Swett v. Haig's, Inc.

• Decision Date: 02 June 1995
• Docket Number: No. 94-049,94-049
• Court: Vermont Supreme Court
• Parties: Tanya SWETT v. HAIG'S, INC., Defendant and Third-party Plaintiff v. Eric JENSEN, Third-party Defendant.

Page 930

663 A.2d 930

164 Vt. 1

Tanya SWETT v. HAIG'S, INC., Defendant and Third-party Plaintiff v. Eric JENSEN, Third-party Defendant.

No. 94-049.

Supreme Court of Vermont.

June 2, 1995.

Motion for Reargument Denied July 5, 1995.

J. Norman O'Connor and William W. Adams of Donovan & O'Connor, Adams, MA, for third-party plaintiff-appellant.

Shannon A. Bertrand of Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for third-party defendant-appellee.

Bret P. Powell and Christopher O'Brien of Wilson Powell Lang & Faris, Burlington, for amicus curiae Friends of Fairness in Vermont Dram Shop Law.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ST. HELAIRE, District Judge, Specially Assigned.

DOOLEY, Justice.

The principal issue in this case is whether the Dram Shop Act permits contribution from an intoxicated driver for damages a dram shop may be required to pay a motorist injured in an accident with the intoxicated driver. The trial court held that contribution was not available. We conclude that the Act authorizes contribution, and therefore, we reverse.

Haig's, Inc., a dram shop, was sued by plaintiff Tanya Swett, a motorist who was seriously injured in an accident caused by Eric Jensen while he was operating his vehicle in Jamaica, Vermont. Plaintiff alleged that Jensen was intoxicated and that Haig's, Inc. served him liquor despite his intoxicated state. She further alleged that as a direct consequence of Haig's acts, the accident and her injuries occurred. Haig's filed a third-party complaint against Jensen, seeking contribution to any damages paid plaintiff pursuant to § 501(f) of the Dram Shop Act, 7 V.S.A. §§ 501-507, which permits contribution from "any other responsible person." Jensen sought to dismiss the complaint, arguing that he was not a responsible party under the Act and, therefore, could not be held liable indirectly under its contribution provision.

In holding that contribution was unavailable, the trial court determined that an intoxicated driver is not a responsible person under the Dram Shop Act, and reasoned that "the plain meaning of 7 V.S.A. § 501(f) allows defendant dram shops to have a right of contribution from other sellers of alcoholic beverages, but not against those to which the statute's creation of liability does not apply, such as the driver." The third-party complaint was dismissed, and Haig's appealed.

Some background is necessary to put the question before us in context. Much of the law in this area has been shaped by the all-too-common circumstance of a driver, who is served alcoholic beverages by a dram shop after becoming visibly intoxicated, and who then becomes involved in an automobile accident, usually injuring another motorist. At common law, the dram shop was not liable to the injured motorist on the theory that the intoxicated driver's action was the sole proximate cause of the accident. See Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 215, 542 A.2d 269, 270 (1988). The dram shop was not liable even where the plaintiff showed that it was negligent by continuing to serve the driver and that the accident was caused by the driver's impairment. Id. Before the reevaluation of this limited view of causation, the Vermont Legislature enacted the Dram Shop Act, which imposes strict liability for injuries to third parties on dram shops that serve persons "apparently under the influence of intoxicating liquor." 7 V.S.A. § 501(a)(2) ¹; see Clymer v. Webster, 156 Vt. 614, 619-20, 596 A.2d 905, 908-09 (1991). The Dram Shop Act preempts common-law negligence actions that come within its scope. See Estate of Kelley v. Moguls, Inc., 160 Vt. 531, 532, 632 A.2d 360, 361 (1993); Ransom & Hastings, Inc., 149 Vt. at 216, 542 A.2d at 270.

Because the Act's preemptive effect is limited, an accident as described above can give rise to common-law negligence liability as well as liability against the dram shop under the Act. See Plante v. Johnson, 152 Vt. 270, 274, 565 A.2d 1346, 1348 (1989). Thus, the injured motorist may bring a common-law negligence action against the intoxicated driver. Id. The Legislature recognized the intoxicated driver's liability and provided that the claim against the dram shop could be joined with the claim against the intoxicated driver. See 7 V.S.A. § 501(b). We have also held that the intoxicated driver can sue the dram shop for the driver's damages on a common-law negligence theory. See Estate of Kelley, 160 Vt. at 536, 632 A.2d at 363.

The cross-claim between the dram shop and the intoxicated driver arises from a subsection of the Dram Shop Act, which was added in 1987, and provides:

(f) Right of contribution. A defendant in an action brought under this section has a right of contribution from any other responsible person or persons, which may be enforced in a separate action brought for that purpose.

