Bervoets v. Harde Ralls Pontiac-Olds, Inc. , 891 S.W.2d 905 ( 1995 )

OPINION ON PETITION TO REHEAR

Both parties in this case have filed petitions for rehearing. Because this case marks the first time we have addressed the relationship between the Uniform Contribution Among Tortfeasors Act and our system of comparative fault, several procedural issues have arisen for which there is no guidance either in the Act or in our decisions dealing with comparative fault. Therefore, we grant the parties’ petitions to rehear in order to provide this necessary guidance.

The petitions present three issues for our determination: (1) whether on retrial the jury may consider the fault of the plaintiff; (2) whether on retrial the jury may consider awarding punitive damages; and (3) since Tenn.Code Ann. § 29 — 11—102(d) provides that a settling tortfeasor may not recover contribution from another tortfeasor for any amount of the settlement “in excess of what was reasonable,” whether the jury should be told the amount of the settlement and asked to determine its reasonableness, or whether the jury should be asked to determine damages anew.

We are of the opinion that on the retrial of this case the jury should first be informed of the amount of the settlement, and then asked to determine if that settlement was reasonable according to the principles of comparative fault. The jury may consider the fault of the plaintiff Bervoets and the defendants Jackson (Safeco Insurance Company) and Adanac Inc. in making this determination. If the jury finds that the settlement amount was reasonable, it shall proceed to determine the percentage of fault attributable to each of the defendants, and contribution will be ordered accordingly. If however, the jury finds that the settlement was, according to the principles of comparative fault, “in excess of what was reasonable,” this same jury will then determine the proper amount of damages; and the jury may consider the fault of plaintiff and the two defendants in making this determination. Once the jury has determined the proper amount of damages, it shall then determine the fault attributable to each of the defendants. If the jury finds that the third-party defendant was at fault, contribution shall be ordered from that defendant commensurate with its percentage of fault.

The jury may not consider punitive damages in either scenario. This action is for contribution; therefore, the defendant Jackson (Safeco) is essentially attempting to recover the amount paid by him in excess of his proportional share of liability. See Tenn. Code Ann. § 29-11-102(b). Thus, once the jury finds how much of the settlement amount (if any) exceeds Jackson’s proportional share of liability, his recovery is limited to that amount, as it is settled that a contribution plaintiff may only recover punitive damages from other tortfeasors if he has been held liable for punitive damages. See Dykes v. Raymark Industries, 801 F.2d 810, 813-14 (6th Cir.1986) (contribution plaintiff may recover from other tort-feasors punitive damages for which he has been held liable if the contribution plaintiff has not engaged in intentional conduct).

This case in remanded to the trial court for retrial in accordance with this opinion.

ANDERSON, C.J., and REID, O’BRIEN and BIRCH, JJ., concur.