 153 N.H. at 804, 903 A.2d 969. At issue in DeBenedetto was whether the trial court erred when it instructed the jury to apportion fault to two non-parties. Id. at 797, 903 A.2d 969. One nonparty, Doris Christous, was the driver of the car that collided with the plaintiff's husband's car. Id. at 795, 903 A.2d 969. Christous's insurance carrier paid damages upon demand and Christous was not named as a defendant in the plaintiff's subsequent lawsuit. Id. The other non-party was the New Hampshire Department of Transportation (DOT), which was a named defendant, but was dismissed before trial on grounds of immunity. Id.

The DeBenedetto plaintiff argued that the trial court's instruction to the jury to include Christous and the DOT when apportioning fault violated the plain language of RSA 507:7–e, I(a). Id. at 797, 903 A.2d 969. The plaintiff asserted that the words “party” or “parties,” as used in RSA 507:7–e, I, referred only to [162 N.H. 442] the parties actually involved in the case. DeBenedetto, 153 N.H. at 800, 903 A.2d 969. We disagreed, and construed the terms to refer to all entities contributing to the plaintiff's loss, including unnamed and immune non-parties. Id. at 798, 803, 903 A.2d 969.

The plaintiff in this case argues that our holding in DeBenedetto should not apply to the USPS even though it, like the DOT in DeBenedetto, is an immune non-party who contributed to the plaintiff's loss. In addressing his arguments, we begin by reviewing the legislative history of RSA 507:7–e, as related in our prior cases, as well as our case law interpreting the statute.

2. Legislative History of RSA 507:7–e and Prior Case Law

RSA 507:7–e was enacted in 1986 as part of the legislature's “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). “The ‘Act Relative to Tort Reform and Insurance,’ Laws 1986, 227:2, closely modeled the Uniform Comparative Fault Act, 12 U.L.A. 38–49 (Supp.1987), in its treatment of comparative fault and apportionment of damages.” DeBenedetto, 153 N.H. at 798, 903 A.2d 969. As originally enacted in 1986, RSA 507:7–e required that judgment be entered against “each party liable” on the basis of joint and several liability. Id.; see Laws 1986, 227:2. Under the rule of joint and several liability, a defendant who is only minimally responsible for a plaintiff's injuries may be held responsible for the entire amount of recoverable damages. DeBenedetto, 153 N.H. at 798, 903 A.2d 969.

The joint and several liability rule enabled “injured plaintiffs to seek out and sue only ‘deep pocket’ defendants—tortfeasors with significant assets but a potentially low degree of fault who by virtue of joint and several liability may be responsible for the entire amount of recoverable damages.” Id. at 798–99, 903 A.2d 969. As a result, numerous jurisdictions enacted legislation to ameliorate the inequities suffered by low fault, “deep pocket” defendants. Id. at 799, 903 A.2d 969.

New Hampshire followed this trend in 1989 when it amended RSA 507:7–e “to treat fairly those entities which may be unfairly treated” under joint and several liability. Id. (quotation omitted); see N.H.S. Jour. 286 (1989). Recognizing that “manufacturers, professional and public agencies ... become targets for damage recoveries because of their potential monetary resources rather than their fault,” N.H.S. Jour. 286 (1989), the legislature amended RSA 507:7–e to impose only several liability on parties who are less than fifty percent at fault. See RSA 507:7–e, I(b).

[33 A.3d 1145]

Following this amendment, we had occasion to consider whether RSA 507:7–e permits a jury to apportion fault between a settling tortfeasor and a non-settling tortfeasor. See Nilsson v. Bierman, 150 N.H. 393, 395, 839 A.2d 25 (2003). In Nilsson, the plaintiff argued that...

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