No. 90-135 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

MARIE WHITING AND ROBERT WHITING, 

Plaintiffs and Respondents, 

-vsSTATE OF MONTANA, 

Defendant and Appellant, 

and 

CHRIS A. PRADA, ANDREA M. PRADA, STACIE L. 

PRADA, individually and STEPHANIE PRADA, and 

ASHLEY PRADA, by and through their natural parents 

and best friends, GREGORY C. PRADA and CHRIS 

A. PRADA, and GREGORY C. PRADA, individually, 

Plaintiffs and Respondents, 

-vsSTATE OF MONTANA, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

I. James Heckathorn; Murphy, Robinson, Heckathorn 

& Phillips, Kalispell, Montana 

Patrick M. ~riscoll; ~hronister, Driscoll & Moreen, 

Helena, Montana 

For Respondents: 

Donald C. Robinson; Poore, Roth & Robinson, Butte, 

Montana (Whitings and Pradas) 

ichard M. Hodges; Van Horne, Vogt, Noall & Hodges, 

enver, Colorado (Pradas) 

APR 3 (3 1991 Submitted on briefs: March 14. 1991 
Justice John Conway Harrison delivered the Opinion of the Court. 

Defendant, State of Montana, appeals from a jury verdict of 

the Second Judicial District, Silver Bow County. The jury awarded 

plaintiffs, Whiting and Prada, damages for injuries sustained from 

a car accident caused, in part, because of an improperly marked 

exit ramp. The jury found that 42% of plaintiffsB injuries were 

attributable to Whiting's negligence and 58% were attributable to 

the State's negligence. We affirm. 

The issues are as follows: 

1) Whether the verdict is supported by sufficient evidence in 

the record. 

2) Whether the negligence of Marie Whiting was an intervening, 

superseding cause of the accident and if so, whether the District 

Court erred by not instructing the jury on superseding cause. 

3) Whether the District Court erred in not granting a new 

trial because of the existence of an alleged quotient verdict. 

4) Whether the District Court erred in not granting a new 

trial because of opposing counsel's alleged misconduct. 

5) Whether the ~istrict Court erred by refusing to allow 

evidence or to instruct on the Prada/Whiting settlement. 

6) Whether the District Court erred in ruling that the State 

is liable for the torts of a joint tortfeasor. 

7) Whether the District Court erred in the method of computing 

damages. 

The undisputed facts are as follows: 
Prior to August 18, 1987 (date of accident) exit ramp 127B had 

been under recent reconstruction. The defendant State of Montana 

(State) has designed certain engineering specifications which 

require the State to place various warning signs (Do Not Enter, 

Wrong Way, Keep Right) at the end of all exit ramps. The State, 

through its employees of the Montana Department of Highways, failed 

to reinstall certain required warning signs at the end of exit ramp 

127B after completion of the reconstruction project. Two ''Wrong 

Way1' signs were, however, in place along each side of the exit ramp 

and up about 368 feet from the ramp's intersection point with 

Harrison Avenue. 

The following sketch illustrates the scene: 
On August 18, 1987, at approximately 5:15 a.m. while it was 

still dark, a 1976 Chevrolet van driven by Marie Whiting collided, 

head on, with a 1985 Oldsmobile driven by Andrea Prada in the 

eastbound lane of Interstate 90 (1-90) near the Harrison Avenue 

interchange in Butte. Marie Whiting was the sole occupant of her 

vehicle. Chris Prada and her daughters Andrea, Stephanie, Stacie 

and Ashley were occupants of the Oldsmobile. As a direct result 

of the collision, the occupants of the vehicles suffered extensive 

damages, too numerous to detail. 

The disputed facts largely focus on the path taken by Whiting 

on entering 1-90. At trial, the State contended that Whiting 

properly entered 1-90 from Harrison Avenue via the entrance ramp. 

The State further contended that after travelling east in the 

eastbound lane, Whiting made a U-turn and began travelling west in 

the eastbound lane thereby causing the head-on collision completely 

independent of the State's negligent failure to mark the exit ramp. 

Conversely, the plaintiffs (Prada and Whiting parties) contend that 

Whiting entered 1-90 via the unmarked exit ramp which allowed her 

to travel, without warning, west in the eastbound lane for a short 

distance until colliding with the Prada vehicle. 

