Thurston v. 3K Kamper Ko., Inc.

• Decision Date: 10 October 1984
• Citation: 482 A.2d 837
• Parties: Gisela J. THURSTON and David L. Weaver v. 3K KAMPER KO., INC.
• Court: Maine Supreme Court

Page 837

482 A.2d 837

Gisela J. THURSTON and David L. Weaver v. 3K KAMPER KO., INC.

Supreme Judicial Court of Maine.

Argued May 11, 1984.

Decided Oct. 10, 1984.

Lowry & Platt, Donald G. Lowry (orally), Robert D. Platt, Portland, for Gisela Thurston.

Hewes, Culley, Feehan & Beals, John F. Lambert, Jr. (orally), Richard D. Hewes, Portland, for David L. Weaver.

Hunt, Thompson & Bowie, James M. Bowie (orally), M. Roberts Hunt, Rebecca H. Farnum, Glenn H. Robinson, Portland, for 3K Kamper.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN and SCOLNIK, JJ.

SCOLNIK, Justice.

3K Kamper Ko., Inc., appeals from judgments entered in the Superior Court (Cumberland County), following a jury trial, awarding $750,000 in damages to plaintiff Gisela Thurston and $50,000 in damages to plaintiff David Weaver, based upon 3K's negligence, breach of warranty, and strict liability in tort. On appeal, 3K contends (1) that the court erred in its ruling upon a motion in limine; (2) that the court erred in the procedure it adopted for submitting the issue of fault apportionment to the jury; and (3) that the court erred in refusing to reduce the amount of the damages awarded by the jury. We affirm the judgments.

On March 15, 1978, Gisela Thurston and David Weaver purchased a Cruise Master Mini Motor Home from 3K Kamper Ko., Inc., a retail dealer in Lewiston. On March 29, Thurston and Weaver were preparing to make coffee in the camper, having parked the vehicle at the Pine Crest Trailer Park in Scarborough. Thurston struck a match to light a burner on the stove, when an explosion occurred. As a result, Thurston received both second and third degree burns, and Weaver was also slightly injured.

Thurston subsequently filed a complaint in Superior Court (Cumberland County), naming Georgie Boy Manufacturing Inc., manufacturer of the camper, Vitreous Steel Products Co., manufacturer of the propane stove, and Marshall Brass Co., manufacturer of the propane gas regulator, as defendants. The complaint alleged negligence, breach of implied warranty of merchantability, breach of implied warranty of fitness, and strict liability in tort. Weaver later filed his own complaint against these defendants, alleging the same four theories of liability. Upon a motion by defendant Vitreous Steel, the cases were consolidated. Subsequently, the plaintiffs moved successfully to amend their complaints so as to join 3K Kamper as an additional defendant. Defendant Georgie Boy filed a third party complaint seeking contribution from Riverside Trailer Rentals, d/b/a Frank's Winnebago, a South Portland firm that allegedly filled the camper's propane tank on the day of the explosion.

Prior to trial, plaintiffs settled with defendants Georgie Boy, Vitreous Steel, Marshall Brass, and Riverside. Under terms of these settlements, Thurston received a total of $207,500 and Weaver a total of $13,999.99 In addition, plaintiffs executed releases (so-called "Pierringer" releases) with each defendant. ¹ Based on these releases, the four settling defendants moved for summary judgment as to the cross-claims for contribution filed against them. The court granted these motions following a hearing, and dismissed all cross-claims and third party claims filed by these defendants. ² The order also stated that

evidence may be offered on the issue of the fault of the dismissed Defendants and special interrogatories shall be submitted to the jury with instructions pursuant to Me.R.Civ.P. 49 for the purpose of determining the respective percentages of fault contributed by each of the foregoing dismissed defendants.

The motions for summary judgment were not opposed by 3K Kamper; indeed, it appears that the order granting summary judgment was prepared and submitted to the court by counsel for defendant 3K.

A seven day trial by jury then commenced between the plaintiffs and the sole remaining defendant, 3K Kamper. Pursuant to the terms of the summary judgment order, evidence relating to the liability of the settling parties was introduced along with evidence of 3K Kamper's liability. However, in response to a motion in limine and in accordance with 14 M.R.S.A. § 163, the court ordered that no reference be made to the settling defendants as parties or former parties to the litigation, or to the fact that a settlement with them had been reached. At the close of trial, special verdict forms were distributed to the jury. In response to interrogatories on the forms, the jury found 3K Kamper liable on grounds of strict liability, breach of warranty, and negligence, and found no negligence on the part of either plaintiff. Asked to apportion fault among the four released defendants and 3K Kamper, the jury found 3K to be 100% liable.

