Stueve v. American Honda Motors Co., Inc., 77-4170.

• Decision Date: 15 September 1978
• Docket Number: No. 77-4170.,77-4170.
• Citation: 457 F. Supp. 740
• Parties: Doris STUEVE et al., Plaintiffs, v. AMERICAN HONDA MOTORS COMPANY, INC., and Honda Motor Company, L. T. D. of Japan, Defendants.
• Court: U.S. District Court — District of Kansas

457 F. Supp. 740

Doris STUEVE et al., Plaintiffs, v. AMERICAN HONDA MOTORS COMPANY, INC., and Honda Motor Company, L. T. D. of Japan, Defendants.

No. 77-4170.

United States District Court, D. Kansas.

September 15, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jerry R. Palmer, Topeka, Kan., James L. Grimes, Jr., Topeka, Kan., for plaintiffs.

Donald Patterson, Topeka, Kan., for American Honda Motors Co.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a products liability action which comes before the Court upon various motions filed by defendants. Oral argument has been heard and the parties have submitted extensive briefs. The Court is prepared to rule.

Defendants American Honda and Honda Motor Company are the distributor and manufacturer, respectively, of Honda motorcycles sold in this country. Plaintiff Doris Stueve is the wife and administratrix of the estate of Frederick Duane Stueve, and brings this action for wrongful death and survivorship on behalf of herself, her children, and the estate of Frederick Stueve. The complaint in this case, filed August 24, 1977, alleges that on August 31, 1975, Frederick Stueve was riding a 1972 Honda motorcycle which collided with an automobile at an intersection in Topeka, Kansas. As a result of the impact, the motorcycle caught fire. On September 22, 1975, Frederick Stueve died as a result of the burns suffered in the collision. Plaintiff alleges that a cause of the fire was a defectively-designed gasoline tank and tank lid on the motorcycle which permitted the escape of fuel upon collision.

However, it appears that the cause of the collision itself was the negligence of one Joseph Witherspoon, the driver of the car which collided with the motorcycle. On April 22, 1976, a wrongful death action was brought by plaintiff in state court against Witherspoon. An answer was filed the same day and a hearing held, a transcript of which has been made available to the Court. It reflects that a settlement had been reached with respect to both the wrongful death claim and a survivorship claim (which had not been filed at that time, apparently due to a delay in the appointment of plaintiff as administratrix of the estate). Witherspoon was to pay $40,000 on the wrongful death claim and $10,000 in satisfaction of the potential survivorship claim, or in the aggregate $50,000, this being the limit of his insurance coverage. Plaintiff stated she understood that Witherspoon was a minor with no known assets, and thus was in essence judgment-proof beyond the limits of policy coverage. On May 12, 1976, the Probate Court authorized the settlement of the survivorship claim for $10,000, and in return plaintiff as administratrix executed a covenant not to sue Witherspoon on the claim. A journal entry reflecting the $40,000 wrongful death settlement and its distribution was filed May 14, 1976. Copies of all these documents appear in the file of the present case.

A. Motion for Summary Judgment

The settlement with Witherspoon was the basis of a "Motion to Limit Recovery" filed by defendants, in which they argued that a 1975 amendment to the Kansas wrongful death act, Chapter 303, L.1975, which removed the $50,000 limit on recovery for wrongful death, is unconstitutional. This motion was heard by Senior Judge Templar of this district, and on March 29 of this year, he held the amendment constitutional. Stueve v. American Honda Motors Co., Inc., 448 F.Supp. 167 (D.Kan.1978). Thus plaintiff is not to be limited to a $10,000 claim for wrongful death (the difference between the former $50,000 limit and the $40,000 settlement), but may recover for pecuniary loss in an unlimited amount. K.S.A. § 60-1903.

However, the settlement with Witherspoon has also engendered a motion for partial summary judgment now before the Court. Defendants argue that plaintiff's wrongful death claim cannot be "split," and hence that the judgment taken against Witherspoon for wrongful death precludes a second such action arising from the same collision, since rights against defendants were not reserved in the entry of judgment against Witherspoon in the wrongful death action. Such rights were reserved in the covenant not to sue executed in connection with settlement of the survivorship claim against Witherspoon. While defendants' motion raises a sufficiently complex question on this issue alone, the matter is complicated by the fact plaintiff's present counsel has secured an amended journal entry from the state court which purports to set aside the May 14 journal entry in its entirety and specifically reserves rights against defendants. Defendants also attack this attempted "cure" as void because it can have no retroactive effect under K.S.A. § 60-260, the Kansas equivalent of Rule 60, Federal Rules of Civil Procedure.

