### No. 96-023 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

ROBERTA PLUMB and MARTIN PLUMB, Petitioners,

THE FOURTH JUDICIAL DISTRICT COURT, , . ..

.. h ,vb,*., "..> '"E 

### MISSOULA COUNTY,MONTANA, 

### ....:, .*;; .,7i~.LA:~b si.,\.,. -;lj;ir:riE oULa, #eli *....

,, '(?rr,i .' ~. 

### Respondent.

ORIGINAL PROCEEDING

COUNSEL OF RECORD: For Petitioners: Gregory 0.

### Morgan (argued) and Robert Cameron

(argued), Gregory 0.

### Morgan, P.C., Bozeman,Montana For Respondent: Dan 

### L. Spoon, Reep, Spoon & 

### Gordon,Missoula, Montana; and John Alke (argued),Hughes, Kellner, Sullivan & 

### Alke, Helena, Montana

(forDefendant Southgate Mall) For Amici Curiae: Richard F. Cebull (argued)and Tiffany B. Lonnevik, Brown, Gerbase, Cebull, Fulton, Harman & 

### Ross, Billings, Montana

(forDr.Timothy Adams) J.Daniel Hoven, Browning, Kaleczyc, Berry & 

### Hoven, Helena,Montana

(forMontana Municipal Insurance Authority) Jerome T. Loendorf, Harrison, Loendorf, Poston & 

### Duncan,Helena, Montana

(forMontana Medical Association) R. Stephen Browning, Browning, Kaleczyc, Berry & 

### Hoven, Helena,Montana

(forMontana Hospital Association)

### Randy J. 

### Cox, Boone, Karlberg & 

### Haddon, Missoula, Montana; 

### and T. 

### Thomas Singer,Moulton, Bellingham, Longo & 

### Mather,Billings, Montana

(forMontana Defense 

### Trial Lawyers, Inc.) Robert L. Sterup,Dorsey & 

### Whitney, Billings, Montana

(forCBI 

### Services, Inc.) 

### William A. Rossbach and Elizabeth A. 

### Brennan, Rossbach & 

### Whiston,Missoula, Montana

(forMontana Trial Lawyers Association)

Heard: May 30, 

### 1996 Submitted: May 31, 1996 Decided: November 22, 1996 

### Filed:

### Justice Terry 

### N. Trieweiler delivered the opinion of the Court. I have no doubt that 

### if the records of the time of that ancient and apparently earliest of lawgivers, Hammurabi,could be completely restored,we should learn that in the third millennium before Christ men were complaining about the inefficiency of legal procedure, and I 

### fancy that if any of you are destined in the year 7000

### A.D. to revisit the glimpses 

### of the moon to examine and write a monograph for the 

### celestial choirs upon the condition of human law courts, you will be obliged to report to some Seraphic Commission that mankind still exhibits the same discontentment with its methods of adjusting human 

### differences that 

### you 

### know today. I

### must therefore askyou to 

### believe that in the course of a 

### half hour I 

### do not hope to lay my finger on the 

### cure for 

### a condition which is probably so inherent in our human imperfectionsas to

### be persistent as long as the need for litigation itself endures. We shall,I fear,be scarcely satisfied with our settlement of disputes until we have so purged and purified our natures as 

### to bring down the dove of domestic peace to be 

### a permanent sojourner amid the haunts of homo sapiens. United States District Judge Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, a 1921 

### lecture before The Association of the Bar 

### of the City of New York, reprintedin 31 

### Int1 

### 1 Socty

### of Barristers Q. 309 (1996). 

### Nowhere isour 

### society's "discontentment with [our]methods of adjusting human differences" more apparent than in the periodic enactment, interpretation,and amendment of § 27-1-703,MCA,

### which relates to apportionment of liability for damages. What follows is this Court'smost recent effort to blend due consideration for the Legislature'sresponsibility to establish social policy with the judiciary'sresponsibilityto assure that those efforts are pursued within constitutional parameters. The plaintiffs, Roberta Plumb and Martin Plumb,brought this action 

### in the District Court for the Fourth Judicial District 

### inMissoula County to recover damages from the defendant, Southgate Mall Associates, for injuries allegedly sustained by Roberta when she slipped and fellwhile on the Mall'spremises due to the Mall's alleged negligent maintenance of those premises. Over plaintiffs' objection, the Mall was allowed to file an amended answer in which it alleged that plaintiffs' damages were caused or contributed to by the negligent treatment and care provided by Roberta'streating physician, and that its liability should be reduced accordingly based on 5 27-1-703(6),MCA (1995). The Plumbs petitioned this Court for supervisory controlbased on our decision inNewville

### v.State DepartmentofFamilyServices (1994), 267 Mont. 237, 883 P.2d 793. We granted supervisory control, and now, after consideration of the arguments by both parties and numerous nmicicuriae, we reverse the order of the District Court which allowed the Mall to assert as an affirmative defense that its liability should

