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 

(for Defendant Southgate Mall) 

For Amici Curiae: 

Richard F. Cebull (argued) and Tiffany B. 

Lonnevik, Brown, Gerbase, Cebull, Fulton, 

Harman & Ross, Billings, Montana 

(for Dr. Timothy Adams) 

J. Daniel Hoven, Browning, Kaleczyc, 

Berry & Hoven, Helena, Montana 

(for Montana Municipal Insurance Authority) 

Jerome T. Loendorf, Harrison, Loendorf, 

Poston & Duncan, Helena, Montana 

(for Montana Medical Association) 

R. Stephen Browning, Browning, Kaleczyc, 

Berry & Hoven, Helena, Montana 

(for Montana Hospital Association) 
Randy J. Cox, Boone, Karlberg & Haddon, 

Missoula, Montana; and T. Thomas Singer, Moulton, 

Bellingham, Longo & Mather, Billings, Montana 

(for Montana Defense Trial Lawyers, Inc.) 

Robert L. Sterup, Dorsey & Whitney, 

Billings, Montana 

(for CBI Services, Inc.) 

William A. Rossbach and Elizabeth A. Brennan, 

Rossbach & Whiston, Missoula, Montana 

(for Montana 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 ask you 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 

imperfections as 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 is our 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's most recent effort to blend due consideration for the 

Legislature's responsibility to establish social policy with the 

judiciary's responsibility to 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 in 
Missoula County to recover damages from the defendant, Southgate 

Mall Associates, for injuries allegedly sustained by Roberta when 

she slipped and fell while on the Mall's premises 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's treating 

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 control based on our decision in Newville 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 nmici curiae, 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' 

damages have 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 Southgate Mall in Missoula, 

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's negligent failure to keep its premises in a reasonably safe 

condition and its negligent failure to warn her that the floor was 

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 series of complicated surgical procedures and other 

complications, following which her ability to walk is substantially 

impaired. Both Roberta and Martin sought damages from the Mall for 

their losses related to Roberta's injuries. 

For its answer, the Mall admitted that it owned and controlled 

the property in question, 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 answer was 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 "nonparty defense, " 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's motion 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 in part, 

by a third party--specifically, Roberta's treating physician, Dr. 

Timothy J. Adams. As part of its proposed seventh affirmative 

defense, the Mall alleged that since Dr. Adams' conduct contributed 

to or caused Roberta's injuries, 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's motion to amend its answer, and allowed the Mall to allege 

as a seventh affirmative defense that Dr. Timothy Adams contributed 

to or caused Roberta's injuries 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. 

The Mall contends that supervisory control is not appropriate 

because factual issues underlie its "nonparty defense," 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 "supervisory control is 

appropriate where the district court is proceeding 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-century case of Slate ex rel. 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 

proceeding within their jurisdiction, but by a mistake 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. 

Racicdt v. 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) urgency and 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 decision has subsequently been 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 Craig v. District Court (1993) , 262 Mont. 201, 202, 864 P.2d 

791, 792-93, Stateexvel.Nelsonv. Dist~ictCaurt (1993), 262 Mont. 70, 72, 863 
P.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 ex reL Deere & Co. v. District Cozrr! 

(1986), 224 Mont. 384, 730 P.2d 396. In Deere, we exercised 

supervisory control to decide another procedural 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's Backhoe contended that this 

cause does not present a sufficient reason for the 

issuance of a writ of supervisory control or other 

appropriate writ. In view of the importance of 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~ervisorv control, 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 ex reL Reid v. 

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 urisdict ion. State ex uel. Coburn v. Bennett ( 198 2 ) , 2 02 

Mont. 20, 655 P.2d 502. We have also said that when a 

cause in the District Court is mired in procedural 

entanglements and an appeal is not an adequate remedy, we 

will issue a writ of supervisory control. State ex rel. Leavitt 

v. District Cowt (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 any verdict will be questionable, 

meaning additional time and expense for a resolution of 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 of 
substantive due process as guaranteed by the federal and state 

constitutions? 

When the District Court granted the Mall's motion 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's order was tantamount 

to a determination that the 1995 amendments to § 27-1-703, MCA, 

satisfied this Court's constitutional concerns about 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 County v. Union Reserve Coal 

Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. 

In MontanaMilkControlBoardv. 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 Nebbia v. 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)he guaranty of due 

process * " * demand^ only that the law shall not be unreasonable, arbitrary, or 

capricious, and that the means selected shall have a real and szd~stantial relation to 

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 same business under other circumstances, because the 

reasonableness of each regulation depends upon the 

relevant facts." (Emphasis added.) Nebbia v. New York, 

291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469 

(1934). 

MilkControlBoard, 141 Mont. at 155, 376 P.2d at 512. 
We have used variations of that standard since. See Newvdlev. 

StateDepftofFamilyServs. (1994), 267 Mont. 237, 883 P.2d 793; To~?n&Country 

EstatesAss'nv. Slater (1987), 227 Mont. 489, 740 P.2d 668; Raislerv. Burlington 

Northern R.R. Co. (1985) , 219 Mont. 254, 717 P. 2d 535; Linder v. Smith 

(1981) , 193 Mont. 20, 629 P.2d 1187. 

However, in essence, substantive due process analysis requires 

that we decide (1) whether the legislation in question is related 

to a legitimate governmental concern, and (2) that the means chosen 

by the Legislature to accomplish its objective are reasonably 

related to the result sought to be attained. Since we have already 

held in Newville that apportionment of liability among those 

responsible for a person's damage is a legitimate government 

concern (Ne~wille, 267 Mont. 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 thoroughly discussed 

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 Consolidated Freighhvays Corporation of Delaware v. Osier (1 97 9) , 

185 Mont . 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 statute did 

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-feasors for the purpose of seeking contribution. 