7 V.S.A. § 501(f). Apart from any statute to the contrary, we have consistently held that there is no right of contribution between joint tortfeasors. See Peters v. Mindell, 159 Vt. 424, 427, 620 A.2d 1268, 1270 (1992); Howard v. Spafford, 132 Vt. 434, 435, 321 A.2d 74, 75 (1974) (adoption of comparative negligence did not abrogate no contribution rule). The parties here are joint tortfeasors; there is no question that contribution is unavailable under the common-law rule. The narrow question before us is whether § 501(f) has created a right of contribution.

The parties agree that the question must be resolved under principles of statutory construction. In construing a statute, our primary objective is to effectuate the intent of the Legislature. See Bisson v. Ward, 160 Vt. 343, 348, 628 A.2d 1256, 1260 (1993). Initially, we presume the Legislature intended the plain, ordinary meaning of the statute. Id. Where the meaning is clear and unambiguous, we construe and enforce the statute according to its express meaning. See Langle v. Kurkul, 146 Vt. 513, 515, 510 A.2d 1301, 1302-03 (1986). Words of doubtful meaning do not change common law rules; the intent to do so must be expressed in clear and unambiguous language. See Estate of Kelley, 160 Vt. at 533, 632 A.2d at 362.

We conclude that the wording of § 501(f) is clear and unambiguous, in the context of the whole statute, and it authorizes contribution in this case. The intoxicated driver is a person "responsible" for the injuries to the other motorist although the common law creates that responsibility rather than the Dram Shop Act. There is nothing in § 501(f), or the Act as a whole, to suggest that the Legislature used the word "responsible" in other than its ordinary and plain meaning. Indeed, the Legislature used the phrase "defendant in an action brought under this section" in subsection (f), showing that it knew how to limit its action to Dram Shop Act defendants when that was clear. It did not express such an intent in defining the responsible person from whom contribution could be sought; we conclude this omission was intentional. Finally, we think it is instructive that in two places the Act acknowledges the existence of common-law responsibility in circumstances not directly covered by the Act. See 7 V.S.A. §§ 501(b) (injured party may bring joint action against dram shop and person intoxicated), 501(g) (social host liability still governed by common law). Thus, the Legislature was clearly aware that responsibility could arise from the common law as well as from the Act.

Although in dicta, we have examined the statute once before and reached the same conclusion. In Clymer v. Webster, we cited the statute as permitting contribution between a dram shop and an intoxicated driver despite the lack of a common theory of liability between those defendants. 156 Vt. at 621 n. 3, 596 A.2d at 909 n. 3. On reexamination, we reaffirm its conclusion.

We have reached the above conclusion without relying on the legislative history cited by Haig's and Friends of Fairness in Vermont Dram Shop Law, which submitted an amicus curiae brief in support of reversal. As is often the case in this state, we find the legislative history sparse and ambiguous. ² See State v. Madison, 163 Vt. 360, ----, 658 A.2d 536, 544-45 (1995) (per curiam) (legislative history consisting of witness comments and post-hoc committee reaction insufficient to overcome judicial consensus regarding meaning of term "review de novo" in constitutional amendment); In re Killington, Ltd., 159 Vt. 206, 216, 616 A.2d 241, 247 (1992) (legislative history inconclusive and therefore insufficient to justify departure from stare decisis). We do find support in the fact that each of the bills that led to the 1987 amendment to the Dram Shop Act had as one of its two main purposes to "limit liability under the 'dram shop' law." Statement of Purpose, S. 5, Vt.Bien.Sess. (1987); Statement of Purpose, S. 14, Vt.Bien Sess. (1987); Statement of Purpose, H. 57, Vt.Bien.Sess. (1987). Our decision limits the eventual liability of a dram shop by allowing it to obtain contribution from the intoxicated driver. The opposite interpretation would not.

We are also not persuaded by Jensen's public policy arguments. ³ Essentially, Jensen restates the arguments against contribution generally, as set forth in Howard v. Spafford, and expresses concern that the injured motorist, Tanya Swett, may not recover all her damages, depending on how we apply the comparative negligence statute to Dram Shop Act cases. The main thrust of the Howard opinion is that any change to the no-contribution rule should come from the Legislature and not from this Court. See Howard, 132 Vt. at 438, 321 A.2d at 77. Section 501(f) undeniably provides for contribution in some circumstances; Jensen's arguments against contribution have been rejected for the circumstances covered by the statute.

We recognize there are complexities introduced by contribution between tortfeasors whose liability is based on different theories. As we noted in Clymer, other states have worked out...