Whiting and Prada brought separate actions against the State 

and both parties stipulated to consolidate in order to further 

judicial efficiency. However, the Pradas entered into a $300,000 

settlement with the Whitings' insurance carrier before they 

commenced their separate action against the State. On December 11, 

1989 the case was tried before a twelve person jury in Butte. On 
December 22, 1989 the jury attributed 42% negligence to Whiting, 

58% negligence to the State and returned a verdict in favor of 

plaintiffs. The court then entered a judgment for plaintiffs1 

court costs and for money damages to all plaintiffs. The 

plaintiffs filed their cost bill on January 5, 1990. The State 

subsequently filed a motion to Alter or Amend the Judgment and 

alternative motions for Judgment Notwithstanding the Verdict and 

for New Trial. The parties briefed and argued these motions and 

on February 28, 1990 the District Court entered an Opinion and 

Order which denied all of the State's post-trial motions. The 

District Court also disallowed plaintiffs1 costs as untimely filed. 

From the judgment and order entered thereon, this appeal was taken. 

I 

Evidence to Support the Jury Verdict 

As we have ruled before, our review of a jury verdict is very 

narrow in scope. We shall not reverse the findings of a jury if 

they are supported by substantial credible evidence. Kitchen 

Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 

789 P.2d 567. When determining whether substantial evidence exists 

to support the verdict, this Court must view the evidence in the 

light most favorable to the prevailing party. Kukuchka v. Ziemet 

(1985), 219 Mont. 155, 157, 710 P.2d 1361, 1363. Substantial 

evidence is defined as that evidence that a reasonable mind might 

accept as adequate to support a conclusion. Although the evidence 

may be inherently weak and conflicting, it may still be considered 

substantial. Local Union No. 400 v. Bosh (1986), 220 Mont. 304, 
313, 715 P.2d 36, 42. Furthermore, when conflicting evidence 

exists, the credibility and weight given to the conflicting 

evidence is within the jury's province. Mountain West Farm Bureau 

Mutual Insurance Co. v. Girton (1985), 215 Mont. 408, 410, 697 P. 2d 

1362, 1363. 

The State's main contention is that the evidence does not 

support a finding that Whiting did, in fact, use exit ramp 127B to 

access 1-90 and that, therefore, plaintiffs have failed to prove 

that the State Is negligence caused plaintiffs ' injuries. The State 

argues, in its brief, that Whiting is the only witness who 

testified that she entered 1-90 via the exit ramp. The State 

complains that Whiting's testimony conflicts and so it is both 

insubstantial, and incredible and that, therefore, the jury's 

verdict which is based on this testimony is not sufficiently 

supported. We disagree. Certainly, any inconsistencies in witness 

testimony go directly to the issue of credibility. However, 

witness credibility is generally a matter for determination by the 

jury under proper instructions from the court. Cottrell v. 

Weinheimer (1960), 137 Mont. 347, 351 P.2d 543. 

The jury had an opportunity to hear substantial testimony 

regarding the exit ramp and the path Whiting took to enter 1-90. 

Whiting testified that she was from out of town and unfamiliar with 

the Harrison Avenue Interchange and exit ramp 127B. Considerable 

evidence was introduced which demonstrated that this particular 

area of Harrison Avenue was confusing, particularly to motorists 

who were not familiar with the area. It is uncontested that the 
subject exit and entrance ramps are parallel and adjacent to each 

other. Furthermore, one large sign hangs overhead indicating two 

routes of travel, "North Interstate 15" and "East Interstate 901', 

with a large arrow pointing in the direction of both ramps. 

Testimony was heard from Lieutenant Dan Butler of the Butte-Silver 

Bow Law Enforcement Agency, as well as from Bonnie Hancock and Don 

Kent who are both employees of a service station located across 

from the exit ramp. All three testified that each had observed 

motorists confused in the area and each had observed motorists turn 

into exit ramp 127B, and engage in a wrong way movement, in an 

attempt to use it as an entrance ramp to 1-90. The State does not 

dispute the finding that it had a duty to place various warning 

signs at the end of the exit ramp in order to warn motorists in the 

event of wrong way travel on the ramp. The State also does not 

dispute the fact that it failed to re-install these signs upon 

completion of a recent reconstruction project. Nor does the State 

dispute that there is evidence in the record which demonstrates 

that the State's failure to re-install these signs created a 

hazardous situation. In fact, the State actually concedes that it 

was negligent for failing to re-install these warning signs. 