We first consider the question of bar or merger. Defendants rely upon the rule of Restatement, Judgments § 95 that the discharge of a judgment against one of several joint tortfeasors discharges all others who might have been liable. Plaintiff cites in opposition the Tentative Draft of this section prepared for the Second Restatement of Judgments, which states that such a discharge does not bar a later action against a "co-obligor" except in certain narrow circumstances not here relevant. Since the effect of the judgment against Witherspoon must be determined by state law, we will proceed to examine the Kansas cases cited by the parties in support of their respective positions.

Defendant cites Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138, 531 P.2d 435 (1975), Anderson v. Anderson, 155 Kan. 69, 123 P.2d 315 (1942), and Jeffries v. Mercantile & Elevator Co., 103 Kan. 786, 176 P. 631 (1918), for the proposition that a judgment taken in an action precludes later relitigation of the claim. However, all three cases involved a later attempt at relitigation of a claim against the same defendant against whom plaintiff had taken judgment in the original action, and hence are inapposite here. Were plaintiff to attempt to relitigate her claim against Witherspoon, we have no doubt she would be precluded by the doctrine of merger and res judicata.

More appropriate is defendants' citation of Jacobson v. Parrill, 186 Kan. 467, 351 P.2d 194 (1960), Rasnic v. City of Wichita, 126 Kan. 98, 267 P. 21 (1928), and Skaer v. Davidson, 123 Kan. 420, 256 P. 155 (1927). These are cases in which a defendant was sued upon a cause of action which had been the subject of a prior suit against another tortfeasor, and the second suit was held barred by the first. However, we agree with plaintiff that Jacobson and Rasnic must be distinguished from the case at bar. In those cases it was held that a settlement with one party precludes a later action against another who is merely liable under the theory of respondeat superior. In such a case only a single wrongful act is alleged, and there would be circuity of action were suit allowed against the master or principal, for he would have a right of indemnity against the settling defendant who had already been released. Jacobson, supra, 186 Kan. at 473, 351 P.2d 194. The same result must obtain in a suretyship situation, or where the settling party has agreed to hold harmless the party sued in the second action. Rasnic, supra, 126 Kan. at 101, 267 P. 21. See also, Sade v. Hemstrom, 205 Kan. 514, 471 P.2d 340 (1970), and Restatement of Judgments, §§ 96-99. No such special relationship obtains between Witherspoon and the present defendants.

Defendants' position is more closely analogous to the Skaer case. In Skaer, plaintiff sued two of several tortfeasors, alleging in essence a business conspiracy, and settled and released them without reserving any rights against the others. In a subsequent suit against the remaining tortfeasors, the court held that the unconditional release of the original parties and satisfaction of the judgment entered pursuant to the release barred the subsequent suit. We note that the court was principally concerned with the effect and operation of the release; we have found no Kansas case which directly supports defendants' proposition that Kansas follows the common-law doctrine of merger to the extent that a judgment for the plaintiff against one party prevents relitigation of the same claim against another party, no matter what the nature of the wrong attributable to the other party. See 46 Am.Jur.2d Judgments § 389. Indeed, the rule is clearly the opposite when the tortfeasors have committed independent acts for which either could be independently liable. Froelich v. Werbin, 212 Kan. 119, 509 P.2d 1118 (1973).

However, "release" cases such as Skaer are appropriate subjects of focus in this case, notwithstanding defendants' insistence that we view the action against Witherspoon merely as a satisfied judgment. It is evident that the journal entry of May 14 is the (attorney-drafted) product of a negotiated settlement, formalized principally because of the necessity for supervised distribution to minor heirs of the deceased. It reads, in pertinent part, that plaintiff should recover from defendant

the sum of $40,000 and costs for full, complete and final payment of any claim, demand, or cause of action which plaintiff has against defendant for the wrongful death of F. Duane Stueve . . .

No mention of other possible wrongdoers is made in the document, and hence no reservation of rights made. However, at the hearing to confirm the settlement, it became apparent that a reservation was to be made with respect to the City of Topeka if settlement for the pre-death (survivorship) claim against Witherspoon was approved by the probate court. No mention of the present defendants, or indeed of anyone else contingently liable on the wrongful death claim, was made at the hearing.

The original common-law rule with respect to settlements with less than all possible responsible parties was that the release of one joint tortfeasor releases all, even...