### be diminished due to the fault of an unnamed third party. We have been asked to decide the following issues: 1. Are the facts and issues presented in this case appropriate for resolution by supervisory control? 2. Does the opportunity for a defendant to reduce its liability by asserting as an affirmative defense that plaintiffs' damageshave been caused or contributed to by unnamed third parties pursuant to § 27-1-703(61, MCA (l995), violate principles of substantive due process as guaranteed by the federal and state constitutions?PROCEDURAL BACKGROUND In their complaint, Roberta and Martin Plumb allege that on September 13, 1992,Roberta entered the SouthgateMall inMissoula, and just inside the entrance, slipped and fell after stepping on a film of water which had not been visible on the highly polished floor. The Plumbs allege that Roberta's fall was caused by the Mall'snegligent failure to keep its premises in a reasonably safe condition and its negligent failure to warn her that the floorwas dangerously slippery. They allege that as a result of her fall, Roberta injured her lower leg,and that because of that injury,she has undergone a seriesof complicated surgical procedures and other complications,following whichher ability towalk is substantially impaired. Both Roberta and Martin sought damages from theMall for their losses related to Roberta'sinjuries. For its answer,the Mall admitted that it owned and controlled theproperty inquestion,but denied the other material allegations of the complaint and asserted various affirmative defenses. Deadlines for the completion of discovery and amendments to pleadings were established. However, four and one-half months after its answerwas filed,the Mall moved to amend the scheduling order, based on Senate Bill 212 which amended § 27-1-703,MCA

(1987) , by permitting the assertion of a "nonpartydefense," and providing certain procedural requirements in apparent response to

our decision in Newville. That Bill was signed by the Governor on April 5, 1995, and became effective on that date. By its terms,the Bill was applicable to all claims which had not yet been reduced to final judgment. The Mall'smotion to amend the scheduling order was granted. It then filed a motion to amend its answer pursuant to § 27-1-703(6),MCA (1995), to allege as a seventh affirmative defense that the Plumbs'injuries were caused,in whole or inpart, by a third party--specifically, Roberta'streating physician, Dr. Timothy 

### J. Adams. As part of its proposed seventh affirmative defense,theMall alleged that sinceDr.Adams'conduct contributed to or caused Roberta'sinjuries, it is entitled to a proportionate reduction in any damages for which it might be liable pursuant to the amended statute. The Plumbs opposed the Mall's motion to amend for various

reasons. Significant to our decision is their contention that § 27-1-703(6),MCA (19951,violates their rights and Dr. Adams' right to substantive due process pursuant to our decision in Newville


### . Over the Plumbs' objection, the District Court granted the Mall'smotion to amend its answer, and allowed the Mall to allege

as a seventh affirmative defense that Dr.TimothyAdams contributed to or caused Roberta'sinjuries and that its own liability should be reduced or eliminated accordingly. In order to avoid the time and expense of proceeding through trial preparation and possible trial without knowing the proper issues to be decided or the proper parties to be named,and blamed

### or defended, the Plumbs petitioned this Court for supervisory control. 

### ISSUE 1 

### Are the facts and issues presented in this case appropriate for resolution

### by supervisory control? The Plumbs contend that supervisory control is appropriate because this case involves a constitutional issue of major state-wide importance, there are no factual disputes related to that issue,and the normal appeal process is inadequate. TheMall contends that supervisory control is not appropriate because factual issues underlie its "nonpartydefense,"and that those issues should first be resolved by the District Court. We have, essentially, two lines of authority which set forth the standard for when supervisory control should be exercised. However, those standards are not consistent. The most oft-cited standard is that "supervisorycontrol is appropriatewhere the district court isproceeding under a mistake of law,and in so doing is causing a gross injustice." See,e.g.,Potter

v.DistrictCourt (1994),266 

### Mont. 384, 880 

### P.2d 1319; Slateexrel. Torresv. DistrictCourt (1994),265 

### Mont. 445, 877 

### P.2d 1008; Staleexrel.Forsylhv. DistrictCourt (1985),216 

### Mont. 480, 701 

### P.2d 1346; Stuteexrel.Fitzgeraldv. DistrictCourt (l985),217 

### Mont. 106, 703 

### P.2d 148. 

### This standard has its roots in the turn-of -the-centurycase of Slateexrel.Whiteside

### v.District Cou,? (1900), 24 

### Mont. 539, 63 

### P. 395, 

### in which this Court explained:[Supervisory control] has its own appropriate functions, and, without undertaking to define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where those courts are proceedingwithin their jurisdiction,but by 

### amistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy 

### by appeal is inadequate. Under such circumstances,the case being exigent,no relief could be granted under the other powers of this Court, and a denial of 

### a speedy remedy would be tantamount to a denial of justice. Whiteside, 24 Mont. at 562-63,63 

### P. at 400
A second line of authorities follows our decision 

### in Stateexrel. Racicdtv.District

### Court (1990) 

### , 244 Mont

### . 521, 798 

### P. 2d 1004, where we held that assumption 

### of original jurisdiction by supervisory control is proper when: (1) constitutional issues of -major statewide importance are involved; (2) the case involves purely legal questions of statutory and constitutional construction;and (3) urgencyand emergency factors

### exist,making the normal appeal process inadequate. Racicot, 244 Mont. at 524, 798 P.2d at 1006. While it is correct that prior to Racicof we had exercised supervisory control under all three circumstances set forth in the Racicol test, that decisionhas subsequentlybeen interpreted to mean that 

### all three circumstances must be present before supervisory control will be accepted. The three-part Racicot test has been followed in Craigv.DistrictCourt (1993) 