Rather, the State only disputes the finding that Whiting drove up 

exit ramp 127B and argues that it cannot be held responsible for 

plaintiffs1 admitted injuries because Marie Whiting's testimony 

conflicts. The State devoted a good deal of text in its brief to 

point out potential conflicts in Whiting's testimony. Regarding 

her access to 1-90, Mrs. Whiting testified that she used the second 
of two ramps, which, according to the exhibits, is exit ramp 127B. 

A. [Whiting] Well, I saw two streets running side-byside and the first one had 15 -- they both had -- it had 

two signs above it, but I assumed the first one was for 

15 and I turned right and began to go along a fairly 

straight stretch before it begins to curve onto the 

freeway . 

Q Now, there are two roadways that you saw to your 

right? 

A. Yes. 

Q. Did you turn on the first or the second roadway? 

A. In the direction I was going, I guess you could say 

it was the second roadway; it was the second one I came 

to, but it was the first one if you are talking about the 

closest to the freeway. 

Mrs. Whiting also testified that she was on the freeway just 

a few seconds prior to impact. The State asserts that this 

testimony is inherently incredible because, if in fact she used 

exit ramp 127B, the distance she would have had to travel along the 

freeway, to reach the point of impact, would have necessarily taken 

her more than a few seconds. This is an argument that should be 

made to the jury, not this Court. As we have already pointed out, 

any inconsistency in a witness' testimony goes to witness 

credibility and is a matter for the jury to consider. We do not 

find any inherent incredibilities sufficient to ~rarrant a new 

trial. 

Mrs. Whiting also testified about overhead highway signs she 

observed and about a pick-up truck which distracted her as she 

drove the wrong way up the exit ramp. During cross-examination, 

the State asked if she could recall, with specificity, out of which 

window or mirror she saw the pick-up truck. The State also 
interrogated her regarding exactly which signs she did, and which 

signs she did not see. 

The jury, after hearing all the testimony and considering all 

the evidence, determined that plaintiffs1 injuries were a result 

of the State's negligence. The credibility and weight given to the 

testimony of each witness is within the province of the jury, not 

this Court. The State cites Graham v. Rolandson (1967), 150 Mont. 

270, 283, 435 P.2d 263, 270 for the proposition that whenever 

witness testimony is inherently impossible, or whenever the 

surrounding circumstances make the story highly improbable or 

incredible, then such evidence is not substantial and the jury 

verdict should be reversed. In Graham, defendant car driver struck 

plaintiff bicycle rider. Plaintiff sued and defendant defended 

with a claim of contributory negligence. To this end, defendant 

testified as to the path plaintiff travelled prior to impact. 

Defendant also stated in her deposition that she did not actually 

see the boy until he was under the car, following impact. Under 

these circumstances, we could not reconcile these conflicting 

statements and so we held that her testimony was so inherently 

incredible that it did not rise to the level of substantial 

credible evidence on which to predicate contributory negligence. 

Turning to this case, we find nothing inherently impossible 

in Marie Whiting's testimony concerning the path she travelled in 

accessing 1-90. Her testimony was that she came upon two parallel 

ramps and took the second ramp. From the exhibits, this would have 

been exit ramp 127B. Furthermore, her testimony regarding which 
signs she did, or did not see, as well as when and from which 

window, or mirror, she saw the "distractingu pick-up did not reveal 

any inherent impossibilities. The State's trial tactics pinpointed 

possible inconsistencies in Mrs. Whiting's testimony and showed, 

at most, that Mrs. Whiting's recollection, regarding signs and 

trucks, was not perfect. However, the facts are undisputed that 

Mrs. Whiting was travelling, in the dark, in a confusing area with 

which she was unfamiliar. The fact that she cannot recall, in 

perfect detail, everything which preceded the accident does not 

mandate a reversal of the jury verdict. 

We hold that substantial evidence exists in the record to 

support the jury's verdict. Accordingly, we will not disturb the 

jury's determination in this case because it is supported by 

substantial credible evidence. 

Superseding Cause 

The court instructed the jury that if the jury found that 

Whiting failed to heed the warning of two "Wrong Way" signs, then 

such a failure necessarily amounted to negligence as a matter of 

law. The State argues that Whiting's negligence was unforeseeable 

and amounted to an intervening, superseding cause which, 

necessarily, served to cut off all liability due to the State's 

negligent failure to re-install certain warning signs at the end 

of the exit ramp. 

A superseding, intervening event is an unforeseeable event 
that occurs after the defendant's original act of negligence. Its 

presence will generally serve to cut off defendant's liability. 

