State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss , 1979 Mo. LEXIS 366 ( 1979 )

DONNELLY, Judge,

dissenting.

In Sampson v. Missouri Pacific Railroad Co., 560 S.W.2d 573 (Mo. banc 1978), this Court affirmed a $300,000 judgment against Missouri Pacific for damages sustained by Robert Sampson, an employee of its consignee.

In Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466 (Mo. banc 1978), the appeal involved an attempt by Missouri Pacific, under Rule 52.11, to bring Whitehead & Kales into the Sampson case as a third party defendant liable to Missouri Pacific for all or part of Sampson’s claim against Missouri Pacific. The trial court dismissed the third party petition. We reversed and remanded, and adopted a system for the distribution of tort liability on the basis of relative fault, which will apply (1) where tort-feasors are joined as defendants by plaintiff and defendants cross-claim under Rule 55.32(f); and (2) where tort-feasors are added as defendants under Rule 52.11.

The question posed in this case is: How do we adjust and apply the system of relative fault in those situations, like the present, where judgment and recovery against one of multiple defendants is legally barred? In this case the bar is raised by The Workmen’s Compensation Law. The purpose of that Law would be circumvented if Charter, the employer, could be held liable to Maryland for Charter’s relative fault in causing plaintiff’s harm. Therefore, a judgment cannot be entered against Charter in this case. A similar situation, with similar result, would arise if the legal bar were in the form of a release given by the plaintiff to one of multiple defendants. See e. g., State ex rel. Normandy Orthopedics, Inc. v. Crandall, 581 S.W.2d 829 (Mo. banc 1979). Again, the purpose and function of the release would be circumvented if the released defendant could be held liable to other defendants for his relative fault in causing plaintiff’s harm. Therefore, a judgment could not be entered against the released party.

Inability to render a judgment against all multiple tort-feasors, however, does not make it necessary that we narrow the application of the relative fault concept in this case. The relative fault of Maryland, the tort-feasor, against which there is no legal bar to judgment should still be determined. In my view, a pure concept of relative fault requires that the right of a claimant to recover from one tort-feasor be determined in accordance with a jury’s finding of the respective percentages of fault as between all tort-feasors.

To illustrate:

A sues B. B brings in C. The jury assesses A’s total damages at $100,000, and finds B 60% at fault and C 40% at fault. Prior to trial, A gave C a release for a consideration of $20,000. The trial court would enter judgment for A against B for $60,000. A would collect a total of $80,000.

A sues B. B brings in C. The jury assesses A’s total damages at $100,000, and finds B 60% at fault and C 40% at fault. Prior to trial, A gave C a release for a consideration of $50,000. The trial court would enter judgment for A against B for $60,000. A would collect a total of $110,-000.

A sues B. B brings in C. The jury assesses A’s total damages at $100,000, and finds B 60% at fault and C 40% at fault. A, as an employee of C, has received benefits in the amount of $8,000 under The Workmen’s Compensation Law but is barred from further recovery against C by § 287.-120, RSMo 1978. The trial court would enter judgment for A against B for $60,000. A would collect a total of $68,000.

The need to determine the relative fault of tort-feasors would also require that motions to sever under Rule 66.02 would seldom, if ever, be granted where judgment against one tort-feasor is legally barred. Informing the jury of any extra-judicial payments by the non-liable tort-feasor to the plaintiff, e. g. workmen’s compensation payments, or consideration for a release, would likewise interfere with the determination of relative fault and thus would not be permitted.

To return to the case before us: Even though a judgment cannot be entered against Charter because of the bar raised by The Workmen’s Compensation Law, Charter should remain a party in the action in order to assure an accurate and fair determination of the relative fault and liability of Maryland. See Rule 52.04(a), which provides, in effect, that Charter should remain a party in this action because “in * * * [its] absence complete relief cannot be accorded among * * * ” plaintiffs and Maryland.

I would make the preliminary rule in prohibition absolute.

I respectfully dissent.