Watters v. Pelican Intern., Inc., Civ. A. No. 88-F-1305.

• Court: United States District Courts. 10th Circuit. United States District Court of Colorado
• Writing for the Court: Deana R. Willingham, Madden and Strate P.C., Wheat Ridge, Colo., for plaintiff Les Bretzke
• Citation: 706 F. Supp. 1452
• Docket Number: Civ. A. No. 88-F-1305.
• Decision Date: 17 February 1989
• Parties: M.R. WATTERS and Les Bretzke, Plaintiffs, v. PELICAN INTERNATIONAL, INC. f/d/b/a Eskay Plastics Ltd., a Canadian Corporation, Defendant.

706 F. Supp. 1452

M.R. WATTERS and Les Bretzke, Plaintiffs,
v.
PELICAN INTERNATIONAL, INC. f/d/b/a Eskay Plastics Ltd., a Canadian Corporation, Defendant.

Civ. A. No. 88-F-1305.

United States District Court, D. Colorado.

February 17, 1989.

706 F. Supp. 1453

COPYRIGHT MATERIAL OMITTED

706 F. Supp. 1454

Miles C. Cortez, Jr., Christopher T. Macaulay, Cortez and Friedman P.C., Denver, Colo., for plaintiff M.R. Watters

Deana R. Willingham, Madden and Strate P.C., Wheat Ridge, Colo., for plaintiff Les Bretzke.

Scott S. Barker, Michael S. Beaver, Fred Galves, Holland and Hart, Englewood, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Chief Judge.

This matter comes before the court on defendant's motion to dismiss plaintiff's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs seek recovery in contribution for a judgment entered against them in prior litigation in this court. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332. Defendant Pelican International Inc. ("Pelican") contends that plaintiffs cannot state a claim upon which relief could be granted because Colorado's Proportionate Fault Statute prevents proof of a necessary element of a contribution claim by abolishing the common law doctrine of joint and several liability. See Colo.Rev. Stat. § 13-21-111.5. The issue before the court is whether, as a matter of law, the Proportionate Fault Statute prevents parties from stating a claim for contribution when they have failed to formally designate a non-party at fault in the underlying action. For the reasons stated below, the court finds that it does not create a bar to contribution claims. Defendants motion to dismiss is DENIED.

I.

Plaintiffs Watters and Bretzke were defendants in Diane Geringer v. Wildhorn Ranch, Inc., et al., Civil Action No. 87-F-1213 (D.Colo. Nov. 14, 1988). In that matter, the jury found Watters and Bretzke liable in tort for compensatory and punitive damages arising from personal injuries suffered by Diane Geringer and her daughter and from the deaths of her husband and son. The accident occurred while the Geringer family was riding a paddleboat provided at a guest ranch operated by Watters and Bretzke. The boat sank. Watters and Bretzke allege that Pelican is also liable for those injuries as manufacturer of the paddleboat.

The parties agree that plaintiff's complaint alleges that defendants are liable in contribution pursuant to the Colorado Contribution Among Joint Tortfeasors Statute for an amount commensurate with the proportion of fault attributable to the manufacturer of the boat. See Colo.Rev.Stat. § 13-50.5-102. Pelican contends that the Colorado Proportionate Fault Statute provides for resolution of relative fault in one action and that alleged joint tortfeasors not joined or designated in that action are not liable for contribution claims in a subsequent action. The court finds that since the Proportionate Fault Statute does not abolish the concept of common liability, a party held liable for damages in prior tort litigation is not precluded from bringing an action for contribution against joint tortfeasors not joined or designated in the prior action.

706 F. Supp. 1455

II.

Under the Contribution Statute, a tortfeasor who has paid more than his pro rata share of the common liability may recover contributions from other tortfeasors for the amount paid in excess of that share. Colo.Rev.Stat. § 13-50.5-102(2); see also Brochner v. Western Ins. Co., 724 P.2d 1293, 1298 (Colo.1986); Kussman v. City and County of Denver, 706 P.2d 776, 780 (Colo.1985). The Contribution Statute provides "where two or more persons become jointly or severally liable in tort for the same injury ... there is a right of contribution among them even though judgment has not been recovered against all or any of them." Colo. Rev.Stat. § 13-50.5-102(1).

Pelican contends that it is not "jointly and severally liable," and therefore, not liable under the Contribution Statute, because of the operation of Colorado's Proportionate Fault Statute. The statute, enacted in 1986 as part of Colorado's tort reform, provides that no defendant shall be liable for an amount greater than the amount represented by the percentage of fault attributable to him. Colo.Rev.Stat. § 13-21-111.5(1). The statute calls for the jury to apportion fault among all plaintiffs and defendants as well as non-parties designated by defendants as being a cause of the injuries of which plaintiffs complain. A defendant is liable only for that percentage of plaintiffs' damages which equals that portion of fault attributable to him. See Colo.Rev.Stat. § 13-21-111.5. A defendant may designate non-parties as of right for ninety (90) days after a suit has been filed, but must seek leave of the court to designate out of time. Colo.Rev.Stat. § 13-21-111.5(3)(b). This mechanism has been interpreted as "abolishing" the common law doctrine joint and several liability. Brochner, 724 P.2d at 1299 (Colo.1986); Williams v. White Mountain Const. Co., 749 P.2d 423, 429 (Colo.1988); Laugesen, Tort Reform 1986-88, p. 2 (Colo.Judicial Conf.1988); Laugesen, Colorado's Relative Fault System, pp. 9-12 (Colo.Judicial Conf. 1988); Benson, New Role for Non-parties in Tort Actions — The Empty Chair, 15 Colo.Lawyer 1650, 1650 (1986).

III.

In Geringer, these plaintiffs attempted to designate Pelican as a non-party nine months after suit was filed. Leave was denied because they had failed to show that extension of the designation period was necessary to that litigation. Pelican contends this failure creates a legal bar to any subsequent action for contribution. Pelican contends (1) joint and several liability is a prerequisite to a claim for contribution, (2) joint and several liability has been abolished in Colorado, and therefore (3) a party not designated or joined in the primary litigation can not be held liable as a joint tortfeasor in subsequent litigation. Each of these propositions misinterprets the case law and statutes at issue.

First, case law and the Contribution Statute do not require that tortfeasors must be found jointly and severally liable before they enjoy a right of contribution. The right to...