Kitchen Krafters, 789 P.2d at 576. The record shows that 

engineering specifications mandated that the State install 

multiple, or redundant, warning signs at the end of the subject 

exit ramp. The State created a risk by failing to re-install these 

signs at the subject exit ramp. The State, in fact, acknowledges 

that it was negligent in not doing so. The risk created by the 

State's negligence includes the intervention of the foreseeable 

negligence of others. See Sizemore v. Montana Power Company (Mont. 

1990), 803 P.2d 629, 47 St. Rep. 2252. Thus, the question we must 

now answer is: Given the facts presented, was Mrs. Whiting's 

negligence reasonably foreseeable? 

Exit ramp 127B and its companion entrance ramp run parallel 

and are adjacent to each other. Both ramps are easily and equally 

accessible from Harrison Avenue. At the Harrison interchange, 

there are no signs which serve to distinguish one from the other. 

Rather, there hangs over both ramps only one large sign, on which 

is printed two highway routes and one large arrow pointing in the 

direction of, and up, both adjacent ramps. A single set of "Wrong 

Wayn signs are on the exit ramp and up 368 feet from Harrison Ave. 

On the morning of the accident, it was still dark and Mrs. 

Whiting, who was unfamiliar with the area, drove up the exit ramp, 

past the single set of "Wrong Way" signs and crashed into coplaintiff Is vehicle. Given this set of facts, which most nearly 

describes a trap situation, we find it most difficult to imagine 
how the State can claim that Whiting's negligence was not 

foreseeable. Further, the jury was properly instructed on 

foreseeability and still found that the State was negligent. 

Instruction No. 24 states: ''A person who cannot reasonably foresee 

danger of injury from his conduct is not negligent. Foreseeability 

is measured on a scale of reasonableness. It is not measured 

abstractly." Considerable evidence was offered which demonstrated 

that redundant signs are specified on the assumption that a highly 

dangerous area will be encountered by both motorists who are 

unfamiliar with the given area and who become momentarily 

distracted, for whatever reason, and miss the first warning they 

encounter. The assumption that a motorist may become distracted 

long enough to miss a single set of warning signs, is reasonable. 

Certainly, the very purpose of the State's specifications, which 

called for redundant signs, was to prevent the exact kind of 

accident which occurred here. The District Court, as well as the 

jury, considered all the evidence and determined Whiting's 

negligence was reasonably foreseeable and so not a superseding 

cause of plaintiffs1 injuries. As such, the District Court refused 

to offer instructions on superseding cause since all instructions 

must be applicable to the evidence. We find no error since the 

evidence does not show the existence of a superseding cause. 

I11 

Quotient Verdict 

The State moved the District Court to grant a new trial, 
pursuant to 5 25-11-102(2), MCA, on the basis that the jury 

improperly resorted to the determination of chance, and thereby 

arrived at a quotient verdict, in reaching its final verdict 

against the State. Following a post-trial hearing, the District 

Court found that, although an averaging process was used, none of 

the jurors agreed to be bound by the process and denied the State's 

motion for a new trial. The State now appeals this ruling. 

The decision to grant a new trial is within the sound 

discretion of the trial judge and will not be overturned absent a 

manifest abuse of discretion. Zekels Distributing Co. v. BrownForman Corp. (1989), 239 Mont. 272, 779 P.2d 908. The question of 

whether or not the jury agreed to be bound by a quotient verdict 

process is a question of fact. Stanhope v. Lawrence (1990), 241 

Mont. 468, 471, 787 P.2d 1226, 1228. We will not set aside the 

trial judge's findings if supported by substantial credible 

evidence. Stanhope at 471, 787 P.2d at 1228. 

A quotient verdict, pursuant to 5 25-11-102, MCA, constitutes 

grounds for a new trial. Stanhope at 472, 787 P.2d at 1229. Based 

on this Court's discussion in Stanhope, Thomas v. Whiteside (1966), 

148 Mont. 394, 399-400, 421 P.2d 449, 452, and Great Northern Ry. 

Co. v. Benjamin (1915), 51 Mont. 167, 172, 149 P. 968, 969, there 

are two elements necessary to create an invalid quotient verdict: 

(1) The jurors must agree in advance that the result of the 

quotient shall be their verdict; and (2) they must carry the 

agreement into effect. The court found that, although an averaging 

process was used, none of the jurors agreed to be bound by the 
process. The question we are now faced with is: Was the evidence 

sufficiently substantial to support the trial judge's findings? 

