Horton Ex Rel. Horton v. Orbeth, Inc. ( 1984 )

COYNE, Justice.

On July 22, 1977, John Horton was injured in a boating accident. Horton’s guardian ad litem brought an action on his behalf against appellants Orbeth, Inc., and Bradley Nelson, the owner and the operator, respectively, of the boat which struck Horton. Appellants instituted third-party proceedings against Horton’s two companions, respondents Timothy Johnson and David Melchert, seeking indemnity or contribution.

The matter was tried to a jury, which determined by special verdict that Horton had sustained damages of $800,000 and apportioned causal negligence among the plaintiff, the defendants, and the third-party defendants in these percentages:

John Horton 10%

Bradley Nelson 74%

Timothy Johnson 8%

David Melchert 8%

On September 4, 1980, the trial court ordered the entry of judgment awarding Horton damages of $720,000 against appellants Orbeth, Inc., and Bradley Nelson (for whose negligence Orbeth, Inc., is vicariously liable) and entry of judgment in favor of third-party defendants Johnson and Melc-hert.

Subsequently, the main action was settled; the trial court approved the settlement in the amount of $600,000 on January 5, 1981. On September 2, 1981, the appellants moved for judgment against Johnson and Melchert on a theory of contribution among joint tortfeasors. That motion was denied, and judgment in favor of respondents Johnson and Melchert was finally entered on June 28, 1982.

On appeal from that judgment the appellants contend that they have paid more than their proportionate share of the plaintiff’s damages and that, although the plaintiff had no viable claim against them, the respondents are co-tortfeasors from whom the appellants are entitled to exact contribution. We affirm.

At the time of the accident which gave rise to these proceedings, actions involving negligence were governed by Minn. Stat. § 604.01 (1976). The effect of the comparative negligence of the parties on the claimant’s cause of action and on the apportionment of damages was set out at § 604.01, subd. 1:

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. The court may, and when requested by either party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering. When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each, provided, however, that each shall remain jointly and severally liable for the whole award.¹

The statute provides in plain language for proportionate contribution among those who are “jointly liable” to the plaintiff and who are “jointly and severally liable for the entire award.” The statute makes no provision for contribution by one who is not jointly liable to the plaintiff. Here the jury found the plaintiff more negligent than either respondent. Accordingly, had the plaintiff asserted claims against Johnson and Melehert in the main action, they would have been adjudged not liable to the plaintiff. Minn.Stat. § 604.01 (1976). See Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 246, 207 N.W.2d 706, 709 (1973). Since Nelson and Orbeth, Inc., are the only parties who are liable for the award, the statutory scheme of damage apportionment does not contemplate contribution by Johnson or Melehert. See Jack Frost, Inc. v. Engineered Building Components Company, Inc., 304 N.W.2d 346 (Minn.1981) (where one defendant was more negligent than the plaintiff and another defendant was less negligent than the plaintiff, the more negligent defendant was liable for the entire amount of the plaintiffs damages reduced only by the proportion of causal negligence attributable to the plaintiff).

Nor does Minnesota’s time-honored common law of contribution justify the claim of the appellants for contribution from parties who are not liable to the injured party. “The very essence of the action of contribution is ‘common liability.’ ” American Automobile Ins. Co. v. Molling, 239 Minn. 74, 76, 57 N.W.2d 847, 849 (1953). “[I]t is joint liability, rather than joint or concurring negligence, which determines the right of contribution.” Spitzack v. Schumacher, 308 Minn. 143, 148, 241 N.W.2d 641, 645, n. 2 (1976) (emphasis in original). Although contribution is an equitable doctrine, the doctrine requires only that “persons under a common burden share that burden equitably.” Id. at 145, 241 N.W.2d at 643. In the present case the appellants and respondents are not under a common burden. The burden is that of the appellants alone. Even though the jury found the respondents negligent to some degree, neither was negligent to a degree sufficient to impose liability to the injured party. We have consistently refused to require a party to contribute to an award when the quality of his conduct did not justify imposing liability to the injured party. E.g., Hart v. Cessna Aircraft Co., 276 N.W.2d 166 (Minn.1979) (defendant airplane manufacturer not entitled to contribution from defendant pilot whose conduct was found not negligent in a prior action); Spitzack v. Schumacher, 308 Minn. 143, 241 N.W.2d 641 (1976) (liquor vendor denied contribution from a driver found less negligent than the intoxicated decedent in prior action).

Of course, what constitutes “common liability” is not susceptible of a single precise definition. The concept, an element of the equitable remedy of contribution, is accorded some elasticity. Common liability does not depend solely on whether or not a plaintiff can enforce recovery against two or more defendants. We have held that certain technical defenses, defenses that do not go to the merits of the case, do not extinguish common liability even though they eliminate one defendant’s direct obligation to compensate the plaintiff. Jones v. Fisher, 309 N.W.2d 726, 729 (Minn.1981). In such instances it is a factor extrinsic to the tort itself {e.g., failure to provide statutory notice, covenant not to sue, personal immunity, or the running of the statute of limitations) by which liability is avoided. The acts or omissions of the excused defendant were otherwise sufficient to subject the defendant to liability. In the present case, however, the non-liability of respondents Johnson and Melehert is not the product of a technical defense — a jury has judged their conduct on the merits and found them less negligent than the plaintiff.² In a long line of cases we have uniformly declined to allow contribution where there has been a valid determination on the merits that common liability (however flexible its definition) could never have existed. E.g., Spitzack v. Schumacher, 308 Minn. 143, 147-48, 241 N.W.2d 641, 644 (1976).

Lambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (1977), and its progeny do not stand as authority for the proposition that common liability is no longer relevant to the availability of contribution. Lambertson was injured in an industrial accident. Lambertson was negligent, but in a lesser degree than either the manufacturer of the offending equipment (25%) or Lambertson’s employer (60%). We permitted the manufacturer to recover “contribution” from the employer even though there was no common liability in tort: Under the exclusive remedy clause of the Workers’ Compensation Act the employer enjoyed a personal immunity from tort liability to his employee. Since, however, the employer was liable for the no-fault benefits fixed by the Workers’ Compensation Act, the manufacturer and the employer were each liable — albeit uncommonly — to Lambertson. In the sense, then, that both were liable to Lambertson, “common liability” did exist.

Moreover, while Lambertson speaks in terms of contribution, the real impact of the decision was the limitation of a negligent employer’s right of subrogation. The Workers’ Compensation Act, while imposing on an employer liability to his injured employee for the benefits prescribed by the Act — without regard to the employer’s fault — also affords the employer a right to reimbursement from the proceeds of the employee’s action against a third-party tortfeasor — again without regard to the employer’s fault. Minn.Stat. § 176.061, subds. 5, 6 (1982). In Lambertson we ameliorated the manifest inequity of requiring a third-party tortfeasor not only to compensate the injured worker but also to indemnify the worker’s more negligent employer, by requiring the employer to “contribute” to the award. We held that although contribution was to be proportional to the employer’s negligence, it could not exceed the level of common liability. The employer was obligated to contribute only up to the amount of workers’ compensation benefits payable even though the employer’s fault-based share of the damages would have been greater. In short, contribution was merely a vehicle for offsetting a negligent employer’s right of subrogation. See also Johnson v. Raske Building Systems Inc., 276 N.W.2d 79 (Minn.1979).

Nor did the recent extension of the Lambertson principle in Hudson v. Snyder Body, Inc., 326 N.W.2d 149 (Minn.1982), alter the basic requirement of common liability. In Hudson, as in Lambertson, we permitted contribution proportional to the employer’s negligence but limited to the amount of workers’ compensation benefits payable. In Hudson, unlike Lambertson, the employee could not have recovered damages in a tort action against his employer pursuant to the applicable comparative negligence statute. Nevertheless, Hudson’s employer and the third-party tortfeasors shared the same kind of “common liability” that Lambertson’s employer and the equipment manufacturer shared; and the effect of the decision in Hudson, like that in Lambertson, was to deny a negligent employer a right of reimbursement with respect to his statutory liability to the extent of the employer’s proportionate share of the fault. In the present case the respondents have no liability to the plaintiff either on the merits of the plaintiff’s common law cause of action or by reason of any statutorily imposed obligation. No species of common liability exists between appellants and respondents on which contribution can be based.

The appellants justify their quest for contribution on the ground that it is “unfair” to require a party who was found 74% causally negligent to pay 90% of the damages sustained by the plaintiff. The respondents counter with the contention that it would be “unfair” to require a party to contribute to the payment of damages for which a jury has said he is not liable. Minn.Stat. § 604.01, subd. 1 (1982) provides (a) that the plaintiff cannot recover from one whose degree of fault is less than the plaintiff’s, and (b) that the damages shall be reduced only in proportion to the plaintiff’s fault. It would, perhaps, have been more consistent had the legislature decreed that the damages be reduced in proportion to the aggregate fault of the plaintiff and all less-at-fault parties, from' whom the plaintiff cannot recover, but that is not what the legislature did. Rather, it determined that any defendant who is liable shall be jointly and severally liable for the whole award (diminished only by the plaintiffs proportionate share of fault) and that those parties jointly liable shall each contribute in proportion to his fault. Minn. Stat. § 604.02, subd. 1 (1982). Thus, the legislature has created a modified comparative fault system which comprises liability and contribution.³ We have previously declined to engraft a pure comparative fault liability exception to that statute. Cam-bern v. Sioux Tools, Inc., 323 N.W.2d 795 (Minn.1982). We now decline to engraft a pure comparative fault contribution exception to the statutory system.

Affirmed.

SIMONETT, J., took no part in the consideration or decision of this case.

1 . The 1978 amendment of Minn.Stat. § 604.01, subd. 1, included contributory fault within its scope of application and provided that the claimant’s fault should not bar recovery unless it were greater than the fault of the defendant. At the same time, the provision for apportionment of damages was placed in a separate section, Minn.Stat. § 604.02 (1982). The operative language relative to contributions by those jointly liable, contained in subdivision 1 of section 604.02, remains unchanged.

2 . Undoubtedly the jury had been instructed that the plaintiff was entitled to recover from another only if he were less negligent than the person from whom recovery was sought. Minn.R. Civ.P. 49.01(2).

3 . Although Maine has recently adopted pure comparative negligence with respect to contribution, Otis Elevator Co. v. F.W. Cunningham & Sons, 454 A.2d 335 (Me.1983), Maine’s modified comparative negligence statute goes only to liability and the reduction of damages. Me.Rev. Stat.Ann. tit. 14 § 156 (1971). It does not address the question of contribution. Maine’s comparative contribution is a creature of judicial decision. See Packard v. Whitten, 274 A.2d 169 (Me.1971).