Moose Club v. LaBounty

FOLEY, Judge

(concurring specially).

I concur in the result that an action for contribution lies in this case. However, it is my view that there are issues about contribution that must be considered in order to finally resolve this case and settle the law.

In Coughlin v. LaBounty, 354 N.W.2d 48 (Minn.Ct.App.1984), pet. for rev. denied (Minn. Jan. 9, 1985), this court sustained the trial court’s decision that recovery be denied because tort thresholds of the act were not met. In that case, under the special verdict submitted to the jury, a damage award was returned by the jury but because the tort thresholds on either permanency of injury or disability for more than 60 days were not met, there was no recovery. LaBounty was a no-fault case covered by Minn.Stat. § 65B.51, subd. 3. The matter was properly submitted by special verdict. See Otto v. Hennen, 395 N.W.2d 414 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Jan. 2, 1987).

Based upon the evidence and the instructions of the court, and presumably argued by counsel to the jury, it strikes me the decision in LaBounty should have been the law of the case here and estoppel by judgment applied. See Howe v. Nelson, 271 Minn. 296, 301, 135 N.W.2d 687, 691 (1965). However, in Coughlin v. Radosevich, 372 N.W.2d 817 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Nov. 1, 1985), this court held:

Because the question of damages was unnecessarily decided in LaBounty, the determination does not collaterally estop the relitigation of damages in the present case.

Id. at 820 (emphasis added). I have trouble with that holding. Under Minn.Stat. § 65B.51, subd. 3, damages would necessarily have to be considered along with other questions dealing with tort thresholds. If tort thresholds were met, damages could be recovered. If this case is reviewed by the supreme court, I would request that the court clarify Minn.Stat. § 65B.51, subd. 3 and point out just what form the special verdict ought to take. To leave damage questions off the verdict, as Radosevich at least implies, would require a further trial if tort thresholds were met. This would seem to be unnecessary litigation and place an unwarranted economic burden on the system. I suggest it is more orderly to have all questions — negligence, tort threshold and damages — considered in one lawsuit under Minn.Stat. § 65B.51, subd. 3.

In any event, on the issue of contribution, it is my view that LaBounty should not be obligated for more than the amount returned against him in the jury trial. Here, an important consideration is the fact that the settlement of $86,000, upon which contribution is based, is premised upon a different evaluation of damages from that determined by the jury in LaBounty. At the contribution trial, which we now order, there should be a comparative fault question on negligence of both LaBounty and Moose Lodge. However, since contribution is based on equity and LaBounty has already determined the damages caused by LaBounty to the injured party, his obligation should be proportional to his percentage of negligence but limited to no more than the sum already found by the jury trial in LaBounty. See Peterson v. Little-Giant Glencoe Portable Elevator Division of Dynamics Corp. of America, 366 N.W.2d 111, 116 (Minn.1985); see also Lambertson v. Cincinnati Corp., 312 Minn. 114, 123-24, 257 N.W.2d 679, 685-86 (1977).

Here, the jury should also consider the reasonableness of the settlement entered into in the dram shop case under Miller v. Shugart, 316 N.W.2d 729 (Minn.1982), and if found reasonable, an appropriate percentage of contribution by LaBounty determined of the $25,170 verdict and stipulated medical damages of $3,850 previously awarded but in no event more than that sum. On the right to a jury trial in determining the question of reasonable settlement, see Economy Fire & Casualty Co. v. Iverson, 426 N.W.2d 195 (Minn.Ct.App.1988), pet. for rev. granted (Minn. July 28, 1988); Hartfiel v. McLennan, 430 N.W.2d 215, 223 (Minn.Ct.App.1988) (Foley, J., concurring specially and dissenting).