Floyd v. Carlisle Const. Co., Inc. , 1988 Ky. LEXIS 61 ( 1988 )

VANCE, Justice.

The question is whether a defendant in a tort claim is entitled to an instruction which would allow the jury to apportion a part of the plaintiffs damage against a joint tort-feasor with whom the plaintiff has settled but who was not named as a party defendant by the plaintiff and whom the defendant did not name as a third-party defendant.

The movant, William Floyd, was injured in a collision between an automobile driven by Steven Whittamore and a road grader operated by Stephen Wood and owned by Carlisle Construction Company. Floyd settled his claim against Whittamore and instituted suit against Wood and Carlisle Construction Company. Whittamore was never named as a party to the lawsuit, either as a defendant in plaintiff Floyd’s complaint or as a third-party defendant by either Wood or the Carlisle Construction Company.

At trial, the appellees requested an instruction that would enable the jury to apportion the fault between the appellees and Whittamore even though Whittamore was not a party to the litigation. The trial court denied the requested instruction. The jury returned a verdict for Floyd in the amount of $59,601.04.

The Court of Appeals reversed and remanded for a new trial solely upon the question of the proper apportionment of liability.

The apportionment of liability by the jury among joint tortfeasors was approved in Orr v. Coleman, Ky., 455 S.W.2d 59 (1970). In that case Anna Lee Coleman was severely injured in a collision between an automobile driven by John William Waterer and owned by Southeastern Car Rental, Inc., (hereinafter called Avis) in which she was a passenger, and an automobile driven by Mary Louise Orr and owned by Bobby Ray Orr. Mrs. Coleman brought a suit for damages against Waterer, Avis and the Orrs. Before the case went to trial she settled with Waterer and Avis for $19,000, reserving her rights against the Orrs, whereupon her claim against Waterer and Avis was dismissed by agreed order.

Under those circumstances we held that even though Waterer and Avis had been dismissed and were no longer parties to the litigation, it was necessary for the jury to determine the total damage sustained by the plaintiff and apportion the liability between the Orr’s, who remained as a party to the suit, and Walter and Avis who were no longer parties. We said:

“The practical answer is that the jury should be required to assess the total amount of the claimant’s damages and fix the proportionate share of the nonset-tling tortfeasor’s liability on the basis of his contribution to the causation. The trial court may then compute the amount of the judgment to be entered against the nonsettling tortfeasor, thus fixing his ultimate liability (and incidentally obviating any question of or necessity for contribution).”

Id. at 61.

Orr v. Coleman, supra, was premised upon K.R.S. 454.040 which provided that in actions for trespass the jury may assess joint or several damages against the defendants. The apportionment was permitted against one who had been, but at the time of trial, was no longer a defendant.

In Nix v. Jordan, Ky., 532 S.W.2d 762 (1975), Mrs. Nix was injured in a collision between a car driven by her husband in which she was a passenger and a vehicle operated by Jordan. She made no claim against her husband but instituted suit against Jordan, who implicated her husband as a third-party defendant.

The court held that apportionment was not proper because Mr. Nix was not named as a joint-defendant with Jordan in the suit filed by Mrs. Nix. It was stated:

“Though it might otherwise make good sense to apply the principle of apportionment among joint tortfeasors without exception, the authority for Orr v. Coleman, Ky., 455 S.W.2d 59 (1970) derives from a statute (KRS 454.040) which cannot fairly be construed that liberally. Literally, the statute permits apportionment only against ‘defendants,’ which necessarily means joint defendants. Orval Jordan was a defendant, but only as to the third-party complainants, and not as to the original plaintiff. In Orr v. Coleman, supra, the settling tortfeasor was no longer a defendant in the sense of being a party to the lawsuit, but it was our opinion that the public policy of encouraging settlements justified our construing KRS j5j.0j0 to include as ‘defendants’ joint tortfeasors who probably would have been defendants but for the fact that they had bought their peace. Certainly the settlement itself attests the active assertion of a claim, whereas in this case, by contrast, it is obvious that the plaintiff had not asserted any claim against her husband, the third-party defendant. ” (Emphasis ours.)

Id. at 763.

We note here the implication that a settlement itself attests the active assertion of a claim which in Orr v. Coleman was sufficient to constitute the nonparty settlor as a defendant under the premise that he would have been a defendant except for the fact that he had bought his peace.

In Daulton v. Reed, Ky., 538 S.W.2d 306 (1976), litigation was instituted against joint tortfeasors but was dismissed as to one of them before trial. We held that apportionment was required:

“In the recent case of Nix v. Jordan, Ky., 532 S.W.2d 762 (1975), it was pointed out that the principle of Orr v. Coleman, Ky., 455 S.W.2d 59 (1970), applies when there has been an active assertion of a claim against one who would be a defendant but for the fact that he has settled the claim. The same rationale applies to this situation, in which the claim asserted by the Reeds against Phillips was later dropped, whatever may have been the reason.”

Id. at 308.

The basis for these holdings is the active assertion of a claim against joint tort-feasors. If there is an active assertion of a claim against joint tortfeasors, and the evidence is sufficient to submit the issue of liability to each, an apportionment instruction is required whether or not each of the tortfeasors is a party-defendant at the time of trial.

A tortfeasor who is not actually a defendant is construed to be one for purposes of apportionment if he has settled the claim against him or if he was named as a defendant in the plaintiffs complaint even though the complaint was subsequently dismissed as to him.

The rule requiring apportionment among tortfeasors no longer rests exclusively upon K.R.S. 454.040. Apportionment also follows as a natural consequence of our decision in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984). In that case, we overturned a rule of long-standing that contributory negligence was an absolute bar to recovery and adopted the rule of comparative negligence. Our stated reason for doing so was that simple fairness required, “liability for any particular injury in direct proportion to fault.” Hilen, supra, at p. 718.

We have implemented this concept that the extent of liability is limited to the extent of fault in Prudential Life Insurance Co. v. Moody, Ky., 696 S.W.2d 503 (1985), in which we held that where the defendants are equally at fault, but the claim against one of them is barred by the statute of limitations, the other defendant cannot be liable for more than 50% of the damages.

It follows from Hilen v. Hays and Prudential Life Insurance Company v. Moody that when there are joint tort-feasors the liability of either of them is limited by the extent of his fault.¹

It must be noted that the apportionment of a part of the fault to a tortfeasor who is not a party to this action does not impose any liability upon him or warrant a judgment against him. The apportionment only determines the percentage of the total damages for which he was actually responsible and for which he bought his peace. The appellees are responsible for the remaining percentage of the damages, and the judgment against them will be limited to that amount.

Because no question was raised in the trial court concerning the amount of the damages fixed by the jury, the Court of Appeals correctly ruled that there is no need for a retrial insofar as the amount of damages is concerned.

The decision of the Court of Appeals is affirmed.

STEPHENS, C.J., and GANT, STEPHENSON and VANCE, JJ., concur. VANCE, J., concurs additionally by separate opinion. WINTERSHEIMER, J., concurs by separate opinion. LEIBSON, J., dissents by separate opinion in which LAMBERT, J., joins.

1 . Because of the rule established in Hilen v. Hays, Ky., 673 S.W.2d 713 (1984) a majority of this court would now hold that apportionment is required even as to joint tortfeasors brought in as defendants in a third-party complaint and would overrule Nix v. Jordan, Ky., 532 S.W.2d 762 (1975) to the extent that it holds otherwise.