Zeller v. Cantu

• Decision Date: 05 June 1985
• Citation: 395 Mass. 76,478 N.E.2d 930
• Parties: , Prod.Liab.Rep. (CCH) P 10,604 Donna L. ZELLER v. Robert C. CANTU, et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 930

478 N.E.2d 930

395 Mass. 76, Prod.Liab.Rep. (CCH) P 10,604

Donna L. ZELLER v. Robert C. CANTU, et al. ¹

Supreme Judicial Court of Massachusetts,

Worcester.

Argued March 4, 1985.

Decided June 5, 1985.

Mark A. Michelson, Boston, for Robert C. Cantu.

James F. Kavanaugh, Jr., Boston (Christopher A. Duggan with him) for American Safety Razor Corp.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

In this case we are asked to decide whether contribution among joint tortfeasors is to be apportioned on a pro rata basis, pursuant to G.L. c. 231B, § 2 (1984 ed.), or whether codefendants' liability should be apportioned on the basis of their relative degrees of fault. Dr. Robert C. Cantu is appealing an order of the Superior Court directing him to pay to the American Safety Razor Corporation (ASRC) a pro rata contribution of fifty per cent of the judgment entered for the plaintiff, Donna L. Zeller. He argues that his share of the damages awarded to Zeller should be based upon his degree of fault in causing her injury. We disagree.

Both Cantu, the operating surgeon, and ASRC, the manufacturer of the blades used, were defendants in an action brought by Zeller for injuries she suffered when surgical blades broke and became permanently lodged in her back during the course of surgery. The judgment for Zeller, which was affirmed by the Appeals Court, was in the amount of $1,287,466. ² Zeller v. American Safety Razor Corp., 15 Mass.App.Ct. 919, 443 N.E.2d 1349 (1983). After final judgment entered and execution issued, Cantu paid $100,000 (the limits of his primary insurance policy) and ASRC paid the balance. ASRC then moved for enforcement of contribution against Cantu, pursuant to G.L. c. 231B, § 3 (b) (1984 ed.), which was allowed. Judgment against Cantu, in the amount of $548,516.05 ³ was entered on November 15, 1983. Cantu appeals from this judgment.

Cantu claims that the judge erred in failing to determine his contribution on the basis of his share of responsibility for the plaintiff's injuries. He contends that: (1) the enactment of the Commonwealth's comparative negligence act, G.L. c. 231, § 85 (1984 ed.), modified G.L. c. 231B so as to require consideration of comparative fault in assessing contribution among joint tortfeasors; (2) by making "principles of equity applicable to contribution," G.L. c. 231B, § 2 (c) (1984 ed.), sanctions an apportionment of damages by comparative fault; and (3) to the extent G.L. c. 231B requires pro rata contribution without consideration of relative fault, it violates the due process and equal protection provisions of the Massachusetts and United States Constitutions.

1. Implied Repeal.

Under the common law, there was no right to contribution among joint tortfeasors. George W. Gale Lumber Co. v. Bush, 227 Mass. 203, 205, 116 N.E. 480 (1917). In 1962, the Legislature enacted, by St.1962, c. 730, § 1, the Uniform Contribution Among Tortfeasors Act which states in relevant part: "In determining the pro rata shares of tortfeasors in the entire liability (a) their relative degrees of fault shall not be considered; (b) if equity requires, the collective liability of some as a group shall constitute a single share; and (c) principles of equity applicable to contribution generally shall apply." G.L. c. 231B, § 2. In their comment to § 2 of the Uniform Act, which is identical to G.L. c. 231B, § 2, the Commissioners on Uniform State Laws state that, "[t]his section in positive terms resolves several difficult questions of policy. First, it recognizes and registers the lack of need for a comparative negligence or degree of fault rule in contribution cases." Commissioners' Comment, Uniform Contribution Among Tortfeasors Act, § 2, 12 U.L.A. 87 (1975).

Cantu concedes that G.L. c. 231B, § 2, "appears to require a Court to assess contribution between codefendants without even considering the degree of responsibility of each such joint tortfeasor." However, he argues that the Legislature's later enactment of G.L. c. 231, § 85, ⁴ impliedly repealed G.L. c. 231B, § 2(a).