Since the evidence is in the form of affidavits, let us first 

consider, in part, the affidavit of juror James endr ricks on: 

Most of the other jurors had actively participated in 

deliberations and many different figures were suggested. 

Finally, it was decided that in order to get the 

discussion organized we should see if we could arrive at 

some proposed numbers so that we could have something to 

start with. Consequently, juror Kathleen Lawson asked 

everyone, including juror Salazar, to write down their 

proposed verdict figures, which they did. Juror Lawson 

then determined what the average of those figures were 

[sic]. 

4. After the proposed figures were determined in 

this manner we went back over all of the figures and 

discussed them again, some of them at length. We also 

went back and looked at the damages summaries that were 

exhibits. As a result, we changed the verdict award from 

the figure that had been proposed by the averaging 

process, in several instances. 

6. At no time did the jury agree or commit in 

advance that the averaging process would constitute our 

verdict. Rather, the averaging process was just a way 

to get proposed figures before the entire jury as a 

starting point for discussion. As described, 

considerable deliberations and changes did occur after 

the average figures were calculated. 

Juror Kathleen Lawson signed a similar affidavit. Jurors Chris 

Cotton, Eugene Chouinard, Ken Schneider, Carol Kruger, and Beverly 

Shipley each signed an affidavit which is in accord with the 

affidavits of jurors Lawson and Hendrickson. These affidavits 

further stated: 

3. The averaging process was used by the jury only 

to obtain a starting point for discussion. At no time 

did we agree in advance that the averaging process would 

constitute our final verdict. The way the averaging 

process was used is correctly described in the affidavits 
of Mr. Hendrickson and Ms. Lawson. 

Juror James Leary signed two affidavits. The first, dated February 

14, 1990, was a form affidavit supplied by the State which stated: 

I I , being of lawful age and 

first being duly sworn, depose and state: 

1. That I served on the jury that heard the Marie 

Whiting and Prada Family, plaintiffs, v. State of 

Montana, defendant, case in the Second Judicial District 

court, Silver Bow County, in December of 1989. 

2. That the jury reached its verdict in that case 

in the following manner. We decided to go by the average 

of the numbers for liability and the amount of damages 

that would be submitted by each juror. Each juror then 

wrote down the numbers for liability and damages that she 

or he felt were appropriate. One of the jurors then 

averaged the numbers for the liability and damages. The 

results were submitted to the court on the verdict form. 

The very next day, on February 15, 1990, juror Leary signed a 

second affidavit which stated: 

2. On February 14, 1990, I signed an affidavit that 

was presented to me by . . . , a paralegal/investigator 

for the State of Montana . . . The affidavit had already 

been prepared and typed. I had never given a statement 

to anyone representing the State of Montana prior to the 

time the affidavit was presented for my signature. The 

investigator did not ask me about whether further 

discussions occurred following the averaging process or 

whether the jury had agreed in advanced [sic] that the 

averaging process would constitute our final verdict. 

4. The averaging process was used by the jury only 

to obtain a starting point for discussion. At no time 

did we agree in advance that the averaging process would 

constitute our final verdict. The way the averaging 

process was used is correctly described in the affidavits 

of Mr. Hendrickson and Ms. Lawson. 

The State also introduced two other affidavits, three in all, 

which were identical to the first one signed by juror Leary on 
February 14, 1990. These two affidavits were signed by jurors 

Michael Downes and Ruth Elliot. 

The evidence, which is in the form of affidavits, conflicts. 

It is within the discretion of the trial court, as the trier of 

fact, to weigh and choose between the conflicting testimony 

contained in the affidavits. Section 26-1-302, MCA and Stanhope 

at 479, 787 P. 2d at 1233. We have read all the affidavits and have 

considered all the evidence, as did the trial court. We hold that 

the trial court's finding, that the jury did not bind its verdict 

with a quotient, was supported by substantial credible evidence. 

We further hold that the trial court did not abuse its discretion 

by refusing to grant a new trial. 

IV 

Counsel Misconduct 

The State contends that plaintiffs' counsel engaged in 

misconduct warranting a new trial. The State alleges that, during 

closing argument, opposing counsel addressed the jury by name and 

improperly appealed to the passion and prejudice of the jury which 

constitutes grounds for a new trial. Allegedly improper argument 

requires reversal of a verdict ''only when prejudice has resulted 

that prevents a fair trial.'' Krueger v. General Motors Corp. 