### , 262 Mont. 201, 202, 864 P.2d 791, 792-93,Stateexvel.Nelsonv. Dist~ictCaurt(1993),262Mont. 70, 72,863P.2d 1027, 1028,and AssociatedPressv.St~e(lggl),250 Mont. 299, 301,

We conclude that while the issues in this case satisfy either line of authorities, there will be circumstances which are appropriate for the exercise of supervisory control pursuant to Article VII, Section 2(2), of the Montana Constitution, and Rule 17(a),M.R.App.P., which do not satisfy the three-part test. Therefore, to the extent that the Rncicot decision suggests that all three elements must be established before supervisory control is exercised,and to the extent that subsequent decisions have applied the test in that fashion, they are reversed. An example of why the three-part test may not be appropriate in every case is our decision in Stnte exreL Deere & Co.v. District Cozrr! (1986), 224 Mont. 384, 730 P.2d 396. In Deere, we exercised supervisorycontrol todecide anotherprocedural issue presented by § 27-1-703,MCA (1981). Even though that case did not present a constitutional issue,we accepted jurisdiction in the interest of judicial economy. We stated: We turn now to the other issues raised by the parties in the cause. Wade'sBackhoe contended that this cause does not present a sufficient reason for the issuance of a writ of supervisory control or other appropriatewrit. Inview of the importanceof the issue presented here such a contention is really a subissue. If we had decided to denv the application for writ without comment on the qrounds that the matter could later be looked at bv us on appeal,we would be foresoinq an important opportunity for the instruction of the courts and counsel as to our interpretation of amended Section 27-1-703,MCA, under the facts presented. In matters involvinq su~ervisorvcontrol, this Court has followed the practice of prdceeding on a case-by-case basis though we are careful not to substitute the power

### of supervisory control for an appeal. State

### exreL 

### Reidv. 

### DistrictCour.t (l953),126 Mont. 489, 255 P.2d 693. Justice and judicial economy is 

### served when, faced with a record that shows the relator is deprived of a 

### fundamental right, we resolve the issue in favor of the relator and assume j urisdiction. State

### exuel.

### Coburnv.

### Bennett (

### 1982) 

### , 202 

### Mont. 20, 655 P.2d 502. 

### We have also said that when a cause in 

### the District Court is mired in 

### procedural entanglementsand an appeal is not an 

### adequate remedy,we 

### will issue a writ of supervisory control. Stateexrel.

### Leavitt v. 

### DistrictCowt 

### (1977) 

### , 172 Mont

### . 12, 560 

### P.2d 517. We determine that this is an appropriate case for supervisory control and have therefore assumed jurisdiction. Deere, 224 Mont. at 399, 730 

### P.2d at 406. 

### We conclude that the constitutionality of § 

### 27-1-703(6), MCA (1995),is likewise an appropriate issue to decide by supervisory control. If, 

### as we later conclude, the District Court is proceeding based on a mistake of law when it permits the Mall to blame an unnamed third party for Roberta's injuries, then the

course 

### of discovery will be affected, the cost of preparation and trial will be affected,settlement by the parties will be rendered

more difficult,and the value of anyverdict will be questionable, meaning additional time and expense for a 

### resolutionof this issue by appeal 

### and the inevitable subsequent litigation. 

### Therefore,we 

### conclude that any remedy available to 

### the Plumbs by appeal is inadequate, and that the denial of a speedy remedy by supervisory control would be a denial of justice. ISSUE 2 

### Does the opportunity for a defendant to reduce its 

### liability by asserting as 

### an affirmative defense that plaintiffs' damages have been 

### caused or contributed to 

### by unnamed third parties pursuant to 27-1-703(6), MCA (1995)~ 

### violate principles ofsubstantive due process as guaranteed by the federal and state constitutions? When the District Court granted the Mall'smotion to amend its

answer and assert an affirmative defense based on its allegation that the alleged negligence of an unnamed third party should serve to reduce its liability,the District Court'sorder was tantamount to a determination that the 1995 amendments to § 27-1-703,MCA, satisfiedthis Court'sconstitutional concernsabout the assignment 

### of fault to unnamed and unrepresented third persons. That conclusion was a conclusion of law. We review conclusions of law to determine whether they are correct. Carbon Countyv. UnionReserveCoal Co. (1995),271 Mont. 459, 469, 898 P.2d 680, 686. InMontanaMilkControlBoardv.Rehberg (1962),141 Mont. 149,376 P.2d 508,we borrowed the test of substantive due process set forth by the U.S. Supreme Court in Nebbiav.New York (1934) , 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940. We held that: Similarly, we think Nebbia 

### v. New York, supra, properly sets forth the test we must use to determine whether or not the Montana Milk Control Act denies due process of law to the defendant Rehberg. In that case, the United States Supreme Court said: "(T)heguaranty ofdue process 

### *

## "*demand^ onlythatthe lawshall notbe unreasonable, arbitrary, or capricious, and thatthe means selected shall havea realandszd~stantial relationto the object sought to be altained. It results that a regulation valid for one sort of business, or in given circumstances,may be invalid for another sort, or for the samebusiness under other circumstances, because the reasonableness of each regulation depends upon the relevant facts." (Emphasisadded.) Nebbia v. New York, 291U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469

(1934). MilkControlBoard, 141 Mont. at 155, 376 P.2dat 512.We have used variations of that standard since. 

