Sisk v. JB Hunt Transport, Inc.

• Decision Date: 08 July 2003
• Docket Number: No. 94,288.,94,288.
• Citation: 2003 OK 69,81 P.3d 55
• Parties: Alfred William SISK, Plaintiff/Appellee, v. J.B. HUNT TRANSPORT, INC., Defendant/Appellant.
• Court: Oklahoma Supreme Court

81 P.3d 55

2003 OK 69

Alfred William SISK, Plaintiff/Appellee, v. J.B. HUNT TRANSPORT, INC., Defendant/Appellant.

No. 94,288.

Supreme Court of Oklahoma.

July 8, 2003.

Rehearing Denied November 24, 2003.

James C. Daniel, Daniel, Baker & Howard, Tulsa, OK, for Appellant, J.B. Hunt Transport, Inc.

Tim Maxcey, Stipe Law Firm, McAlester, OK, attorney for Appellee, Alfred William Sisk.¹

Rex K. Travis, Oklahoma City, for amicus curiae, Oklahoma Trial Lawyers Association.

Karen M. Grundy and Jon Starr, Tulsa, for amicus curiae, Oklahoma Association of Defense Counsel.

ORDER

Rehearing is granted. The opinion of the Court issued on February 5, 2002 is withdrawn and the opinion filed today is substituted therefor. The vote below is on the grant of rehearing only. The vote on the substituted opinion is shown thereon.

WATT, C.J., OPALA, V.C.J., LAVENDER, KAUGER, SUMMERS, BOUDREAU, JJ., concur.

HODGES, HARGRAVE, WINCHESTER, JJ., dissent.

OPALA, V.C.J.

¶ 1 Today's controversy presses for our decision but a single question: Whether a plaintiff's second dismissal of a time-barred claim against a co-defendant's servant operates, in fact and in law, to release the defendant/master by operation of the common-law rule that a servant's dismissal by the act of a plaintiff also operates to release the master's liability and to extinguish the tort claim where the claim is advanced on servant's negligence alone? We answer in the affirmative and give today's pronouncement purely prospective application—one that will apply solely to claims arising after the effective date of today's opinion.

I. THE ANATOMY OF THE LITIGATION

¶ 2 William Alfred Sisk (plaintiff or Sisk) was injured in a vehicle/pedestrian collision on 10 November 1994 when he was struck by a tractor-trailer vehicle owned by J.B. Hunt Transport (defendant, master or Hunt) and operated by the latter's employee, Aristille Courville, Jr. (defendant, servant or Courville). Sisk brought a negligence action against Courville and Hunt for damages from bodily injuries allegedly occasioned by Courville's negligence. Sisk averred no independent negligence by Hunt. Suit against the latter rests solely on the theory of respondeat superior. On 26 August 1997 Sisk dismissed his action without prejudice and then refiled it by invoking the provisions of 12 O.S.1991 § 100,² the savings statute.

¶ 3 Immediately before trial the plaintiff once again dismissed Courville "without prejudice." Because this was a second § 100 dismissal³ of Courville, Hunt asserted that the action had failed because under the doctrine of respondeat superior the master no longer bore liability. Hunt moved that the action be dismissed and judgment entered in its favor. Sisk maintained that, regardless of Courville's absence from the suit, Hunt continued to bear vicarious liability. The trial court overruled Hunt's argument and concluded Sisk's dismissal was "with prejudice" as a matter of law.⁴ The jury returned a verdict for Sisk and awarded him $800,000.00 in damages (to be reduced proportionately by its finding of 30% contributory negligence by Sisk). Hunt moved for a directed verdict, for judgment notwithstanding the verdict and for a new trial. All these motions were overruled. Hunt appealed.

¶ 4 The Court of Civil Appeals (COCA), Division II, affirmed the nisi prius denial of Hunt's motions. It noted that extant jurisprudence teaches that where master and servant are proceeded against jointly, and the master's liability rests solely on respondeat superior, a servant's dismissal without prejudice does not bar the action against the master⁵ although no decisional law could be found holding that master's release would be effected upon a servant's dismissal with prejudice. Because, as COCA noted, extant jurisprudence on principles of respondeat superior permits an action against the principal alone where no suit is brought against the agent,⁶ it reasoned that Sisk's decision (not to pursue his claim against Courville) would not bar the action against Hunt. Although COCA noted that other jurisdictions were divided about the issue of the release rule's application upon a dismissal with prejudice, it concluded Sisk's dismissal of the servant with prejudice did not release Hunt Transport from its respondeat superior liability.