(1989), 240 Mont. 266, 280, 783 P.2d 1340, 1349. Unless a level 

of prejudice can be shown that manifestly precludes a fair trial, 

then there is no reversible error. Nelson v. Hartman (1982), 199 

Mont. 295, 301, 648 P.2d 1176, 1179. 
Upon reviewing the record, we find that the State failed to 

object to the alleged improper closing comments of plaintiffs' 

counsel. Failure to object to alleged error at trial precludes an 

appellant from raising that issue on appeal. Matter of B.L.O. 

(1984), 213 Mont. 164, 169, 689 P.2d 1246, 1249. Therefore, with 

no more, we hold that the State's appeal on this issue lacks merit 

and its request for a new trial was properly denied by the District 

Court. 

Prada/Whiting Settlement 

As already stated, before the Pradas commenced their separate 

action against the State, they entered into a $300,000 settlement 

with the Whitings' insurance carrier. The plaintiffs jointly moved 

for an order in limine, to allow the court to deduct the amount of 

the settlement from any final award received by the Pradas, but to 

exclude the fact of the settlement, and the settlement amount, from 

the jury, on the grounds that such information would lead to 

substantial confusion and prejudice. After a hearing, the court 

granted the motion and re-affirmed the order in its post-trial 

Opinion and Order. The State now contends that the jury should 

have been informed of this settlement. The State's contention is 

without merit. 

We have already commented on the preferable method to handle 

questions of settling parties. In Azure v. City of Billings 

(1979), 182 Mont. 234, 244-45, 596 P.2d 460, 466 we held: 

The preferable method is to let the jury find total 

damages without disclosing the anount of the settlement 
to the jury, and thereafter the court, upon request of 

counsel, must deduct the amount of the settlement from 

the amount of the jury verdict. 

This was the exact method used by the District Court. If the jury 

is instructed and informed as to the facts of a previous settlement 

with a settling party, which is the method the State now urges upon 

this Court, confusion among the jury is likely and substantial 

prejudice may result to both plaintiff and defendant. We find no 

error. The District Court, in this regard, is affirmed. 

VI 

Tort Immunity 

The State wishes to avoid the effects of joint and several 

liability by claiming that the State cannot be jointly liable for 

the 42% negligence of Whiting because she is not an officer or 

employee of the State. Article 11, Section 18 of the Montana 

Constitution and 5 2-9-102, MCA, plainly provides for the general 

rule that the State shall have no immunity for its torts, unless 

provided otherwise by the legislature. The State has failed to 

present any statutory or other theory under which it is entitled 

to immunity in this case. The District Court properly denied the 

State's motion to alter or amend the judgment on these grounds. 

VII 

Dollar Offset 

The jury awarded the Prada family combined damages of 

$1,680,000 and attributed negligence: 0% to Prada, 42% to Whiting, 
58% to the State. The District Court, pursuant to 5 27-1-703, MCA, 

ruled that the State was jointly and severally liable for these 

damages, less a $300,000 offset (to account for the Whiting 

settlement), and entered judgment for Pradas in the amount of 

$1,380,000. The State contends that it should only be liable for 

58% of the combined Prada award, or just $974,400, arguing that the 

1987 amendment to 5 27-1-703, MCA, dealing with joint and several 

liability among joint tortfeasors, wiped out the dollar offset rule 

as set out in the case of State ex rel. Deere v. District Court 

(1986), 224 Mont. 384, 730 P. 2d 396. Stated differently, the State 

contends that the District Court erred when it deducted only 

$300,000 (dollar offset), rather than deducting the award by 42%, 

or $705,600 (percent credit equal to whiting's negligence). 

Therefore, the question presented is what effect should the 

settlement by the settling tortfeasor have upon the liability to 

the plaintiff of the non-settling tortfeasor. 

In Deere, ruling under 5 27-1-703, MCA (1985), this Court 

decided this very same issue saying: 

[Tlhe claim of the plaintiff against the remaining 

tortfeasors is to be reduced by a dollar credit in the 

amount of consideration paid by the settling tortfeasor, 

and not by a percentage amount proportional to the degree 

of fault of the settling tortfeasor. 