### See Newvdlev. StateDepftofFamilyServs. (1994),267Mont. 237,883 P.2d793;To~?n&Country EstatesAss'nv. Slater (1987),227 Mont. 489, 740 P.2d 668;Raislerv.Burlington NorthernR.R.

### Co. (1985) 

### , 219 Mont. 254, 717 P. 2d 535; Linder v. Smith (1981)

### , 193 Mont. 20, 629 P.2d 1187. However,inessence,substantive due process analysis requires that we decide (1)whether the legislation in question 

### is related to a legitimategovernmental concern,and (2)that themeans chosen by the Legislature to accomplish its objective are reasonably related to the result sought to be attained. Sincewe have already held in Newville that apportionment of liability among those responsible for a person's damage is a legitimate government

concern (Ne~wille, 267Mont. at 254, 883 P.2d at 803),our concern in this case is whether the 1995 amendments to § 27-1-703,MCA, are rationally related to the accomplishment of that objective. 

### To address that issue, we must first set forth the legislative and decisional history which has given rise to this issue. The history

### of § 27-1-703, 

### MCA (1981),

### is thoroughlydiscussed in 

### Deere. That discussion is continued, as it relates to the 1987 amendment to that statute, in Newville. We will not attempt to repeat all that is said therein, but merely offer the following summary to put our discussion of the 1995 amendments in context. In 1977, the Legislature adopted a right of contribution between or among joint tort-feasors. Section 58-607.2,RCM (1947)

### . After recodification, that section became what is now S 27-1-703,MCA. However, in ConsolidatedFreighhvays CorporationofDelaware

### v.Osier (1 97 9)

### , 185Mont

### . 439,605 

### P. 2d 1076,we held that the contribution statute did not apply in a situation where the plaintiff was not contributorily negligent,and that the language of the statutedid not provide for contribution from anyone other than defendants against whom the plaintiff had recovered judgment. For that reason, we held that contribution could not be sought, even pursuant to third-party practice provided for in Rule 14, M.R.Civ.P.,from persons who had not been named as defendants by the plaintiff. ConsolidatedFreighhvays, 185 Mont. at 444, 605 P.2d at 1079.In response to the Consolidated Freighhvays decision, the Legislature, in 1981, amended § 27-1-703,MCA (1977),to provide for contribution, even in those situations where contributory negligence had not been alleged,and to allow the defendant to join unnamed joint tort-feasorsfor the purpose of seekingcontribution. However, we held in Deere that since the amended statute provided for contribution "proportional to the negligence of the parties against whom recovery is allowed,"and since recovery would not be allowed from a person who had settled with the plaintiff, contribution could not be had from a defendant who had previously settled with the plaintiff. Deere, 224 Mont. at 393, 730 P.2d at 402. In response toDeere, § 27-1-703, MCA (1981) , was again amended by the Legislature in 1987. The 1987 amendment eliminated the obligation of joint and several liability for defendants who are 13found to be fifty percent or less at fault for a plaintiff's injuries,and permitted the trier of fact to apportion fault among not only theparties to the lawsuit,but also nonparties, including "persons released from liability by the claimant, persons immune from liability to the claimant, and any other persons who have a defense against the claimant.

### " Section 27-1-703, MCA (1987)

. 

### This so-called "nonpartynor "empty chairf1 defense was the subject of

our attention in Newville. InNe~wille,the plaintiffs were guardians ad litem for 

### a minor child who had been placed in the custody 

### of the State Department 

### of Family Services, which had then placed 

### her in a series 

### of foster homes, including the home of Dennis and Martha Kuipers. Edna Goodwin

### was a counselor from 

### the Departmentwho

### was involved in the child'splacement with ~ennis and Martha Kuipers. After the minor child was severely abused and permanently injured by Dennis Kuipers,both the Department and Edna Goodwin were sued Tor their inadequate investigation and supervision of the foster home placement. Theplaintiffs settled with Edna Goodwinprior Lo trial and proceeded to trial against Martha Kuipers and the Department. However, the jury was provided with a verdict which allowed it to assign a percentage 

### of responsibility for the child's injuries to Martha Kuipers, the Department, or Edna Goodwin. The jury did apportion thirty-five percent 

### of the total negligence to Edna Goodwin. On appeal, the plaintiffs in Newville challenged the constitutionalityof aprocedure which permitted their recovery tobe reduced based on the assignment of liability to a party who had not been present nor represented during the course of trial. We held, first of all, that plaintiffshad standing to assert not only their own constitutional rights,but also substantive due process rights 

### of the unnamed third parties because by the denial 

### of that party's procedural rights, the plaintiffs suffered potential economic loss. 

### We 

### held that that loss could potentially result from diminution of the plaintiffs' recovery by reducing the percentage of the defendantsI negligence. Newville, 267 Mont

### . at

We then discussed the 1987 amendments to § 27-1-703,

### MCA (19811,and concluded that the purpose of those amendmentswas to apportion responsibility fora person'sdamages among all those who might have contributed as a cause to those damages in order that those defendantsnamed by aplaint

### iff could avoid paying a judgment disproportionate to their respective degree of fault. Newville, 267 Mont. at 247-49, 883 P.2d at 799-800. After discussing the requirements of substantive due process, we held, however, that there were no procedural safeguards provided for in 5 27-1-703(4) 

### , MCA (1987),to assure that the jury'sapportionment of liability

was an accurate reflection of the various parties' comparative fault. We stated: We conclude that § 27-1-703(4), MCA (1987), unreasonably mandates an allocation of percentages of negligence to nonparties without any kind of procedural safeguard. 

