Reese v. Werts Corp., 85-80

• Decision Date: 18 December 1985
• Docket Number: No. 85-80,85-80
• Citation: 379 N.W.2d 1
• Parties: Cecil REESE, Appellant, v. WERTS CORPORATION, Cross-Appellant. WERTS CORPORATION, Cross-Appellant, v. BLOOMFIELD MANOR, INC., ABCM Corporation, and Dan Schwieger, Appellees.
• Court: Iowa Supreme Court

Page 1

379 N.W.2d 1

Cecil REESE, Appellant, v. WERTS CORPORATION, Cross-Appellant.

WERTS CORPORATION, Cross-Appellant, v. BLOOMFIELD MANOR, INC., ABCM Corporation, and Dan Schwieger, Appellees.

No. 85-80.

Supreme Court of Iowa.

Dec. 18, 1985.

Rehearings Denied Jan. 10, 1986.

R. Ronald Pogge of Hopkins & Huebner, P.C., Des Moines, and James W. McGrath of McGrath & McGrath, P.C., Keosauqua, for appellant.

M.H. Pothoven and Randall C. Stravers of Clements, Blomgren & Pothoven, Oskaloosa, for cross-appellant.

Bruce G. Kelley of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee Bloomfield Manor, Inc.

Richard C. Bauerle of Johnson, Bauerle, Hester & Walter, Ottumwa, for appellees ABCM Corp. and Schwieger.

Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, LARSON and SCHULTZ, JJ.

McCORMICK, Justice.

This appeal presents a problem concerning the law of joint and several liability in a negligence case filed before July 1, 1984, but tried after that date. We must decide what the legislature intended when it provided that Iowa Code section 668.4 "applies to all cases tried on or after July 1, 1984." See 1984 Iowa Acts ch. 1293, § 15. We conclude that, except for the fact negligence rather than fault is to be compared, the legislature intended the law of joint and several liability to be applied in the same way to this case as it will be applied to comparative fault cases filed after July 1, 1984. Because the trial court erred in not applying the statute in that manner in the present case, we reverse and remand on plaintiff's appeal. We dismiss the cross-appeal as moot.

Plaintiff Cecil Reese suffered serious injuries on January 29, 1981, when a freight elevator in which she was riding fell from the first floor to the basement of a nursing home where she worked. She brought this action in 1983 against defendant Werts Corporation, which had installed the elevator in 1967. Insofar as relevant here, plaintiff's claim was based wholly on Werts' alleged negligence.

Werts answered, denying material allegations of plaintiff's petition and raising defenses including plaintiff's contributory negligence. Later, on February 27, 1983, Werts cross-petitioned against third-party defendants Bloomfield Nursing Home, Inc., Bloomfield Manor, Inc., and ABCM Corporation, seeking contribution and indemnity on various theories. Bloomfield Nursing Home, Inc., which built the nursing home and subsequently sold it to Bloomfield Manor, Inc., obtained a favorable summary judgment and is not a party to the appeal. Bloomfield Manor, Inc., (hereinafter "Bloomfield") was plaintiff's employer. ABCM Corporation owned Bloomfield and furnished its employee Dan Schwieger to Bloomfield as administrator of the nursing home. Schwieger was subsequently added as a third-party defendant and for liability purposes is identified with ABCM. Thus the cross-petition essentially sought recovery against plaintiff's employer and the third-party management.

Bloomfield moved for summary judgment on the ground no basis existed for Werts' claim against it for contribution or indemnity. The trial court sustained the motion in part, holding that contribution was barred by the common liability rule but that indemnity was possible based upon an independent statutory duty running between Bloomfield and Werts.

The case was tried after July 1, 1984. During the course of trial plaintiff asked leave to amend her petition to join ABCM as a defendant. ABCM resisted on statute of limitations and timeliness grounds, and the court overruled the motion.

The case was submitted on special verdicts in which the jury was asked to decide whether and to what extent each party was causally negligent, with the liability of ABCM and Schwieger considered as one. The jury was also asked to determine plaintiff's damages. The jury found each party causally negligent and determined the percentages as follows: plaintiff, 5 percent; Werts, 15 percent; Bloomfield, 20 percent; ABCM and Schwieger, 60 percent. Plaintiff's damages were determined to be $100,000.

Plaintiff moved that the court enter judgment in her favor against Werts for $95,000. Instead the court entered judgment for plaintiff against Werts for $15,000. The court entered no judgment on the cross-petition and separately overruled plaintiff's motion for new trial. Plaintiff appealed, and Werts cross-appealed.