Deere at 386, 730 P.2d at 398, citing Black v. Martin (1930), 88 

Mont. 256, 265, 292 P. 577, 580; and Azure v. City of Billings 

(1979), 182 Mont. 234, 596 P.2d 460. In Deere, plaintiff was 

injured when a bulldozer, manufactured by Deere & Co. and driven 

by an employee of Wade's Backhoe, backed into him. Before judgment 
was entered by the district court, plaintiff settled his claim 

against Deere for $25,000. Wade, the non-settling concurrent 

tortfeasor sought to bring Deere, the settling concurrent 

tortfeasor, back into the litigation by means of a third party 

complaint for contribution or indemnity. This Court held that, 

pursuant to § 27-1-703, MCA (1985), a joint tortfeasor, who has 

settled before judgment is entered in the district court, is not 

subject to claims of a non-settling joint tortfeasor for 

contribution and that, therefore, Deere's settlement with plaintiff 

prevented contribution claims against Deere. Deere at 386, 730 

P.2d at 398. This is because contribution, according to 5 27-1- 

703, MCA (1985), ''shall be proportional to the liability of the 

parties against whom recovery is allowed." We reasoned that this 

language (unchanged by the 1987 amendments) meant that no right of 

contribution exists from a settling tortfeasor because a settling 

tortfeasor is completely exonerated from any further liability for 

plaintiff's damages which precludes any further recovery from a 

settling tortfeasor. 

Having reached that conclusion, we next determined the effect 

the settlement by Deere had upon Wade's liability to the plaintiff. 

Counsel for Wade argued that even though Deere is no longer liable 

to plaintiff by reason of a settlement, it may still be liable for 

contribution to Wade, if Deere's proportional fault of plaintiff's 

judgment exceeds $25,000. In short, Wade proposed a percent credit 

rule to calculate damages, while Deere proposed a dollar offset 

rule. We held that plaintiff's recovery is diminished by a dollar 
offset, not percent, in the amount paid or to be paid by the 

settling concurrent tortfeasor. 

We rejected the percent credit rule in favor of the longstanding dollar offset rule by stating: 

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. 

Deere at 396, 730 P.2d at 404. 

[W]e determine the better practice is to follow what has 

long been the standard in Montana, that the plaintiff's 

recovery is diminished pro tanto, that is, given dollar 

credit based on the consideration paid or to be paid by 

the settling concurrent tortfeasor. Such a holding 

encourages compromise, lends finality to such 

compromises, and keeps in force a practice which the 

legislature has not been shown to have intended to 

change. 

Deere at 397, 730 P.2d at 405. Such was the state of the law after 

Deere. We now consider our holding in Deere in light of the 1987 

amendments to 5 27-1-703, MCA. 

Section 27-1-703, MCA (1987) provides: 

Multiple defendants -- determination of liability. 

(1) Except as provided in subsection (2) and (3) , whenever the negligence of any party in any action is an 

issue, each party against whom recovery may be allowed 

is jointly and severally liable for the amount that may 

be awarded to the claimant but has the right of 

contribution from any other person whose negligence may 

have contributed as a proximate cause to the injury 

complained of. 

(2) Any party whose neqliqence is determined to be 

50% or less of the combined neqliqence of all persons 

described in subsection (4) is severally liable only and 

is responsible only for the amount of neqliqence 

attributable to him, except as provided in subsection 

(3). The remaininq parties are jointly and severally 

liable for the total less the amount attributable to the 

claimant. 

(3) A party may be jointly liable for all damaqes 
caused by the negliqence of another if both acted in 

concert in contributins to the claimantts damases or if 

one party acted as an asent of the other. 

(4) On motion of any party against whom a claim is 

asserted for negligence resulting in death or injury to 

person or property, any other person whose negligence may 

have contributed as a proximate cause to the injury 

complained of may be joined as an additional party to the 

action. For purposes of determininq the percentase of 

liability attributable to each party whose action 

contributed to the injury complained of, the trier of 

fact shall consider the neqliqence of the claimant, 

injured person, defendants, third party defendants, 

persons released from liability by the claimant, persons 

immune from liabilitv to the claimant, and any other 

persons who have a defense asainst the claimant. The 

trier of fact shall apportion the percentage of 

neslisence of all such persons. However, on attributing 

neqliqence amonq persons, the trier of fact may not 

consider or determine any amount of neqliqence on the 

part of any injured personts employer or coemployee to 

the extent that such employer or coemployee has tort 

immunity under the Workerst Compensation Act or the 

Occupational Disease Act of this state, of any other 

state, or of the federal qovernment. Contribution shall 

be proportional to the liability of the parties against 

whom recovery is allowed. Nothing contained in this 

section shall make any party indispensable pursuant to 

Rule 19, Montana Rules of Civil Procedure. 