II. THE PARTIES'S RESPECTIVE POSITIONS ON CERTIORARI

¶ 5 Hunt contends that, although COCA was correct in characterizing Sisk's second dismissal as one "with prejudice,"⁷ it is the legal effect of the instrument, not that of the pleader-chosen title, that controls here. The legal effect of the second dismissal—after the savings statute has earlier been invoked — prevents reinstitution of the action against Courville. This completely releases Courville and bars further legal action upon Sisk's claim against Courville. Hunt relies on Mid-Continent Pipeline v. Crauthers,⁸ and Burke v. Webb Boats, Inc.⁹ to establish that a servant's release releases the master who is proceeded against for vicarious liability's imposition. Hunt concludes Sisk's claim against it stands extinguished by operation of law.

¶ 6 Sisk asserts that COCA's characterization of his dismissal as "with prejudice" is erroneous. This is so because Sisk's dismissal expressly states it is "without prejudice," and his motion rests upon the provisions of 12 O.S.1991 § 683,¹⁰ whose text provides no limitation whatever on the number of times a plaintiff may dismiss an action without prejudice. Sisk continues that the true bar to any further action against Courville is the expiration of the statute of limitations coupled with his inability to bring, more than once, a refiled claim under § 100.¹¹ It is this procedural bar, based on policies of repose, that prohibits a third action against Courville, not the dismissal. These policies should have no bearing on his claim against Hunt, which was brought within the applicable time limits. Because his second dismissal should be denominated as one "without prejudice," Sisk contends his case is controlled by Employers Cas. Co.,¹² and we should let COCA's decision stand. Sisk urges alternatively he may continue to proceed against Hunt upon the respondeat superior principles espoused in Hooper.¹³ This is so because it is only Courville's liability that is extinguished by Sisk's second dismissal. Although Courville no longer stands liable to Sisk, his negligence may still be imputed to Hunt and the action against Hunt may hence continue.¹⁴

III.

THE COMMON-LAW RULE—THAT RELEASE OF THE SERVANT RELEASES THE VICARIOUSLY LIABLE MASTER—OPERATES HERE. PLAINTIFF'S AFFIRMATIVE ACT TRIGGERED THE PROVISIONS OF § 100 AND EXTINGUISHED HIS CLAIM AGAINST THE SERVANT.

¶ 7 The answer to the question posed by today's certiorari must rest on the common-law doctrine of respondeat superior. When a claim alleges, and presses for imposition, a master's vicarious liability (based solely on a servant's negligence)—i.e., one from which master's negligence is absent—the claim is one predicated on master's vicarious liability known to the Anglo-American legal system as respondeat superior.¹⁵ This common-law doctrine teaches that an effective release of the servant operates to release the master.¹⁶ ¶ 8 The release requirement manifests itself here in somewhat unusual circumstances. The master's release results from the plaintiff's second dismissal of the claim against the servant after limitations have run. Simply put, the dispositive question in today's controversy is whether the ex lege bar from the plaintiff's second dismissal operates by force of law as an effective release of the claim against the servant. We hold that it does.

¶ 9 The early common-law release concept included the notion that a "release" flows from the abandonment or extinguishment of a claim, and that following the release of one tortfeasor, there is no residual claim to be sued upon against another.¹⁷ Whether Sisk's second dismissal was labeled "with" or "without prejudice" is immaterial here.¹⁸ The legal consequence of plaintiff's second dismissal must be considered against the backdrop of the effect it has on the plaintiff's capacity to refile the claim. Neither the plaintiff-worded motion for the servant's dismissal nor its effect under § 100 is to be tested in a pure vacuum.

¶ 10 Plaintiff's affirmative act of dismissing (for the second time) the servant from suit at once triggered the restrictive refiling opportunity afforded by the § 100 provisions. That opportunity is undeniably gone, and recommencement of this action against Courville cannot be accomplished. It is the recommencement bar, raised by plaintiff's own act of his second dismissal, that, in fact and in law, extinguishes his claim against the servant. When viewed in the light of a two-prong analysis, the release rule's operation at once becomes crystal-clear. A plaintiff's affirmative act must occur first; its required effect—one that must follow next—must be that of reprosecution's absolute bar. To destroy a servant's liability, both elements must coincide. Today's scenario is readily distinguishable from all those in which a plaintiff takes no affirmative step or no plaintiff's act extinguishes a servant's liability.¹⁹ Sisk's own act triggered the bar to reprosecution that extinguished his claim against Courville.²⁰ A bar that arises by force of law from a plaintiff's voluntary act of dismissal is as effective as any other form of express release that would extinguish the claim against the servant.

¶ 11 That the servant is now beyond the reach of any suit upon Sisk's claim is the undeniable consequence of plaintiff's dismissal. The release rule must hence govern this controversy. Uninterrupted viability of the claim against a servant is the sine qua non of the master's continued liability in respondeat superior.²¹ Once, by an act of the plaintiff, the servant becomes impervious to legal responsibility, the master stands released.

¶ 12 Plaintiff's...