Reversal is sought on several grounds. One of them requires reversal and remand for new trial. We address other issues that are likely to arise on retrial.

I. Instructional error. In accordance with 1984 Iowa Acts ch. 1293, § 15, the trial court applied its understanding of Iowa Code section 668.4 in this case. That section provides:

In actions brought under this chapter, the rule of joint and several liability shall not apply to defendants who are found to bear less than fifty percent of the total fault assigned to all parties.

The trial court interpreted the provision as barring joint and several liability in the present case. This is because defendant Werts was found by the jury to bear less than fifty percent of the negligence assigned to parties as the term "party" is defined in section 668.2. We approved using the section 668.2 definition in Baldwin v. City of Waterloo, 372 N.W.2d 486, 491-93 (Iowa 1985).

Plaintiff contends that the court misled the jury in its instructions on the effect on the special verdicts. In one instruction the court said:

The law provides that if a person who has sustained damages is negligent, such negligence will not bar recovery; rather, the recovery shall be reduced in the proportion or percentage that such negligence bears to the total negligence that proximately caused the damage.

In another instruction the court said:

[I]f the plaintiff ... has established by a preponderance of the evidence that defendant Werts Corporation was negligent and said negligence was a proximate cause of plaintiff's injury or damage, then you must determine what percentage of their combined negligence is attributable to defendant Werts Corporation in accordance with the special verdict submitted with these instructions. The percentage attributed to the plaintiff will be used by the court to reduce the amount of damages which you find plaintiff has sustained....

These instructions correctly state the law as it existed under Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982), and Rosevink v. Faris, 342 N.W.2d 845 (Iowa 1983), but they do not take into account the effect of section 668.4.

Plaintiff made timely objection to the instructions on this ground, and the objection was overruled. When the ground was urged again in plaintiff's motion for new trial, the court rejected it again. The court reasoned that an instruction on the effect of its special verdicts would invite the jury to manipulate its responses to control plaintiff's recovery and would in any event not be required even if chapter 668 were applicable in its entirety. Ordinarily when special verdicts are used the jury is not told of the impact of its findings. See Poyzer v. McGraw, 360 N.W.2d 748, 753 (Iowa 1985). Of course when general verdicts are employed the jury is instructed that its verdict determines the plaintiff's right to recover.

The court's reasoning in this case overlooks the fact its instructions were not silent on the subject. The jury was told that plaintiff's recovery would be reduced by the percentage that her negligence bore to the total negligence of the parties. If this were true plaintiff's recovery would have been $95,000 instead of $15,000. Having undertaken to instruct the jury on the effect of its determinations, we believe the court was required to instruct accurately.

Moreover, we believe the court actually was required to instruct the jury of the effect of the answers to the special verdicts on plaintiff's recovery. No doubt exists of the court's obligation to do so in cases governed by chapter 668. This obligation is established in section 668.3.

Section 668.3(2) requires the court, unless otherwise agreed by the parties, to use special interrogatories to obtain findings on the claimant's damages, without regard to contributory fault, and the percentage of total causal fault allocated to each party. Thus the court under chapter 668 must use special verdicts like those employed in this case. Section 668.3(5) then provides:

If the claim is tried to a jury, the court shall give instructions and permit evidence and argument with respect to the effects of the answers to be returned to the interrogatories submitted under this section.

This provision requires the court to instruct the jury not only on the effect of the claimant's contributory fault but also on the effect of the fault of other parties. One such effect is that a defendant who bears less than fifty percent of the total fault is not jointly and severally liable.

The present case was not filed under chapter 668, but the joint and several liability rule imposed by section 668.4 is applicable to this case as if the case were filed under that chapter. Accordingly, in Baldwin we recognized that the legislature must have intended that the definition of "party" in section 668.2 apply to interpretations of section 668.4. See 372 N.W.2d at 493. Because the definition in section 668.2(3) incorporates section 668.7, that provision must apply as well. Cf. Beeler v. Van Cannon, 376 N.W.2d 628 (Iowa 1985) (reserving question of whether section 668.7 applies).

If it were not for the early applicability of the new joint and several liability provision, Werts would be subject to joint and several liability under the common law rule in Rosevink, 342 N.W.2d at 850. In enacting chapter 668, the General Assembly obviously wished to change the Rosevink rule sooner than the Goetzman rule. A provision abolishing joint and several liability altogether in cases tried or retried after July 1, 1984, was adopted before the legislative study that led to ...