(5) If for any reason all or part of the 

contribution from a party liable for contribution cannot 

be obtained, each of the other parties shall contribute 

a proportional part of the unpaid portion of the 

noncontributing partyt s share and may obtain judgment in 

a pending or subsequent action for contribution from the 

noncontributing party. A party found to be 50% or less 

neslisent for the injury complained of is liable for 

contribution under this section only up to the percentase 

of neqliqence attributable to him. (The emphasis 

supplied indicates the language added to 5 27-1-703, MCA 

by the 1987 amendment.) 

According to paragraphs (I), (2) and (3), read together, the 

State is jointly and severally liable for the total amount that was 

awarded to Prada, although the State has a right of contribution 

from other parties under certain circumstances. Paragraph (4) 
contains key language regarding the State's right of contribution, 

which was also contained in the 1985 version of the section: 

'IContribution shall be proportional to the liability of the parties 

asainst whom recovery is allowed.'I (Emphasis added.) In Deere, we 

concluded that this very same language required the necessary 

result that Ifno right of contribution1' exists from a settling 

tortfeasor. Deere at 393, 730 P.2d at 402. The 1987 amendments 

left this crucial language intact. As a result, there is no basis 

for changing our holding in Deere on this issue. 

We therefore conclude that our holding in Deere controls in 

the present case. As such, we hold that Whiting, the joint 

tortfeasor in this case, who settled with the Pradas before 

judgment on the claim was entered in the District Court, is not 

subject to any claim for contribution from the State, the nonsettling tortfeasor. 

Our next task is to determine how much credit is due on the 

judgment against the State because of the Whiting settlement, which 

was in the amount of $300,000. The plaintiffs contend that the 

credit due should be limited to the $300,000 paid, whereas the 

State contends that 42% of the total judgment, or $705,600, should 

be deducted. 

According to subsection (2) of § 27-1-703, MCA, those who are 

50% or less negligent (as determined by subsection (4)) are 

severally liable for their own proportional fault and those who are 

51% or more negligent are jointly and severally liable for the 

total less the amount attributable to the claimant. We now must 
determine the meaning of the phrase: ''jointly and severally liable 

for the total less the amount attributable to the claimantI1, since 

the State claims that this language means that a tortfeasor, whose 

negligence is 51% or more, is jointly liable for only its 

proportional fault of the damage award. Subsection (2) of the 

statute clearly states that such liability shall extend to the 

total (of the award) "less the amount attributable to the 

claimant. The statute, as amended, clearly assesses joint and 

several liability to the State, the non-settling concurrent 

tortfeasor whose negligence is 58%, for of the Prada award 

rather than just 58% of the award. Therefore, a plain reading of 

the statute lends no support to the State's contentions. Policy 

considerations, as noted in Deere, warrant our adoption of the 

dollar offset rule. Under the percent credit rule, a plaintiff 

will never recover the full amount of any judgment against the nonsettling tortfeasor if he settled for an amount less than the 

amount of the judgment attributable to the fault of the settling 

tortfeasor. This, in our estimation, is not adequate protection 

for the plaintiff. The dollar credit rule, on the other hand, is 

more effective in encouraging compromise and settlement, does not 

lead to inequities, and is a method which the legislature has not 

shown an intention to change. In the case of a jointly liable nonsettling tortfeasor, the dollar offset rule assures plaintiff of 

recovering the entire amount of any judgment rendered--such is the 

protection of joint and several liability. We are aware of the 

burden which the dollar credit rule places on a jointly liable non- 
settling tortfeasor--namely, to insure plaintiff against his own 

poor judgment when settling for less than he is entitled. 

We conclude this is an appropriate result in encouraging fair 

and just settlements. The compelling reasons which we described 

in Deere in favor of the dollar offset rule are still applicable. 

Furthermore, the linchpin of this holding was our reasoning that 

a right of contribution does not exist as to a settling tortfeasor. 

This linchpin still exists. We therefore hold that the judgment 

of the non-contributorily negligent Pradas against the State is to 

be reduced by a dollar credit in the amount of $300,000 which was 

paid by Whiting, the settling tortfeasor, and not by $705,600 which 

equals the 42% of the Prada judgment. 

The District Court correctly applied the precepts set out in 

Deere and the provisions of 5 27-1-703, MCA as amended in 1987, in 

ruling that the State was jointly and severally liable for Pradas' 

damages, less a $300,000 offset for the Whiting settlement. The 

judgment of the ~istrict Court is hereby affirmed.