On the basis of its verdict, the jury awarded $750,000 in damages to plaintiff Thurston and $50,000 to plaintiff Weaver. Judgment for the plaintiffs was entered, but the court, intending to comply with 14 M.R.S.A. § 163, reduced the amount of the award to each plaintiff by the amount received in settlement from the released defendants. Section 163 provides that

[w]henever a person seeks recovery for a personal injury or property damage caused by 2 or more persons, the settlement with or release of one or more of the persons causing the injury shall not be a bar to a subsequent action against the other person or persons also causing the injury .... After the jury has returned its verdict, the trial judge shall inquire of the attorneys for the parties whether such a settlement or release has occurred. If such settlement or release has occurred, the trial judge shall reduce the verdict by an amount equal to the settlement with or the consideration for the release of the other persons.

14 M.R.S.A. § 163 (1980). Thurston's award was therefore reduced from $750,000 to $542,500, while Weaver's was reduced from $50,000 to $36,000.01. The plaintiffs subsequently moved to amend the judgment to restore the full amount of each award. They argued that section 163 contemplates reducing an award only when a settlement has been reached with "one or more persons causing the injury " (emphasis added), and noted that the jury had found 3K Kamper to be 100% liable. The court agreed, entering an amended judgment reinstating the full amount of each award. 3K Kamper moved for judgment n.o.v. or for a new trial, but its motion was denied.

I.

We turn first to the court's ruling upon the motion in limine. 14 M.R.S.A. § 163 states, in relevant part, that "[e]vidence of settlement with a release of one or more persons causing the injury shall not be admissible at a subsequent trial against the other person or persons also causing the injury." 14 M.R.S.A. § 163 (1980). This section has been interpreted strictly, see Emery Waterhouse Co. v. Lea, 467 A.2d 986, 995 (Me.1983), and is in accord with the long established public policy favoring settlements, see generally Note, Damage Apportionment in Maine: A Proposal for Reform, 34 Me.L.Rev. 367, 379 n. 60 (1982); cf. also Emery Waterhouse Co., 467 A.2d at 995-96 (discussing legislative purpose behind section 163). Nevertheless, 3K Kamper contends that the jury, without a complete understanding of the role of the released defendants as parties to the litigation, could not adequately have weighed the credibility of evidence as it was introduced. It also argues that the court should have informed the jury that a settlement with these defendants had been reached. ³

In dealing with this issue, we look behind the ruling on the motion in limine to the key procedural event of this case--the granting of the motions for summary judgment. Defendant's lack of opposition to the motions, and, indeed, its very participation in the drafting of the order, signal a tactical decision by which it hoped to gain through an eventual reduction in the percentage of its liability. Nevertheless, it cannot now complain that this maneuver also brought the provisions of 14 M.R.S.A. § 163 to bear. Section 163, by its terms, governs precisely the sort of litigation involved in the case at bar. In so stating, we also note that the names of the released parties were mentioned extensively during trial, and that the court instructed the jury as to theories of liability applicable only to the released defendants. 3K was free to introduce evidence relating to the liability of the released defendants, and was precluded only from mentioning the settlements or referring to the released parties as parties or former parties to the litigation. The preclusive effect of section 163 was a clearly foreseeably consequence of 3K's own tactical maneuvering. We perceive no error in the lower court's ruling upon the plaintiffs' motion in limine.

II.

We turn next to the issue of the manner in which the question of fault apportionment was submitted to the jury. The special verdict forms distributed to the jury consisted of eight questions. The first three questions involved a determination of 3K's liability according to three different liability theories. Question 4 and 5 concerned the possible contributory negligence of the plaintiff. Questions 6 and 7 involved computation of damages. Finally, question 8 stated, "[u]sing 100 percent as a total, what percentage of fault do you assign to each of the following ...." It then listed 3K Kamper Ko., Georgie Boy Manufacturing, Inc., Marshall Brass Co., Vitreous Steel Products Co., and Frank's Winnebago, in that order. 3K Kamper now suggests that the presiding justice erred in failing to define the word "fault" in his instructions to the jury, and that the special verdict form should have expressly asked the jury to weigh the liability of each settling defendant according to the same theories of liability that were applied to 3K Kamper. We disagree.

We note, at the outset, that no objection to the jury instructions was entered by the defendant at trial. According to M.R.Civ.P. 51(b), "[n]o party may assign as error the giving or...