### As a result, plaintiffs may not receive a fair adjudication of the merits of their claims. It imposes a burden upon plaintiffs to anticipate defendants1attempts to apportionblame up to the time of submission of the verdict form to the jury. Such anapportionment is clearly unreasonable as to plaintiffs, and can also unreasonably affect defendants and nonparties. Newville, 267Mont. at 252, 883 P. 2d at 802. In otherwords, we held that both the plaintiffs' rights to substantive due process, and the rights of the nonparty to whom fault was assigned, had been violated. In dicta which followed our conclusion,but which was not the basis for our conclusion, we noted that in other states, where a defendant is allowed to blame nonparties,procedural requirements had been provided which were not provided by Montana's statute. Those procedural requirements incl-uded(1) notice to the plaintiff and the nonparty of the defendant'sintention to assign blame to a nonparty; (2) a limitation of time within which notice of a nonparty claim has tobe made; and (3)a requirement that it is the defendant'sburden toprove that a nonparty contributed as a cause to the plaintiff's injuries and would be partially liable. Based on our conclusion, we struck from that part of § 27-1-703(4),MCA (1987),the language which allowed assignmentof liability to "persons released from liability by the claimant, persons immune from liability to the claimant, and any other persons who have a defense against the claimant." Newville, 267 Mont. at 255, 883 P.2d at 803. We held, however, that since the unconstitutional portion of § 27-1-703(4), MCA (1987),was neither essential to the integrity of the statute,nor the purpose for its enactment, the remainingparts of that statute were severable and remained valid. Newville, 267 Mont. at 255-56, 883 P.2d at 804.

### In response to Newville, the 1995 

### Legislature enacted the amendments and procedures which are the subject of 

### this appeal. Those amendments were in the form of Senate 

### Bill 212 

### which amended subparagraph (4)

### of § 

### 27-1-703, MCA 

### (1987),to provide in part that:(4) 

### . . . The liability of nonparties, including persons released from liability by the claimant and persons immune from liability to the claimant,must also be considered by the trier of fact, 

### as provided 

### in subsection 16)

### . SenateBill 212 also added subparagraph (6)

### to § 

### 27-1-703, MCA 

### (1987),which provides as follows: (6) 

### (a)In an action based on negligence, 

### a defendantmay assert as a defense that the damages of the claimant were caused in full or in part by 

### a nonparty, which may be referred to as a 

### nonparty defense. (b) In determining the percentage of liability attributable to persons who are parties to 

### the action, the trier of fact 

### shall consider the negligence of nonparties, including persons released from liabilityby the claimant and persons immune from liability to the claimant, 

### if a nonparty defense is properly asserted in accordance with this subsection (6). 

### A finding of 

### negligence of a nonparty is not a presumptive or conclusive finding as to that nonparty forpurposes of a 

### prior or subsequent action involving that nonparty. (c) 

### The burden of proof as to a 

### nonparty's liability is on 

### the defendant or defendants who affirmatively plead 

### the nonparty defense, but 

### this subsection 6 

### does not relieve the claimant of the burden of proving that negligence on the part of the defendant or defendants contributedas aproximate cause to the injury of the claimant or alter other proof requirements. (d) A 

### nonparty defense must be affirmatively pleaded as 

### a part 

### of the answer. A defendant who gains actual knowledge of a nonparty defense after the filing of that defendant'sanswer may plead the defense with reasonable promptness, as determined 

### by 

### the trial court, in a manner 

### that is consistent with: (i) 

### giving the defendant a reasonable opportunity to discover the existence of a 

### nonparty defense; (ii) 

### giving the 

### claimant a reasonable opportunity to defend against a 

### nonparty defense; and(iii) giving the claimantareasonableopportunity, if appropriate, to add the nonparty as an additional defendant to the action before the expiration of the period of limitation applicable to the claim. However, this subsection (iii) does not extend the period of limitation or revive the action if the period of limitation has expired. (e) If a defendant asserts a nonparty defense,the defendant shall notify each nonparty who the defendant alleges caused the claimant'sinjuries, in whole or in part. Notification must be made by mailing the defendant's answer to each nonparty at the nonparty's last-known address by certified mail, return receipt requested. In other words, Senate Bill 212,which proposed amendments to § 27-1-703,