There is no direct conflict between the provisions of the two statutes and therefore no reason to apply the exceptional doctrine of implied repeal. See Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 281, 475 N.E.2d 727 (1985), quoting Commonwealth v. Bloomberg, 302 Mass. 349, 352, 19 N.E.2d 62 (1939) ("Unless the prior statute is so repugnant to and inconsistent with the later enactment that both cannot stand, then the former is not deemed to have been repealed"). The purpose of G.L. c. 231, § 85, was to ameliorate the harsh result of the contributory negligence rule and "permit recovery by a plaintiff whose negligence was not greater than the negligence of the defendant." Riley v. Davison Constr. Co., 381 Mass. 432, 438 n. 5, 409 N.E.2d 1279 (1980). Under G.L. c. 231, § 85, the jury are required to compare the plaintiff's negligence to the total amount of negligence attributable to the defendant or to all defendants. Only if the plaintiff is found to be fifty-one per cent negligent will his recovery be barred. Graci v. Damon, 6 Mass.App.Ct. 160, 170, 374 N.E.2d 311, aff'd 376 Mass. 931, 383 N.E.2d 842 (1978). The statute is entirely silent as to how contribution is to be apportioned between codefendants. Nothing in G.L. c. 231, § 85, undermines the system of pro rata contribution mandated by G.L. c. 231B.

Opinions that have examined the relationship between the two acts have found no inconsistency in their provisions. In Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 350, 446 N.E.2d 1033 (1983), we explained: "Taken together, these statutes [G.L. c. 231, § 85, and G.L. c. 231B] make clear 'that the negligence of a plaintiff is to be compared with the total negligence of all the defendants, all of whom are liable to the plaintiff, with contribution among the joint tortfeasors on a pro rata basis,' " quoting Graci v. Damon, 6 Mass.App.Ct. at 170, 374 N.E.2d 311. In Graci, supra at 169, 374 N.E.2d 311, the Appeals Court noted that in adopting G.L. c. 231, § 85, "it is clear that the Massachusetts Legislature did not accept the closely related rule in Wisconsin requiring contribution by joint tortfeasors in proportion to the degree of their negligence.... It rather retained intact G.L. c. 231B ... which provides in § 2, 'In determining the pro rata shares of tortfeasors in the entire liability (a) their relative degrees of fault shall not be considered.' " See Smith, Comparative Negligence in Massachusetts, 54 Mass.L.Q. 140, 148 (1969) ("It is clear that the Massachusetts Comparative Negligence Statute has no effect on [G.L. c. 231B, § 2]"); Bouchard, Apportionment of Damages under Comparative Negligence, 55 Mass.L.Q. 125, 133 (1970) ("The Comparative Negligence Statute does not apply in actions of contribution between tortfeasors.")

To support his argument for implied repeal, Cantu cites the cases of Bartels v. Williston, 276 N.W.2d 113 (N.D.1979) and Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (1982). Both are easily distinguishable. In Bartels, supra at 121, the court held that § 2 of North Dakota's Uniform Contribution Among Tortfeasors Act had been impliedly repealed by the State's comparative negligence act because the latter specifically provided that when "two or more persons ... are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each." Id. at 118. General Laws c. 231, § 85, contains no analogous provisions mandating contribution by comparative fault which would conflict with the pro rata provisions of G.L. c. 231B. In Bartlett, supra 98 N.M. at 158-159, 646 P.2d 579, the court, having already adopted the doctrine of pure comparative negligence, held that contribution was also to be determined according to principles of comparative fault. There, however, the court was not confronted with a contribution statute which, like G.L. c. 231B, § 2, expressly prohibited any consideration of fault in determining pro rata shares. Id. at 158, 646 P.2d 579. In those jurisdictions which have enacted § 2 of the Uniform Contribution Among Tortfeasors Act, courts have been unwilling to presume, solely on the basis of the subsequent adoption of comparative negligence, an intent to repeal the Uniform Act's pro rata method of allocating liability. See Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 430-433 (Alaska 1979) (judicial adoption of comparative negligence does not change pro rata contribution scheme); LINCENBERG V. ISSEN, 318 SO.2D 386, 393 (FLA.1975)⁵ (pro rata provisions of Uniform Act preclude application of comparative fault to contribution); Liberty Mut. Ins. Co. v. General Motors Corp., 65 Hawaii 428, 653 P.2d 96 (1982) (comparative negligence statute does not affect Uniform Contribution Among Joint Tortfeasors Act).

Thus neither the language of G.L. c. 231, § 85, its interpretation by our courts, nor the decisions of other jurisdictions regarding the impact of comparative negligence on § 2 of the Uniform Contribution Among Tortfeasors Act support Cantu's argument for implied repeal. We are sympathetic to the proposition that where joint tortfeasors bear different degrees of responsibility for a plaintiff's injuries, it is more equitable to apportion their liability on the basis of comparative fault. However, it is the Legislature's prerogative to make such a change in our law, not ours. We therefore agree with the judge below that G.L. c. 231B, § 2, bars any consideration of the relative fault of a codefendant in assessing his or her pro rata share of the damages.

2. Equitable Principles.

Cantu also argues that fault-based contribution is implicitly sanctioned by G.L. c. 231B, § 2 (c), which states that in determining the pro rata shares of joint tortfeasors "principles of equity applicable to contribution generally shall apply." He contends that § 2(c...