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 to Deere, § 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 

13 
found 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 the parties 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 "nonpartyn or "empty chairf1 defense was the subject of 

our attention in Newville. 

In Ne~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 Department who was involved in the 

child's placement 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. The plaintiffs settled with Edna Goodwin prior 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 

constitutionality of a procedure which permitted their recovery to 
be 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 plaintiffs had 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 defendants I negligence. Newville, 267 Mont . at 

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

(19811, and concluded that the purpose of those amendments was to 

apportion responsibility for a person's damages among all those who 

might have contributed as a cause to those damages in order that 

those defendants named by a plaint 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's apportionment 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 

defendants1 attempts to apportion blame up to the time of 

submission of the verdict form to the jury. Such an 
apportionment is clearly unreasonable as to plaintiffs, 

and can also unreasonably affect defendants and 

nonparties. 

Newville, 267 Mont. at 252, 883 P. 2d at 802. In other words, 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's intention to assign blame to a 

nonparty; (2) a limitation of time within which notice of a 

nonparty claim has to be made; and (3) a requirement that it is the 

defendant's burden to prove 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 assignment of 

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 remaining parts 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) . 

Senate Bill 212 also added subparagraph (6) to § 27-1-703, MCA 

(1987), which provides as follows: 

(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 liability by 

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 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 defendants contributed as a proximate 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's answer 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 claimant a reasonable opportunity, 

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'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-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 

requirements which had not been present in the 1987 version 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 for which its proponents 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) (statement of John Alke, Montana Liability Coalition). 

However, conspicuous by its absence from the 1995 amendments 

was any opportunity for an unnamed third person to appear and 
defend 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's interests at 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.2d at 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's fault. 

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's fault, 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 

damages based on the degree of a party's fault for another person's 

injuries, the nonparty defense provided for by the 1995 amendments 

to 5 27-1-703, MCA (1987), is not rationally related to that 

legitimate governmental objective, but is more likely to 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 affording Dr. 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 care he 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-one percent 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-one percent or more 

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-one percent responsible. The greater the degree of fault 

that is assigned to unnamed nonparties, the greater the reduction 

in the Plumbs1 recovery. Yet, without the opportunity to appear 

and defend themselves, nonparties are likely to be assigned a 

disproportionate share of liability, and the Plumbsf recovery 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's attorney 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-party practice 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, 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-party 

defendant, anyone who may be responsible for any part of the 

plaintiff 's claim. 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's injury for purposes of contribution. 

Rule 20(a), M.R.Civ.P., has been identified as the procedural 

mechanism 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's damages. 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 

traditional notions 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-feasor may be partially liable for an injured 

person's damages. 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-feasors may not be named as third-party defendants 
for 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 amount paid 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's proportionate share of liability, the 

converse is equally true. We also note that, in spite of our 

decision in Deere, 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 

also be 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 liability by 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 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 defendants contributed as a proximate cause to the injury of 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 

statutory provisions 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 of Fnmily 

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's answer 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 claimant a reasonable opportunity, 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'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-known address 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 remainder of the statute's enactment, 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's intent. 

Based on the foregoing opinion, the District Court's order 

permitting Southgate Mall 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'zh that has been said in the 

majority opinion which is overbroad a.nd entirely unnecessary. 

The first issue in this case is whether the facts and issues 

presented are appropriate for resolution by 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:s v. State (1991), 250 Mont. 

299, 820 P.2d 421. 

The majority in this case conclc.des that 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 on the conclude that to the extent that the 

Racicot decision requires that all three elements be satisfied 

before this Court will accept supervisory control, it is necessary 

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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 this new approach to the granting 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 that 
the Court's conclusion 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-party defendant, anyone who may be responsible for 

any part of the plaintiff's claim. Section 27-1-703 (4), 

MCA (1995), 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's injury for purposes of contribution. 

Rule 20(a), M.R.Civ.P., has been identified as the 

procedural mechanism 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's damages. A person 

joined as a result of these procedures would be afforded 

the opportunity to participate in discovery, crossexamine those witnesses who blame him or her, and present 

evidence on his or her own behalf. Following these 

opportunities, which are compelled by traditional notions 

of fairness, any apportionment of 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 

apportionment of liability as a legislative objective in assigning 

liability based on the degree of a party's fault for another 

party's damages, the majority opinion at that point jumps off the 

track and states: "The one exception to the third-party practice 

alternative referred to in the preceding paragraph arises in the 

situation where a settling tortfeasor may be partially liable for 

an injured person's damages." The majority opinion relies on State 

ex rel. Deere & Co. v. District Court (1986), 224 Mont. 384, 730 
P.2d 396, to support this exception to the third-party practice 

alternative. This reliance is misplaced. 

In Deere this Court stated that "the principal issue we 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. Deere does not address the question of 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 defendant to determine its proportional fault 

for plaintiff ' s injuries, when the nonsettling defendants 

have no right of contribution from the settling 

defendant. Contribution under § 27-1-703 is the 

obligation of "parties against whom recovery is allowed. 

Deere, 730 P.2d at 404. 

Contribution and apportionment of liability are two separate 

and distinct legal concepts. Deere does not support carving out an 

exception to the third-party practice alternative, and, in doing 

so, I respectfully submit that the majority opinion is wrong. 

Certainly the legislature has a legitimate interest in 

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