### MCA (1987), revived the nonparty defense which had been found unconstitutional in Newville, but provided several procedural requirementswhich had not been present in the 1987version of the statute. They include: (1) the requirement that the burden of proving a nonparty's liability is on the defendant; (2) a requirement that the nonparty defense be affirmatively pled; and (3)a requirement that a nonparty be notified that he or she is being blamed for the plaintiff's injuries. The legislative history of Senate Bill 212 indicates that the purpose forwhich itsproponents sought its enactment was to assure that liability for an injured person's damages was fairly apportioned among those who are at fault, and that no party be liable for a disproportionate amount of damages simply because of that party's superior financial ability to satisfy the judgment. Hearinq on SB 212 before the Senate Comrn. on Judiciary (Feb. 14, 1995) (statementof John Alke, Montana Liability Coalition). However, conspicuous by its absence from the 1995 amendments

was any opportunity for an unnamed third person to appear anddefend himself or herself. By that omission, the proponents of Senate Bill 212 ignored the central point of the Newville decision where we stated: No attorney represented Goodwin'sinterestsat trial and as a result, it is possible that the application of percentage of negligence was higher than would have been appropriate had the facts as to her case been presented by her own counsel. Neu'ville, 267 Mont. at 254, 883 P.2dat 803. On appeal from the order of the District Court, the Plumbs, and the amicicuriae who have supported their argument, contend that if fairness is the purpose of limiting a defendant's liability to his, her, or its percentage of negligence, then the solution provided for by Senate Bill 212 is not rationally related to that objective because, in spite of the additional procedural requirements now added, a jury's apportionment of liability to

someone who is not a party to the lawsuit, has not appeared, and has not been represented,will not be an accurate reflection of the true degree of that person'sfault. The Mall, and the amicicuriae who have appeared on its behalf, contend that the 1995 amendments to 5 27-1-703, MCA (1987), balance the rights of plaintiffs and defendants by providing a procedure for allocating liability based on the degree of a party's fault. They contend that without the "nonparty"process provided for by the 1995 amendments, defendants could not reduce their liability based on the true degree of a settling tort-feasor'sfault, and that the amendments addressed all of the procedural safeguards discussed in Newville.We conclude that,while the State has a legitimate interest in enacting a scheme of liability which apportions liability for damagesbased on the degree of aparty'sfault for anotherperson's injuries, the nonparty defense provided for by the 1995 amendments to 5 27-1-703,MCA (1987), is not rationally related to that legitimategovernmental objective,but is more likelyto accomplish the opposite result. We arrive at that conclusion for the following reasons: 1. The 1995 amendments to § 27-1-703, MCA (l987), permit the Mall to assign liability for the Plumbs' damages to Dr. Timothy Adams without affordingDr.Adams an opportunity to defend himself. As a result, Dr. Adams' professional reputation and economic interests are jeopardized without an opportunity to personally appear on his own behalf, cross-examine those witnesses who might criticize the carehe provided, or offer evidence in support of his

course of treatment. The percentage of liability assigned to Dr. Adams following this kind of process would not be a reliable or accurate apportionment of liability and cannot, therefore, be rationally related to the objectives for which Senate Bill 212's supporters contend that the 1995 amendments were enacted. 2. The Plumbs'right to recover that amount of damages from the defendant for which the defendant is proportionally responsible, and all of their damages in the event that the defendant is fifty-onepercent or more responsible, is jeopardized by the potential this procedure affords for disproportionate assignment of liability to an unnamed, unrepresented, and

### nonparticipating third person. The Plumbs are entitled,pursuant to § 

### 27-1-703,MCA 

### (l995),to recover all 

### of their damages from the Mall 

### in the event the Mall 

### is found to be fifty-onepercent ormore at fault, and the proportionate amount of damages for which the Mall is at fault in the event the jury finds it 

### to be less than fifty-onepercent responsible. The greater the 

### degree of fault that is assigned to unnamed nonparties, the greater the reduction in the Plumbs1recovery. Yet, without the opportunity to 

### appear and defend 

### themselves, nonparties are 

### likely to be 

### assigned 

### a disproportionate share of liability, and the Plumbsfrecovery is likely to be reduced beyond the degree to which a third party would 

### be 

### found at fault 

### if 

### he, she,or 

### it actually 

### had an opportunity 

### to defend themselves. 3. 

### As noted in Newville, 267 

### Mont. at 252, 

### 883 P.2d at 802, 

### "there is no reasonable basis for requiring plaintiffs to examine jury instructions, marshal evidence, make objections, argue the case, and examine witnesses from the standpoint of 

### the unrepresented parties,ff and requiring the plaintiff'sattorney to



### serve in such a 

### dual capacity is 

### actually antithetical to his or 

### her primary obligation, which is to represent the plaintiff by proving the 

### plaintiff's case. 4. 

### To the extent that 

### a party defendant is interested in 

### a true and accurate apportionment of liability, our rules of 

### third-partypractice and § 

### 27-1-703 (4)

### , MCA (1995)

### , already provide the means by which contribution can be sought from those who have been unnamed by the plaintiff but who may have contributed, infact, to the plaintiff's injuries and damages. Rule 14(a), M.R.Civ. 

### P., provides that 

### a defendant may join, as a third-party defendant, anyone who may be responsible for any part of the plaintiff 'sclaim. Section 27-1-703 (4), MCA (l995),permits any party against whom a claim is asserted for negligence resulting 

### in death or injury, to join any other party who may have contributed



### as 

### a cause of 

### the plaintiff'sinjury forpurposes of contribution. Rule 20(a), M.R.Civ.P., has been identified as the procedural mechanism for that joinder. We conclude that apportionment of liabilitypursuant to these procedureswould be rationally related to the Legislature'sobjective of assigning liability based on the degree of 

### a party's fault for another party'sdamages. A person joined as a result of these procedures would be afforded the opportunity to participate in discovery, cross-examine those witnesses who blame him or her, and present evidence on his or her own behalf. Following these opportunities,which are compelled by traditionalnotions of fairness,any apportionment of liability to that third party is much more likely to bear some relationship to reality. The one exception to the third-party practice alternative referred to in the preceding paragraph arises in the situation where a settling tort-feasormay be partially liable for an injured person'sdamages. As noted, based on language in § 27-1-703,MCA

(1981),which allows "cont:ribution



### . . . proportional to the negligence of the parties against whom recovery is allowed," settling tort-feasorsmay not be named as 

### third-party defendantsfor the purpose of contribution. However, as also noted in Deere, any recovery by the plaintiff is subject to a dollar-for-dollar offset by any amountpaid by the settling tort-feasor. While it is true that, in some cases, that amount of offset may be less than the settling tort-feasor'sproportionate share of liability, the

converse is equally true. We also note that, in spite of our decision inDeere, the language in § 27-1-703, MCA 11981), is still present in 5 27-1-703 (4), MCA (1995)


### . For these reasons,we conclude that that part of § 27-1-703, MCA (1995),which allows apportionment of liability to parties who

are not named in the lawsuit and who do not have an opportunity to appear and defend themselves (specifically,the quoted portion of subparagraph (4)and all of subparagraph (6)'), is not rationally

of nonparties, including persons claimant and persons immune from alsobe considered by the trier of

(6). '(4)


### . . . The liability released from liability by the liability to the claimant,must fact, as provided in subsection



### .... (6) (a) In an action based on negligence, a defendant may assert as a defense that the damages of the claimant were caused in full or in part by a nonparty, which may be referred to as a nonparty defense. (b) 

### In determining the percentage of liability attributable to persons who are parties to the action, the trier of fact shall consider the negligence of nonparties, including persons released from liabilityby the claimant andpersons immune from liability to the claimant, if a nonparty defense is properly asserted in accordance with this subsection (6). A finding of negligence of a nonparty is not a presumptive or conclusive finding as to that nonparty for purposes of a prior or subsequent action involving that nonparty. (c) The burden of proof as to a nonparty's liability is on the defendant or defendants who affirmatively plead the nonparty defense, but this subsection (6)does not relieve the claimant of the burden of proving that negligence on the part of the defendant or defendantscontributed as aproximate cause to the injuryof the claimant or alter other proof requirements.related to the legitimate government objective of fairly apportioning liability among parties based on the degree to which their negligence contributes to another person's injuries; and therefore, that the offending portions of 5 27-1-703,MCA (1995), violate the right of substantive due process guaranteed to Roberta and Martin Plumb and Dr.Timothy Adams by the Fourteenth Amendment to the United States Constitution, and Article 11, Section 17,of the Montana Constitution. Our conclusion that the offending statutoryprovisions violate the right to substantive due process provided for in the Montana Constitution is independent of and separate from our analysis of those rights provided for by the United States Constitution. For those reasons set forth in Newville v. Slate Department ofFnmily Services (1994),267 Mont. 237, 883 P.2d 793,we also conclude that those portions of 5 27-1-703,MCA (1995),which we find offensive

(d) A nonparty defense must be affirmatively pleaded as a part of the answer. 

### A defendant who gains actual knowledge of a nonparty defense after the filing of that defendant'sanswer may plead the defense with reasonablepromptness,as determined by the trial court, in a manner that is consistent with: (i) giving thedefendant areasonable opportunity todiscover the existence of a nonparty defense; (ii) giving the claimant a reasonable opportunity to defend against a nonparty defense; and (iii) giving the claimant a reasonable opportunity, if appropriate, to add the nonparty as an additional defendant to the actionbefore the expirationof theperiod of limitation applicable to the claim. However, this subsection (iii)does not extend the period of limitation or revive the action if the period of limitation has expired. (e) If a defendant asserts a nonparty defense,the defendant shall notify each nonparty who the defendant alleges caused the claimant's injuries, in whole or in part. Notification must be made by mailing the defendant's answer to each nonparty at the nonparty's last-knownaddress by certified mail, return receipt requested.to the right to substantive due process are not necessary to the integrity of the remainder of that statute,were not an inducement to the remainderof the statute'senactment,and are severable from the valid portions of § 27-1-703,MCA (1995). We further conclude that the remainder of the statute is capable of being implemented in accordance with the Legislature'sintent. Based on the foregoing opinion, the District Court's order permitting SouthgateMall Associates to amend their answer and set forth a seventh affirmative defense which assigned liability to unnamed persons is reversed, and this case is remanded to the District Court for further proceedings consistent with this opinion.

We concur:

Chief Justice

### Chief Justice J.A. 

### Turnage respectfully concurs and dissents. I do not disagree with the result reached by the majority in this case. However, I dissent to mu'zhthat has been said in the majority opinion which is overbroad a.ndentirely unnecessary. The first issue in this case is whether the facts and issues presented are appropriate for resolutionby supervisory control. In State ex rel. Racicot v. District Court (1990),244 Mont. 521, 798 P.2d 1004, this Court held that assumption of original jurisdiction by supervisory control is proper when three circumstances exist: (1) constitutional issues of major statewide importance are involved; (2) the case involves purely legal questions of statutory and constitutional construction;

## and (3)urgency and emergency factors exist,making the normal appeal process inadequate. Racicot, 244 

### Mont. at 524, 798 P.2d at 1006 (emphasis added). This three-part test has been followed in our subsequent decisions of Craig v. District Court (l993),262 Mont. 201, 864 P.2d 791; State ex rel.Nelson v. District Court (1993),262 Mont. 70, 863 P.2d 1027;and Associated PreE:sv. State (1991),250 Mont. 299, 820 P.2d 421. The majority in this case conclc.desthat the issues in this case satisfy all three of the three-part requirements of the Racicot decision and the cases that followed that decision. The majority,however, goes onthe concludethat to the extent that the Racicot decision requires that all three elements be satisfied before this Court will accept supervisory control,it isnecessary 2 6

### to reverse the Racicot decision and the subsequent decisions that have applied the test as set forth in Racicot. To the extent that the majority opinion reverses this prior precedent, I believe the majority opinion is wrong. Under thisnewapproachto thegranting of supervisory control it is entirely possible that all a petitioner need allege is that the issues involved in the petition address constitutional issues of major statewide importance the case involves a purely legal question of statutory or constitutional construction. This part of the majority opinion is an open invitation for petitioners to come to this Court and point to this case as precedent asking this Court to intervene and decide the case for them without the necessity of proceeding with a normal appeal process. This short-cut to questionable justice is inappropriate and undoubtedly will bring to the Supreme Court a great number of extraordinary petitions for supervisory control. I therefore respectfully dissent to the foregoing portion of the majority opinion. 

### I further dissent to a portion of what has been stated in the majority opinion concerning the second issue in this case,relating to the constitutionality of that portion of S 

### 27-1-703(6) 

### , MCA (1995) relating to damages caused or contributed to by unnamed third parties. I do not disagree with the ultimate result of the Court's decision in its conclusions 

### on that issue; however, I believe thatthe Court'sconclusion is far too overbroad and unnecessary. 

### I agree with that portion of the majority opinion which states: TO the extent that a party defendant is interested in a true and accurate apportionment of liability, our rules of third-party practice and 5 27-1-703(4),MCA

(1995),already provide the means by which contribution can be sought from those who have been unnamed by the plaintiff but who may have contributed, in fact, to the plaintiff's injuries and damages. Rule 14(a), M.R.Civ.P.,provides that a defendant may join, as a third-partydefendant,anyonewho may be responsible for anypart of the plaintiff'sclaim. Section 27-1-703 (4), MCA (1995),permits any party against whom a claim is asserted for negligence resulting indeath or injury, to join any otherparty who may have contributed as a cause of the plaintiff'sinjury for purposes of contribution. Rule 20(a), M.R.Civ.P., has been identified as the proceduralmechanism for that joinder. We conclude that apportionment of liability pursuant to these procedures would be rationally related to the Legislature's objective of assigning liability based on the degree of a party's fault for another party'sdamages. A person joined as a result of these procedures would be afforded the opportunity to participate in discovery, crossexamine those witnesseswhoblame him orher,and present evidence on his or her own behalf. Following these opportunities,which are compelledby traditionalnotions of fairness,any apportionmentof liability to that third party is much more likely to bear some relationship to reality. Having set forth this rational approach to a method of apportionmentof liability as a legislative objective in assigning liability based on the degree of a party's fault for another party'sdamages, the majority opinion at that point jumps off the track and states: "Theone exception to the third-partypractice alternative referred to in the preceding paragraph arises in the situation where a settling tortfeasor may be partially liable for an injuredperson'sdamages." The majority opinion relieson State ex rel. Deere & Co. v. District Court (1986),224 Mont. 384, 730P.2d 396, to support this exception to the third-partypractice alternative. This reliance is misplaced. In Deere this Court stated that "theprincipal issuewe decide here is that a joint tortfeasor who settles with the claimant before judgment on the claim is entered 

### in a district court is not subject to claims for contribution



### . . 

### . from 

### the nonsettling joint tortfeasors. Deere, 730 P.2d at 398. The majority opinion in this case states that "settling tortfeasors may not be named as third party defendants for the purposes 

### of contribution." Deere is based upon § 27-1-703,MCA (l98l), relating to contribution. 

### Deeredoesnot address 

### the questionof apportionment of liability. This Court in Deere stated with relation to the question of contribution,which again I repeat is not an issue in this case, the following: In reality, our decision on this issue is hinged upon our earlier interpretation of the statute herein that no right of contribution exists from a settling tortfeasor. It would make no sense to keep a settling tortfeasor in the action as an additional defendant or a third

### party defendanttodetermine itsproportional fault forplaintiff

## 'sinjuries, when thenonsettlingdefendants have 

### no right of contribution from the settling defendant. Contribution under § 27-1-703 is the obligationof "partiesagainstwhom recovery isallowed. Deere, 730 P.2dat 404. Contribution and apportionment of liability are two separate and distinct legal concepts. Deeredoes not support carving out an exception to the third-partypractice alternative, and, in doing so, I respectfully submit that the majority opinion is wrong. Certainly the legislature has a legitimate interest in 29